Cynulliad Cenedlaethol Cymru

Welcome, everyone, to the meeting of the Constitutional and Legislative Affairs Committee. I will just start off with the usual housekeeping rules applying, and say that there are no apologies. Suzy Davies, because of Commission responsibilities, will be attending shortly, but she's notified us that she will be here once those responsibilities have concluded. 

If I can welcome the Minister, Rebecca Evans, to the meeting to give evidence—thank you for that. Would you like to introduce your officials? 

Would you like to introduce yourselves?

Emma Williams, deputy director, housing policy.

Helen Kellaway, legal services, Welsh Government. 

Huw Charles. I'm the Bill manager for the Bill. 

Okay, well, thank you very much. We are considering, as you know, the Renting Homes (Fees) (Wales) Bill, and we're grateful for you being in attendance. So, just starting off with some of the questions, as you know, our prime purpose is very much looking at the technical aspects of the legislation rather than the specific policy, except where that interacts with the technical drafting of the legislation. So, the first point is obviously on competence. You've obviously declared that it is within competence. There are those who would say that, of course, much of it covers consumer protection issues. Those are issues that the Supreme Court has of course commented on from time to time relating to sale and supply of goods and services, and, of course, that is a reserved area under the Wales Act 2017. I was just wondering if, perhaps, you could expand a little bit on the way you've approached the competence issue. 

Thank you. The core purpose of the Bill is very much within the housing domain in the sense that it is to enable people to access the private rented sector more easily and then move within that sector more easily. So, we're very clear—and, obviously, the full consideration that you would expect has been given to this—that this is very much a matter that is within the Welsh Government's competence, being a housing matter, as it is.

And in considering the goods and services issue, the approach you adopted, presumably to defer to the housing responsibility overriding the goods and services aspect—is that the approach that has been adopted?

Yes, this is very much about, as I say, access to and the ability to move within the private rented sector. So, it is a housing matter rather than anything that relates to consumer protection, for example. 

I'll ask Helen, if I may, to come in on this particular point.

We considered that the purpose of the Bill is housing and that the consumer protection reservation is not engaged.

Okay, fine. Thank you for that. It's obviously an important point. Have you had discussions with the UK Government? Have they raised anything on this? There have been discussions about the drafting of the Bill and those issues around goods and services. 

We've been fully engaged throughout with the UK Government on this issue, and you'll be aware, of course, that the UK Government has introduced the tenants Bill, the tenant rights Bill [correction: introduced the Tenant Fees Bill] for England, which is within the English domain only. It intends to achieve many of the same objectives that we do in terms of preventing the payment of fees by tenants. So, that in itself, I think, sends a strong message that the UK Government sees this within devolved competence. So, we've had discussions about both our Bill and their Bill.

We've also had discussions with the Scottish Government, who have already legislated in this area, in order to learn from their experiences and to better understand the kind of challenges that they've had in terms of implementing legislation in this area. So, good engagement has been undertaken with both of those Governments. 

Okay. Obviously, one of the considerations is whether there are any human rights elements to this. One aspect that does arise, of course, is that, for a breach, a landlord can be subject to more than one penalty, and I'm just wondering how you've approached that particular aspect and whether that raises any issue or concern in terms of human rights legislation.

So, you'll see in the explanatory memorandum that we have undertaken the human rights assessment, and the assessment overall concludes that the Bill would have a positive impact on human rights because many people with one or more protected characteristics are more likely to be renting in the private sector. So, in a sense the Bill overall will have a positive impact there. With regard to the specific point that you make about the publicising of fees and the penalty were an agent not to be compliant with that, the maximum fine there for a breach is £5,000. Without including this amendment in the legislation, it could mean that an agent could potentially consider that that fine would be something that they could absorb within their business, so it might be cost-effective for them actually to continue making breaches. So, the ability to ensure that there is that potential for repeated maximum fines to be given is in the legislation to prevent that kind of poor practice.

Yes. Obviously, you're referring to section 18 of the Bill and, of course, 18(1)(b) specifically allows for more than one penalty to be imposed on a letting agent in relation to the same breach of duty. So, you've given consideration as to whether that is really fair and proportionate and the conclusion you've come to, obviously, is that it is.

Yes, it is both fair and proportionate in terms of deterring poor practice and, as I say, that kind of approach where letting agents could consider this as almost part of their business model were they to think it was cost-effective to pay the fines.

The explanatory memorandum accompanying the Bill doesn't give any detailed analysis of the basis of the legislative competence. There's a slightly different approach that's been adopted with previous legislation. It basically states competence but doesn't give a sort of detailed analysis. Is that something that you might actually want to correct within the explanatory memorandum?

I think that the approach that we've taken is certainly appropriate to the Bill itself. So, there's no one type of approach that is taken for all legislation; it does depend on what's appropriate to the Bill. I think that our approach has been appropriate, both in terms of the level of engagement that we had in developing the Bill and also in the policy intent of the Bill. Helen, if you don't mind, did want to come back on the previous question.

Yes, it was about all the amendments in section 18. I just wanted to clarify that they would ensure parity of treatment between tenants in England and Wales. I just wanted to add that to the previous question.

That's helpful. I think the only other point I'd make, which is on the explanatory memorandum aspect and the competence issue, is that it is a very basic statement. Other legislation in the past has actually given more detailed reasons. The only reason I raise this is because, of course, you've answered very well today for the record on the approach you've adopted in respect of the goods and services reservation, but you'd normally expect within the explanatory memorandum that there would be some clarity on the approach and what you have done. I won't pursue that any further other than that it just seems that there are different practices from time to time on this issue when it arises in other legislation. I think the childcare one had a much more detailed analysis and the same with other pieces of legislation from time to time.

I think that this piece of legislation doesn't raise any novel or contentious issues, which I think explains the kind of approach we've taken thus far, but if the committee does want to make some reflections on this in its report, I'd certainly be keen to consider your views.

Okay. Well, then, the other one, of course, to move on to is the issue of Royal Consents, which obviously are required. Have those been obtained?

Not yet, and the reason for that is that this is something that we would seek to obtain after we know the amendments that might come forward to this piece of legislation. The Bill will bind the Crown, including the personal interests of the Queen and the Duke of Cornwall. They might be affected by the Bill. The Renting Homes (Wales) Act 2016 before it also binds the Crown, who will be issuing what will become standard occupation contracts once the Act has fully commenced. That will ensure that there is parity for tenants regardless of who their landlord might be, but we need to see the fullness of the Bill in terms of any amendments that might come forward before seeking Crown consent. That seems like the logical way in which to do things for this Bill.

Okay. Just to move on, then, to a number of other areas—and that is, I suppose, the reason why you've adopted the approach of legislating as opposed to what has been suggested elsewhere, as a code of conduct, or a code of standards, a voluntary fees code. Perhaps you could outline why you feel it's necessary to legislate as opposed to looking at what happens quite often in other areas to a voluntary code.

We have considered all options in terms of achieving the goal of ensuring that tenants do not pay fees. A voluntary approach simply wouldn't work, because we've tried, for example, with the landlord accreditation system in the past to encourage a voluntary approach; only 2,000 of what we understood to be around 70,000 landlords engaged with that at the time. Equally, I think there are likely to be some commercial disadvantages to letting agents or landlords, should they engage with such a scheme, because, obviously, they would be operating in a different market to other landlords and agents who are charging fees. So, that would put them at a disadvantage, and I can't see any motivation, really, for a letting agent to become involved in that kind of voluntary scheme.

So, I was just wondering if you could summarise what the evidential base was for deciding to legislate as opposed to a voluntary arrangement.

Because, quite simply, we didn't think the voluntary arrangement could help us achieve our goals of ensuring that nobody was to pay fees within the sector other than those that are permitted: so, security deposits, holding deposits, rent and payments in default of the contract. There's nothing that could be done voluntarily that could achieve that kind of approach right across the sector, where we have tens of thousands of landlords, 20,000 [correction: 3,715] letting agents—this is a very large sector with lots of people operating in different ways. It's important that there is consistency, I think, across the sector.

And during consultation, was that issue raised at all?

The potential for voluntary approaches was raised as one of the ideas. Huw might have more reflections on that.

Yes, there was some interest from the likes of the Residential Landlords Association and those bodies representing landlords. So, obviously, that was something that they were keen to promote, but, as the Minister outlined, it wasn't—. The consensus that emerged from the views from stakeholders was that the arguments in favour of legislation were more compelling for the sector and more appropriate and, based on that, the conclusion was that legislation was appropriate.

And presumably the heavy reliance on, I suppose, the knowledge and expertise of the sector, and the complexity of the sector will be factors as well.

Indeed, yes.

Okay. Perhaps I can move on to just one final question from me before we move on. There's been, obviously, similar legislation brought forward at UK level—isn't it the Tenant Fees Bill? I wonder what relationship you’ve had with that, what the state of that is, and where you see this legislation differing from the approach that's been adopted by the UK Government on what is a similar issue, and an issue that's arisen as a matter of public concern across the UK?

So, officials have been engaged very closely with the UK Government as we've developed our Bill but also as the UK Government has developed its Bill. There are some quite significant details that are different—for example, the level of the fixed-penalty notice, as we propose, would be different here in Wales as opposed to England, but there are also some quite robust reasons behind that. For example, in Wales we have Rent Smart Wales, which, as an ultimate sanction—a landlord or letting agent wouldn't be able to let out their properties. That's a huge disincentive for bad behaviour, whereas across the border they don't have anything similar to that. So, we're operating in different contexts, but the engagement, I think, has been very good.

We've also been keeping a close eye on the evidence that the committee in England has been receiving as well, because there are issues that were brought up there that we've tried to incorporate and address in our Bill, for example attempts to close loopholes that were identified in the Bill, and the potential for that in England in terms of landlords who might add new payments, for example, in future. So, we've tried to avoid or close any loopholes that there might have been.      

The UK Government, with the approach that they've adopted, which is one that is generally regarded as good practice in these areas—it was to actually publish a draft Bill and then to consult on the actual Bill. So, there was far greater clarity about the practical implementation and the practical impact on the sector. Now, Welsh Government has chosen not to do that. I was wondering if you could outline to the committee why that is. 

Well, we are confident that the policy behind the Bill is robust, and there was extensive consultation across the housing sector both in terms of landlords and letting agents, but also right across the sector and those who represent the rights and the views and the experiences of tenants as well. We also commissioned some comprehensive independent research to give us another look at the sector—what the issues might be. So, we feel that we've had good engagement. We had more than 680 responses to our consultation. We've held round-tables and engaged widely and in depth on the issue, so in that sense the sector is very well aware and very engaged with what our proposals are, and what the aims of the Bill are.  

But bearing in mind that UK Government adopted the practice—which, again, is regarded as good practice—to actually consult on a draft Bill, I presume a decision was specifically taken not to produce a draft Bill to consult on that, and, often, seeing the actual potential legislation in front of you can impact on the quality of the consultation. Was it something that just wasn't considered, or is it something that was considered but not considered to be appropriate, and if so, what would have been the reasons for choosing one or the other? 

The Bill is very much as per the consultation document, so what is reflected on the face of the Bill is very closely aligned to those specific questions that we consulted on. So, in that sense, the Bill is what came naturally from the consultation document. There are no surprises, no kind of hidden extras within the Bill that's before committee. But as I say, engagement has been extensive right across the sector.   

Okay. I'll move on to Dai Lloyd. 

Implementing the renting homes Act 2016, as you can imagine, requires a substantial amount of work in terms of developing the regulations that sit underneath that. That said, work has progressed very well and things are very much developing there, but, again, when we introduced the regulations there was a commitment to consult on them, so obviously that does take some time. 

One of the key issues really, though, is that it does require changes to the civil procedure rules and the court information technology systems, and, obviously, these are non-devolved matters. And we are working closely with the Ministry of Justice and Her Majesty's Courts and Tribunals Service to effect these changes, but, unfortunately, to a large degree, the timing of that is outside of our hands—unfortunately. 

No, the Act, as it is, is worded in this way so that it applies equally well to existing legislation and to the renting homes Act when that's fully implemented.

Okay. Mandy Jones.

Thank you. Despite the standard occupation contracts being defined in the Renting Homes (Wales) Act 2016, for clarity, should this Bill include a full definition, or at least specify that the provisions in this Bill relate to properties wholly in Wales?

I don't think it's necessary to specify that on the face of the Bill because this Bill is part of a suite of legislation. It follows on from the renting homes Act where this issue was fully described, and I think that there is clarity there.

Okay, thank you. This is the Welsh Government’s second renting homes Bill and it also interacts with the Housing (Wales) Act 2014. Is this part of a plan to create a body of subject-specific law ahead of potential consolidation or codification of the law?

Well, we thought long and hard about the title for this Bill, and the Bill is titled as it is to show that it is part of a suite of legislation, so it maintains that link to the previous renting homes legislation. But, yes, the Counsel General is very keen on a programme of work to improve the accessibility of law, and I think that it's no more important, really, in any area than housing, where people need to be very clear about their rights, and the law needs to be easily understood by people so that they can apply those rights.

So, yes, this is part of a wider approach, but I do think that there is important work that has to be done in due course in terms of consolidation and the codification of Welsh law, particularly, I think, in the area of housing law.

Thank you.

Okay. Dai Lloyd.

Thank you. I do think that we have that right balance between what's on the face of the Bill and what's to be set out in regulations, and that's because we need to futureproof the Bill, really, and to allow for flexibility in future. So, for example, the regulations that give Welsh Ministers the power to set the cap on the level of deposits—well, clearly, that's not something that is appropriate on the face of the Bill; that's much more appropriate in regulations where we can reflect changes in the housing market and so on, and make sure that legislation moves appropriately and is futureproofed.

I don't think we'll be in a position to lay or give draft copies of regulations before that point, and that's partly because we've committed to consulting widely in the development of those regulations. For example, regulations—. Again, to stick with the capping of the security deposits, that would require quite extensive consultation, both with the tenants and organisations who represent them, and also, of course, the letting agents and landlords as well. So, I don't think that we would be in that position. However, I do think that we've set out the policy intent quite clearly of all of these things within the documentation that we've already provided.

As you say, both of these are important in terms of how the Bill will be able to operate in practice. I suppose the question back to committee would be: 'What would a superaffirmative process add to the process that the regular affirmative process wouldn't?' And, again, this is something that I'd be more than interested in the committee's thoughts on when you provide your report. Again, these are areas where we have committed to full engagement with stakeholders before any of this comes into force, but I'd be keen to hear what you think would be missing from the affirmative procedure. 

Thank you very much for that. This relates to some of the comments I made earlier in terms of why we would seek to permit somebody—to find that they were in breach on multiple occasions, and it's part of the effort of the Bill to try and promote good behaviour and to have letting agents absorb these things within their practice.

So, the two powers in section 18 are, essentially—the first is to allow the fine to be imposed more than once and the second is to extend it to online advertising. So, Welsh Ministers wouldn't have any discretion beyond whether and when to exercise those two powers. The way in which those powers would be exercised would already be agreed through the Bill through the Assembly, were it to be passed. I don't know if Emma wanted to add anything at this point. 

I think you've covered it really well there, thank you, Minister. I mean, in relation to all of these types of powers, the Bill has sought to limit those powers so that they don't extend beyond what's absolutely necessary in order to achieve the policy objective. The different treatment of this particular section was as the Minister describes, because we have so very specifically set out on the face of the Bill what the restriction in use of that power is, so it was felt that this scrutiny process would leave little else to be scrutinised, if you see what I mean. 

Again, this is to ensure that the Bill is relevant under both systems and to make sure that any issues that there might be in terms of a delay to the implementation of the renting homes Act doesn't cause an issue for this piece of legislation. I should also say that I've committed to producing all of the relevant documents for the renting homes Act at least six months before the Act comes into place, because I know that people within the sector don't want to find themselves in a position where they aren't ready for the Act. So, that documentation will be produced within six months [correction: produced at least six months before], but I can't, unfortunately, give a comprehensive date for that. I don't think I said to committee that it would be implemented in March 2019; I said that, were there to be a delay, it would be due to the issues that we're having with the courts systems. I haven't given a concrete date yet.

Again, this is an area where we've committed to consulting widely before using or making that regulation, and again, it's another area where I'm keen to hear committee's views as to whether they believe that we've chosen the right procedure for it. But essentially, it will be subject to full consultation.

This is one of the areas I referred to earlier in terms of our attempts to futureproof the legislation—to avoid any additional terms that might be set by landlords or agents in order to try and recoup some of the money that they will not be receiving as a result of the legislation. In terms of the approach behind it, I think I'll ask Emma or Helen to share some of their reflections.

I think, in essence, this was felt to be quite a technical change and therefore appropriate for the negative procedure, as the Minister describes. We are confident that the way we've set this out on the face of the Bill at the moment covers all eventualities, but as this is about trying to ensure that people can't find innovative ways to circumvent our policy intention here, we need the option to be able to tighten and address any loopholes that come up. I don't know if Helen has anything further to add.

I think that's about it, in a nutshell. And it allows that flexibility in case there are any loopholes that come to light as the Bill is implemented. Then we have that power should we need it.

But it is quite a significant power, isn't it, changing the meaning of 'permitted variations' in an area that is so large and has such significant consequences. I mean, when we've had this matter arise before in other legislation, we've always expressed real concerns about the fact that the affirmative procedure isn't applied, and the Government response has tended to be, 'Well, it gives us flexibility, and so on', but there is a line as to where flexibility intrudes into the exercise of significant powers. Do you not think that this is something where perhaps you might go back and want to consider whether this is a matter that should be affirmative rather than negative?

Yes, certainly. We'll give extra consideration to that particular issue and obviously look forward to your report, which I'm sure will make reference to this as well.

I've deliberately avoided using the word 'technical'. [Laughter.]

We know what you mean, I think. We move on to Mandy Jones.

My next question is: the statement of policy intent states that, where appropriate, the Welsh Government will consult on draft regulations before they are made. A similar statement is also contained in the explanatory memorandum. What does 'appropriate' mean in the context of this Bill?

We'll consult on either the point of policy or on draft regulations in all cases. We've given that commitment already. So, this phrase is meant to mean that we'll choose the most appropriate way in which to undertake that consultation. So, for example, it would be good practice, I think, to consult very widely, as I've said, on the issue of any cap on security deposits, but then, at the same time, it might be more appropriate to undertake a more focused engagement with relevant stakeholders on areas that—and I'm going to say the word now—might be of a more technical nature. But, either way, we would seek to undertake the engagement fully in line with what is established as good practice.

Do you not think it might be more appropriate to actually tighten up this piece of the legislation?

The whole legislation or—? 

This particular part. I suppose the point we're making—and maybe I was trying to be a little bit flippant on it—is that the use of 'where appropriate' is basically an open door to Government to choose to do whatever it really wants to do on it. And the reason why we tend to focus on some of these things, particularly with the responsibility of this committee, is for that reason—it's a lack of precision, a lack of knowing exactly what Government will do or why or when it might do something. And that's why we're sort of quite unhappy with the phrase, rather than a clearer explanation as to approach.

I'm happy to revisit the use of that phrase to try and seek a way forward that does allow us to take, I suppose, an appropriate and proportionate routes of consultation. I'm happy to revisit that phrase and give it some further consideration.

Did you want to ask more on this particular point? I just wanted to come back to the Minister on this. The policy intent is:

'Where appropriate, Welsh Government will consult on draft regulations before they are made.'

Draft regulations are extremely important, but we have absolutely no idea as to in which circumstances you might engage in consultation. Consultation is extremely important on these matters, and obviously you do have to weigh them up. Our concern is, of course, the fact that it is an open-door policy. It may be very flexible for Government. The question is whether it's good to have that in actual legislation. Maybe I won't labour the point, because you did answer, but I think this is a matter that probably we will give some thought to when we consider the evidence later.

The reference to 'where appropriate' is in the explanatory memorandum rather than on the face of the Bill, but I'm happy to review it, when we redraft the explanatory memorandum, to give committee more clarity as to what the intention would be.

We will come back to that. Sorry—Mandy Jones.

Thank you for that. We need to get the wording right on things like this so that, you know—. Anyway, chapter 9 of the explanatory memorandum contains a summary of impact assessments required when bringing forward new legislation. Standing Order 26.6 requires the Welsh Government to undertake a justice impact assessment. The explanatory memorandum, again, for the Childcare Funding (Wales) Bill contained a useful link to the assessment. This is not the case with this Bill. Is this an oversight?

Well, we came at it from the assumption that Assembly Members and interested parties would be familiar with the impact assessment gateway, which is where this information and much more is held. But, again, I'm happy to add this to the explanatory memorandum if the committee thinks it would be helpful to have that link there.

And, again, chapter 9.15 of the explanatory memorandum gives a summary of the privacy impact assessment. It states that

'The Bill does not produce any new requirements relating to privacy or the sharing of information.'

Yet in section 10 of the Bill, it allows an authorised officer of a local authority to require a person to produce documents and share information. Is this an oversight in the impact assessment again?

This is an area where we've considered that, actually, things might be more complicated, and we'll be revisiting this area when we redraft the explanatory memorandum. 

Okay. Thank you.

Okay. I think that brings us to the end of the points we want—unless any other Members have any specific points. Thank you for your succinct answers. We'll obviously be sending you a transcript of the evidence for factual accuracy, and we'll produce our report in due course. Thank you very much—and to your officials for attending.

Thank you.

We now go back to the remainder of the agenda. If I can take us now on to item 3, instruments that raise no reporting issues under Standing Order 21.2 or 21.3, we have two instruments with clear reports—negative resolution instruments. Item 3.1—that's the Health Education and Improvement Wales (Transfer of Staff, Property, Liabilities) (Wales) Order 2018. A special health authority, Health Education and Improvement Wales, called HEIW, has been established under section 22 of the National Health Service (Wales) Act 2006. Its principal functions relate to the planning, commissioning and delivery of education and training for persons who are employed, or are considering becoming employed, in an activity relating to the health service in Wales. It will commence on 1 October 2018. A number of these functions are currently carried out by the Workforce Education and Development Services in Velindre NHS Trust. This Order therefore makes provision for the transfer of staff—that's article 3 of the Order—and property rights and liabilities—that's article 4—from Velindre NHS Trust to HEIW. Article 5 makes provision for the transfer of data, records and information, and article 6 makes provision for the continuity of things done by, or in relation to, Velindre NHS Trust. Any comments from Members? Any other comments?

We then move on to the next item, which is the Rating Lists (Valuation Date) (Wales) Order 2018. Now, by virtue of sections 41(2) and 52(2) of the Local Government Finance Act 1998, when read in conjunction with the Rating Lists (Postponement of Compilation) (Wales) Order 2014—that's a mouthful—made under section 54A of the 1998 Act, non-domestic rating lists for Wales are to be compiled on 1 April 2017 and every fifth year afterwards. So, paragraph 2(3)(b) of Schedule 6 to the 1988 Act provides that, for the purpose of compiling such lists, the rateable value of a non-domestic hereditament is to be determined by reference to the day on which the list must be compiled or on

'such day preceding that day as may be specified...by order'.

Article 2 of this Order specifies 1 April 2019 as that day for the purposes of the next local and central non-domestic rating lists to be compiled once the Order has come into force. And article 3 revokes the rating lists Order of 2014, which specifies the day by reference to which properties were to be valued for the purpose of the lists compiled on 1 April 2017. Any comments on that? I thought there might not be.

On to item 4, then, instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3, and we move on to the negative resolution instruments. 

The Petroleum Licensing (Charges) (Wales) Regulations 2018—you have before you a report, the regulations and explanatory memorandum. These regulations make provision for the Welsh Ministers to charge fees in respect of an application to them for a petroleum licence under the Petroleum Act 1998, and for consents required under those licences for various listed activities. Section 23 of the Wales Act 2017 transferred licensing functions to the Welsh Ministers and those provisions are due to come into force on 1 October 2018. So, are there any comments from the lawyers on this?

There are three suggested merits reporting points. The first is that these regulations say that fees payable under the regulations—for example, the fee payable on application for a petroleum licence—are paid into the Welsh consolidated fund, which is a reporting point under Standing Order 21.3. For interest, what is a petroleum licence? The explanatory memorandum has a neat summary—it's on pack page 46, if Members would like to read:

'A petroleum licence confers on the licence holder an exclusive right to search and bore for and get petroleum within the licensed area. It also gives the developer the right to own the product extracted from the ground so as to sell it to third parties.'

And the fees payable for an application for such a licence are payable into the Welsh consolidated fund. The second reporting point under the merits scrutiny is that the regulations prescribe fixed fees for the majority of petroleum activities listed, but, for one particular consent, the application fee is £595 for each day required to determine the application. And, again, the explanatory memorandum justifies this approach, saying, 'Well, it means that, when you're applying for a licence, you won't know what the fee is because you won't know how long it'll take'. The explanatory memorandum justifies this, saying, 'Well, some applications will be simple, some will be complex'. And then, for the complex ones, you will be expected to pay £595 for each day required to determine the licence.

And the third merits point is that the regulations say that any fees due under the regulations are recoverable as a civil debt. This simply makes it easier for the Welsh Ministers to recover unpaid sums, again, as neatly explained in the explanatory memorandum. 

Can I just ask: is there a maximum explained in the memorandums that the £595 per day can be done? What if somebody is really, really slow and they take a few weeks but some people are only taking one day? What are the circumstances?

I can't see a maximum here. Then you expect the Government to charge only for the time it's actually spent on that application. And if it does take, for example, 10 days, or whatever, then that would be fee for a particularly complex and probably large petroleum licence. But I don't see a maximum number of days for the fee in the regulations.

Okay.

Presumably, that would be difficult to do, in any event, because some of these, I suspect, will be enormously complex and almost unpredictable as to how many days might be involved, obviously involving very substantial amounts of money and investment. Okay, any further comments on that?

Just run with those merits points.

Okay. So, we note those, and thank you for that clarification. 

On to item 4.2, the CRC Energy Efficiency Scheme (Revocation and Savings) Order 2018. We have the report, regulations and an explanatory memorandum. This is an Order that revokes in the UK the CRC Energy Efficiency Scheme Order 2013. It also makes amendments to the 2013 Order to the extent that it continues to operate by virtue of savings that are made, and it amends the CRC Energy Efficiency Scheme Order 2010. Both the 2013 Order and 2010 Order establish an emissions trading scheme that applies to direct and indirect emissions from supplies of electricity and gas by public bodies and undertakings. If I might, perhaps, go to the lawyers first for any comments on this—.

So, this is a statutory instrument laid before all four legislatures. As a result, it's made in English only. While this is a very familiar reporting point for the committee, what's slightly different about this Order is it's an Order in Council made by Her Majesty, meaning it will have been approved personally by the Queen at a meeting of the Privy Council. But the Climate Change Act 2008 does give Her Majesty the specific powers to make Orders in Council around energy efficiency schemes.

Okay. Any comments from Members?

Just the usual comment on the English only bit.

Yes. I think we can formally note that.

Affirmative resolution instrument, the Law Derived from the European Union (Wales) Act 2018 (Repeal) Regulations 2018—again, a report, regulations and explanatory memorandum. And, of course, as we know, we have the legislation that was passed in respect of Assembly powers in regard to those powers in devolved areas that reside in Brussels, and the situation post Brexit in the light of the agreement that was reached between the Welsh Government and the UK Government. This is the legislation, as agreed, to repeal that Act. Comments?

Just to note the significance of these regulations, which do repeal an Act of the Assembly.

Okay. Any comments from Members?

When will that be repealed—? How long—? What timescale are we looking for?

The third of October is when the repeal will take effect.

Possibly one of the shortest-lasting Acts ever, but I'm not going to rehearse the political arguments just now.

No, I'm sure those will arise somewhere else at some stage.

On to item 5: instruments that raise no reporting issues under Standing Orders 21.2 or 21.3 but have implications as a result of the UK exiting the European Union. The first item there is the Transmissible Spongiform Encephalopathies (Wales) Regulations 2018. I'm sure that Dai Lloyd will correct me if I've got that one wrong.

'These Regulations, which apply in relation to Wales, revoke and remake with amendments the Transmissible Spongiform Encephalopathies (Wales) Regulations 2008...These Regulations continue to enforce Regulation (EC) No 999/2001 of the European Parliament and of the Council laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies'. 

Any comments from the lawyers, other than on my pronunciation?

Only to note the usual point, as the committee sees on a regular basis, that it's an example of EU-related law that will continue to apply after exit day and, again, animal health is an area that, according to the intergovernmental agreement between the Welsh Government and the UK Government, is an area that is likely to be subject to common frameworks.

Thank you very much. I think we are all incredibly impressed. I think for a split moment then you confused the translator as well, but—. 

We move on to item 6, papers to note. There's a letter from the Minister for Children, Older People and Social Care on the Childcare Funding (Wales) Bill. As Members will recall, we produced a fairly robust response to the drafting of the Bill, and the letter identifies, I think, quite significant concessions from the Government on the drafting—in fact, agreement with quite a number of the points we raised. It's to be noted. Was there any comment to be made on it? I think the letter speaks for itself.

Absolutely.

It is on the record and, of course, was the subject of the debate on the report in Plenary last week.

Item 6.2 is a letter from the leader of the house: European Union (Withdrawal) Act 2018, regulations made under Schedule 4. Again, that is just to be noted. I think this is formally noted. We did see it last week, and it is a technical point on interpretation of the legislation. If there are no comments on that and we can note that, we move on to item 7.

We move into private session now. We are quite ahead of time at the moment, but we can deal with, I think, quite a number of the items that we have. Is everyone agreed that we move into private session?

Welcome back to the Constitutional and Legislative Affairs Committee. This session is for the scrutiny of the private Member's Bill, the Autism (Wales) Bill. So, I welcome Paul Davies and your colleagues to the committee. Just to say again, just to remind you that the usual housekeeping rules apply. Perhaps we'll kick straight off. I don't know, Paul, if you want to introduce your two colleagues with you.

Yes. To my left is Steve Boyce, my research adviser, and to my right is Enrico Carpanini, who's my legal adviser.

Welcome to you. I suppose the first couple of questions—. As you know, this committee is looking at the efficacy of the legislation—the drafting, the technical aspects of it—rather than the specific policy, except where they overlap. So, the first thing is, just in terms of the competence issue, I don't know if you just want to outline the position with regard to competence, and, for the record, how you came to the conclusions on the competence.

Well, I think the competence is pretty clear. The explanatory memorandum accompanying this Bill makes clear my view that the Bill is within the legislative competence of the National Assembly for Wales—specifically section 2, which actually deals with competence in detail. And, of course, the Presiding Officer's statement on 13 July 2018 confirms that the Bill is within the competence of the Assembly.

Thank you for that. I didn't anticipate any issue on that but, for the record—. And, again, one of the considerations we have is, obviously, with any human rights issues that arise. Have you identified any human rights issues that might emerge as a result of this legislation? 

Well, I think I've explicitly included the consideration of human rights on the face of the Bill in section 8. This was included after a variety of informed responses to the consultations I ran requested specific reference to the United Nations conventions and the principles on the face of the Bill, and those relating to children, older persons and disability have therefore been included in section 8. For example, the Equality and Human Rights Commission said in its response, and I quote:

'The draft Bill makes welcome reference to "protecting and promoting rights." The Commission has called for international human rights conventions to be further incorporated into domestic law. Therefore, the Commission would welcome the face of the Bill and any following guidance making direct reference to human rights, such as the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities. The conventions provide clear principles to ensure people’s human rights are at the forefront of service delivery.'

Unquote. Therefore, the Bill seeks to fully reflect, I think, appropriate equality and human rights obligations and ensure that they are actually applied to the functions of relevant bodies under the Bill.

Thank you for that. I think that is very helpful. Did you want to—

I think Enrico would like to come in as well.

Yes. Thanks, Chair. Specific consideration was also given to article 8 in relation to section 6 of the Bill, and it was proper to do so in that the Bill at section 6—particularly section 6—it seeks to gather certain data, including one element constituting personal data. So, to that extent, we made a detailed consideration that is set out in the explanatory memorandum, not only in relation to competence and data protection—because, obviously, there's a reservation around personal data—but also in relation to article 8 rights.

I can elaborate, if the committee wishes. Otherwise, there is a very detailed consideration set out in the explanatory memorandum. We were content that no article 8 rights were infringed, that the provisions contained in section 6 were the least interference with the citizens' rights and proportionate to the aim pursued. And also, as the Member in charge has indicated, it was found that the Bill was in competence, and to be in competence, it has, by definition, to also be compliant with human rights requirements.

Okay, thank you very much. That's very helpful. If I go on to Suzy Davies—.

Do you mind, Chair, if I just deal with a question on data collection first, as we are on the subject there?

Please do. Absolutely.

Can I just ask you: if the relevant bodies, generally, have to provide anonymised data under section 6(3), why does section 6(6) only set out data-collection requirements for NHS bodies?

Yes, you're absolutely right. So, subsection (6)(6)(b) requires that NHS bodies capture the NHS number of persons with autism. This amounts to person as opposed to anonymised data, as you've just said.

Now, expert advice strongly indicated that it's necessary to be able to analyse autism data of individual patients to generate valid statistics, as well as ensure that those patients are receiving the best possible services. And, paragraph 503 of the explanatory memorandum sets out the rationale for the inclusion of each data category in subsection 6(6), including for the collection of individual NHS numbers. The requirement to provide anonymised data to Welsh Ministers is to ensure compliance with data protection and human rights obligations, as Enrico has just said, and also, Welsh Ministers will only require macro-type data for the purposes of delivering the strategy. Based on the Supreme Court's judgment in the Christian Institute case, I felt it appropriate to consider in detail the effect of the data-collecting provisions in section 6, and specifically, whether they interfere with the article 8 right to respect for private and family life, home and correspondence. And paragraphs 496 to 503 of the explanatory memorandum set out a detailed analysis of that.

Okay. So, collecting their actual individual NHS numbers, that doesn't breach anonymity or—?

No.

Okay, that's great, thank you very much. I just wanted to kick off with my main questions, if I might. We've already got a strategic action plan—there's always a question about the difference between what's a plan and what's a strategy—but, can you remind us why you think legislation is necessary and what it will achieve over and above having a plan or even a strategy for the matter?

Can I first of all say that, obviously, I do commend the work that the Welsh Government has been doing on this for the last 12 to 18 months? Its autism spectrum disorder strategic action plan and refreshed ASD strategic action plan have led to significant improvements, however, even after 10 years of Welsh Government autism strategies, problems do actually remain. A 2017 report by the London School of Economics, 'The Autism Dividend' said, and I quote this:

'The Welsh government rejected calls for an Autism Act, believing that other current developments will support autistic people effectively. However, without such legislation, government initiatives lack statutory force resulting in an inability to require local authorities to implement the strategy to the full.'

So, I think that report is pretty clear why we do require legislation. Now, there are significant issues with autism services here in Wales, in particular, problems of access to and long waiting times for diagnosis, access to health and social care services and the variability of services across Wales. Waiting times for diagnostic assessment are still unacceptably long and in some parts of Wales, they're far exceeding the Welsh Government's waiting time standard of half a year from referral to first diagnostic assessment. In one area, people have to wait two years; in my own area, for example, parents have had to wait up to seven years for their children to get a diagnosis, which is totally unacceptable, and this Bill would introduce a three-month waiting time.

The Bill also provides that needs assessments following diagnosis should be undertaken within 42 working days of a diagnosis or any post-diagnostic meeting, and services for people with autism are actually poor in some parts of Wales. The variability of services across Wales means that it's a matter of luck whether you live in an area where services are good. It is indeed a postcode lottery, unfortunately, and this Bill would address uneven provision by imposing a clear duty on health and social services across Wales to comply with the strategy to ensure consistency of provision—something the ASD strategic action plan has failed to achieve to date.

Now, there is a lack of information on services as well. Even after getting a diagnosis, people don't often know how to get the support they actually need, and this Bill, again, would require the autism strategy to improve information provision. Some people with autism are denied access to services because the services are designed for people with learning disabilities, or because they're not designed to help people with autism who have additional mental health needs. This Bill would actually put an end to that particular practice. And adults with autism often have difficulty with access to employment, for example, so better awareness and understanding of autism by employers would help generate more opportunities for people with autism. And again, this Bill requires Welsh Ministers to undertake an awareness-raising campaign, including amongst employers.

Transition from children's to adult services can be problematic for young people with autism. It can result in a loss or reduction in support services, and this Bill requires an autism strategy to ensure continuity of service during transition. There's also a need for better staff training, awareness raising, support for families and carers, and data collection on autism. This Bill addresses all these issues and, more importantly, it requires relevant bodies, that is, local authorities and local health boards, to comply with the autism strategy. This is, indeed, a stronger duty than under the current arrangements. It's also a stronger duty than under the Welsh Government's proposed code of practice on autism services, particularly on NHS bodies, for whom compliance with the code is not mandatory. A code, I'm sure you'd agree, can be revoked; an Act is arguably more enduring—a piece of legislation. There is clear evidence now that the overwhelming majority of people, I think, do actually support legislation on this. If you look at the two consultations I ran, it was quite clear that the overwhelming majority's responses to those two consultations supported legislation in this area.

Thank you. One of the things it's pleasing to see is that there are quite a lot of duties imposed on Welsh Ministers here, rather than they're just given powers, which is unusual in this place, if I can put it like that, and, I think, very, very welcome. Even so, we do have legislation—the Social Services and Well-being (Wales) Act 2014 is the one that I'm thinking of particularly—that gives various rights for individuals to be assessed. The significant difference here is that you've given timescales within which that is to be done. Was that deliberate, bearing in mind that you'd, perhaps, thought that or observed that rights given in other legislation weren't being observed, and something needed to be done to tighten up existing legislation? Is that fair?

That's a fair question, and, 'yes,' is the answer to that. Again, after consulting, after the two consultations, I think it was absolutely clear from the responses that we should be doing this in that way.

That's great. Obviously, we're a Parliament, we like to scrutinise things. I was quite curious to know why, when there's this obligation on Welsh Ministers to prepare and publish an autism strategy, it was merely to be laid before rather than approved by the Assembly. Was there a particular reason for that? I love the fact that you're making them do it, but can we see it as well?

I've made it absolutely clear during the course of the Bill going through the Assembly, if it gets to Stage 2, then I'm more than happy to look at these sorts of issues. But we didn't want to limit the flexibility, if I'm absolutely honest, by getting any revised strategy approved every time, so that's why we've, obviously, gone for this course of action. But if you feel, as a committee, after you have finished your deliberations on this particular piece of legislation, that I should be looking at that, then certainly I'm more than happy to look at that.

Well, you've been quite prescriptive already, which is, again, slightly unusual, and there's a power for Welsh Government to add to it if they want to. One of the things I'm thinking of is the Historic Environment (Wales) Bill, that's right. The Welsh Government, at that time, produced simultaneous draft guidance and draft bits and pieces that helped us, as the committee there, to understand what its intentions were. Maybe this is a question for Welsh Government, rather than you, but do you think that might be helpful—knowing that this is coming up, that they could offer some drafts, simultaneously with legislation, if they were minded to support it? It's not a bad thing for us all to know about in advance, is it?

Absolutely not, and I'd be happy to work with the Government if that was the case.

Fantastic. Guidance, I think it's—finally, Chair—

Sorry; Enrico would like just to come in on this particular issue, if that's okay, Chair.

Is that—?

Please go ahead.

Thanks. We did give a lot of thought to the issue of strategy versus regulations, and also laying of the strategy versus approval via the Assembly. Whilst we shouldn't be led by other places, the regime that's been adopted across the UK has been the use of a strategy, as opposed to regulations. In those other places as well, in the other legislation, there are by no means the level of scrutiny provided for in those Acts. They also lack detail, whereas, clearly, with the strategy in section 2 of the Bill, it enables the Assembly to scrutinise the framework and the areas within which this strategy must operate. We've also included a number of what I would argue would be safeguards, because one acknowledges that there have to be concerns around transparency and legal certainty. So, again, we have a number of safeguards around the scrutiny consultation review, independent reporting, et cetera. The strategy offers flexibility and maybe strikes the right balance. It may, depending on the committee's views, be appropriate, for example—a middle ground might be that the first strategy might be laid for approval by the Assembly and subsequent strategies thereafter are simply laid. As Paul has mentioned, there are a number of options and naturally we would take on board any recommendations of the committee.

It's a balancing act, isn't it? With something as complex as the strategy here, and changes and so on to it, you wouldn't want to be tied up into a formal approval system and so on. Okay. It's a balancing act. That's something, obviously, we'll give some thought to.

Yes, because the last thing anybody would want when you've got such a prescriptive Act is for actually the strategy that's then produced to be a bit weak. That would seem to undermine the whole purpose of the Act, then, which is a good thing.

On a similar question, actually, with the delivery of the strategy, there's no point having it if it's not going to be well delivered, and section 4 provides for guidance to Welsh Ministers, and we should all comply with it, really. That guidance—again, there are some ideas about what should go into it, but there are no means for us as a Parliament to scrutinise guidance or changes to guidance. Would it be worth considering how secondary legislation might be used for us to look at any significant changes to guidance?

If you look at the Bill, obviously the Bill does contain three powers to make subordinate legislation. The detail of these is set out in section 6 of the explanatory memorandum, but in summary, the purpose of the relevant power and its legislative procedures are section 6(6)(j): Welsh Ministers may

'make regulations, which prescribe additional categories of data to be captured by NHS bodies',

which we were just talking about earlier. 'The affirmative procedure is appropriate', in those circumstances,

'given that any additional categories of data prescribed may include personal data.'

Section 9(1), found under the definition of 'autism spectrum disorder': Welsh Ministers may make regulations

'that include, for the purposes of this Bill only, other neurodevelopmental disorders in addition to the WHO International Classification of Diseases definition of "autism spectrum disorder".'

Again, the affirmative procedure is appropriate given that these regulations will extend the scope of the disorders to which the Bill will apply. And, again, subsection 9(1), found under the definition of 'relevant body', the Welsh Ministers may make regulations

'which extend the definition of "relevant body" for the purposes of the Bill beyond the local authorities and NHS bodies already included'

in the definition. Again,

'The affirmative procedure is appropriate given that these regulations will extend the range of bodies that will be required to comply with the autism strategy and accompanying guidance.'

So, under the Bill, therefore, it's quite clear, I think, that the Assembly will have its say on subordinate legislation and there needs to be sufficient Assembly scrutiny, in my view, and that's why we've included the three powers to make subordinate legislation under the affirmative procedure.

Okay. Thank you very much. I'll leave it to others to ask theirs. Thanks, Paul.

Thank you. Mandy Jones.

How did you strike a balance between what's on the face of the Bill and what is left to the strategy?

I think we placed more detail on the face of the Bill in order to ensure that future Executives, future Welsh Governments, actually delivered on improving autism services. Of course, as I mentioned earlier, we did run two substantial consultations. We obviously considered the responses of those consultations as well, but I believe we've struck the right balance when it comes to this Bill. I think that it was important to put some of these things on the face of the Bill to make sure that any future Governments are held to account to deliver services that people with autism are entitled to across Wales.

I think your answers have been very, very comprehensive so far, which is really, really good, and I do like the Bill. So, why are all the regulation-making powers subject to the affirmative procedure? 

As I said earlier in response to Suzy Davies, I think there needs to be sufficient scrutiny by the Assembly, and that's why we've decided that they should be subject to the affirmative procedure, or the three powers to make subordinate legislation. 

Thank you. 

Okay. Looking at section 5, it requires compliance with the strategy and guidance rather than having regard to it, which is the terminology we tend to get. I just wonder if you'd perhaps outline the approach you've adopted on that and why. 

Yes. I think we've struck the right balance when it comes to this. As you quite rightly said, Chair, section 5 imposes a mandatory duty to comply with the strategy and guidance as opposed to a duty to have regard. I accept that the normal duty in relation to strategies, guidance and codes is to have regard, but I felt it appropriate, I think, to strengthen the Bill following consultation feedback which supported a strong duty on relevant bodies to comply with the autism strategy and guidance. And in coming to this view, a power of direction was considered also as an option, as set out in question 4 of the second consultation on this Bill, but this would have amounted to a purely reactive power, in my view, reliant on Welsh Ministers identifying local failings and addressing them through direction in a timely manner. I didn't feel that a duty to have regard, or even a power of direction, would be sufficient to address the ongoing lack of consistent autism provision in Wales especially.

Evaluation reports on the autistic spectrum disorder strategic action plan and the integrated autism service, for example, both commented on the uneven and variable services for people with autism across Wales. This view was reflected in response to the initial consultation on the Bill, with comments indicating that there remains significant regional variation in services. Further evidence of variability is provided by the interim report of the evaluation of the refreshed autistic spectrum disorder strategic action plan, which noted the challenges of establishing the new integrated autism service and the patchwork of existing services that differ from region to region, unfortunately. 

I think it's also relevant to note that in response to the Bill, the Welsh Government has chosen to issue a code rather than regulations to support its existing autism strategy. Now, the code, as I understand it, will be issued under section 145 of the Social Services and Well-being (Wales) Act 2014 in relation to local authorities, and sections 1 and 2 of the National Health Service (Wales) Act 2006 in relation to health bodies, and the Cabinet Secretary has stated that the code will be mandatory, notwithstanding the fact that it can't be made mandatory for health bodies under the 2006 Act. Clearly, therefore, the Welsh Government considers a mandatory code to be appropriate as opposed to regulations, but my view is that the provisions under the Bill are a far more effective means of improving autism services, not least because they'll be mandatory on all relevant bodies. Clear obligations on relevant bodies imposed by a strategy and accompanying guidance, underpinned by the details set out on the face of the Bill, particularly, I think, in section 2(1), provide Welsh citizens with clarity as to their rights in relation to autism services. And I think such clarity and transparency also ensures that the citizen can actually seek to enforce those rights via a judicial review. This is a well-understood means of enforcement, and one that I consider to be appropriate and sufficient in the context of this Bill.  

The drafting certainly puts compliance at the forefront. I'm just wondering what thought you'd given to the natural consequence of that, of course, which is ensuring compliance and enforcement. Do you have a view? Have you given consideration to how you would understand enforcement would operate, because there's nothing specific within the Bill in terms of how there's to be enforcement and any actions that might be taken specifically?  

But as I've just, I think, I think it's fair to say that, obviously, if bodies do not comply with this legislation, if it's passed, then people will have the right to challenge that in a court of law via judicial review. Enrico, would you like to come in on that?

Just to confirm what Paul has said about judicial review being an appropriate remedy: we don't see, necessarily, in other similar legislation, the application of individual enforcement rights for citizens around this sort of duty. Also, as the Member has mentioned, we did consider a power of direction—not an explicit enforcement right, per se, but a means of ensuring compliance. Also, another consideration of ours—

Could I just stop you on that point about the point of direction, because, Paul, you mentioned that earlier on, and, of course, we know that judicial review can be complicated? It can be difficult for a variety of reasons—there can be delay and cost and everything else. But a power of direction is a very specific power. Can you just clarify why you decided not to go for a power of direction on this as a means of enforcement?

It's inherent for Welsh Ministers, where a duty is mandatory, to direct that that duty is pursued or to seek means to ensure that it's properly delivered by the service in question. We did have—. As the Member has mentioned, we consulted on a power of direction and a concern that we had—but as I say, we're very happy to take on board what the committee's views are when you report—one of the concerns we had was that power of direction really does require a process, almost—that the Welsh Government is aware that there's a failing, or for the citizen to bring that to the attention of Welsh Government for Welsh Government to then resolve to take steps to address that issue. It might not always be the case that Welsh Government is aware of these failings or acts quickly. Our view was that a mandatory duty was more appropriate. It provides more certainty for the citizen, I would argue. I take on board what you say about judicial review. We were also mindful, if we applied other enforcement provisions within the legislation, whether that was proportionate in relation to the burden it would impose on Welsh Government and the court service as well. So, in the round, we thought this was an appropriate approach.

And I suppose there might also be other civil actions that might arise in common law from the failure to comply with the duty as well.

Absolutely. I mean, that's the point I'm making about transparency and certainty for the citizen—that it gives them clarity about what their rights are in respect of these services.

Thank you for that. If I could move on, perhaps, to section 9(1), and that permits Welsh Ministers to extend the range of relevant bodies beyond local authorities and NHS bodies. It's obviously contained within a section that deals with interpretations and so on. I'm just wondering what other potential prescriptions there might be. Have you given thought to that? Have you thought about the things that ought to have perhaps been identified and prescribed, or whether this is just to cover future developments, the future unknown, and next steps, potentially?

Yes, you're absolutely right. There is a section in here where, obviously, future bodies and the bodies that haven't yet been identified could be captured under this legislation, and there is a power for Welsh Ministers to actually make regulations under this section, which may extend the definition of a relevant body. I think that was considered necessary to ensure flexibility, because should Welsh Ministers need to extend the Bill's functions to further bodies as circumstances require, then I think it's only right and appropriate that this piece of legislation will allow them to do that. The other bodies that you could look at may not exist at the moment. However, what this will do is it will allow gaps in provision to be addressed, perhaps, in the future, due to future changes arising from restructuring, perhaps, reallocation of services, new initiatives et cetera, and it may therefore be necessary to capture the bodies that will be delivering autism services in the future. The provision in this section provides the necessary flexibility to achieve this, and thus ensure the Bill remains fit for purpose, and that's why we've included this section in the Bill.

Okay, thank you for that. Dai Lloyd.

I think this is absolutely crucial, as far as this piece of legislation is concerned, because I think it will oblige local health boards and local authorities to deliver services, but at the same time, they should be working together in a holistic way. I think this Bill, and this piece of legislation, will provide that holistic approach.

Sorry, I seem to be butting in a lot—

No, it's not butting in—please. It's—

It's informing the debate.

Your views are very valuable.

Section 2(1) of the Bill, as you know, sets out a lot of obligations in relation to the strategy. One of the key messages we've received, both from our expert advisors and from the consultation, was a lack of a clear pathway—and 'pathway' in inverted commas. But, essentially, as provision in section 2(1)(b) says, it's to

'make provision for the development of a pathway, that includes access through defined points of referral, to map the services that are available and required for persons with autism spectrum disorder'.

Now, by definition, that means you have a clear route-map by which someone can traverse the various stages of autism diagnosis and subsequent services. And inherent in that is the identification of agencies that are responsible for those services. And it follows, therefore, that there's clarity about who one can contact, with a view to addressing a particular issue, or maybe ensuring that they work collaboratively, and there are other provisions in section 2(1) that also require that sort of joined-up thinking.

Of course, the primary focus of this Bill is on the improvement of autism services in Wales. However, you're quite right, section 9(1) permits Welsh Ministers to prescribe other neurodevelopmental disorders by regulations, and this means that, if future Welsh Ministers believe the provisions of this Bill should be applied to people with other neurodevelopmental disorders, they would have the power to do so. Now, for example, advances in understanding autism and other neurodevelopmental disorders, and developments in clinical practice, could potentially make this appropriate, I think, in the future. Also, if the Bill is shown to make a significant improvement in autism services, Welsh Ministers may wish to extend the regime to deliver like improvements in the treatment and care of other neurodevelopmental disorders.

It should also be noted that consultation feedback strongly supported the use of the World Health Organization definition of autism, and the inclusion of a power to specify other neurodevelopmental disorders. In fact, 62 per cent of the responses I received to my second consultation wanted this to be included in the Bill. And the power to extend the definition can also be utilised as a safeguard, I think, against inadvertently diminishing relevant bodies' focus on addressing the needs of people with other neurodevelopmental disorders as well. However, I've made it quite clear that the Bill is first and foremost about the improvement of autism services in Wales, and this is its primary focus, but I do consider it appropriate to make provision for future developments that cannot be currently identified, and, for this reason, this safeguard has actually been included.

Suzy Davies, you wanted to come in on this.

Just very specifically, by including that safeguard, as you call it, do you think that effectively neutralises the argument that's been made in Plenary before now, that making this autism Bill about one neurological development is an issue for others, shall we say? Tourette’s has been raised as an another example; why don’t we have a Bill for that? Do you think that argument has been answered by including this? 

I’d like to think so, because it will allow other neurodevelopmental disorders to actually be included in this Bill. I know that argument has been made in the past. We’ve seen legislation on autism being passed in other parts of the United Kingdom, and, as far as I’m aware, other organisations or people with other conditions aren’t clamouring for legislation for other conditions. So, I don’t see that—. I think I see that as a bit of a red herring more than anything else, if I'm absolutely honest.

Okay, thank you. 

In your thinking, by 'neurodevelopmental', are you thinking about things like dyspraxia, attention deficit and—

That's right.

—and greater understanding of some of the learning problems that people have? And, of course, if that were to take place, if there were to be those extensions, then, presumably, Welsh Government would need to come forward then with formal amendments, there'd be consultation and engagement as part of that process, wouldn't there?

Yes, absolutely, and I think we've made it clear that any additional condition prescribed in regulations will be subject to the affirmative procedure.

Yes. Dai Lloyd.

Yes, we did consider the superaffirmative procedure, I think, which you're referring to. That, obviously, is a very special procedure, and we felt it would be excessive, I think, to introduce a superaffirmative procedure in these particular circumstances. But, again, if the committee feels, after its deliberations, that that is something that I should be looking at, then I'm more than happy to look at that at Stage 2.

Yes, definitely. I think that if we see an improvement in services being delivered to people with autism, I believe that we will see, obviously, the improvement in other services as well, and I think you're absolutely right on that.

Can I just follow through on that? Sorry, were you going to—

No, I'm done. 

Just in terms of the definition of neurodevelopmental, in terms of raising it as a technical point in terms of the drafting of the legislation, it obviously gives the power to Welsh Ministers to prescribe, but they only have the power to prescribe in respect of neurodevelopmental disorders. There isn't a specific description of—. I don't know, is it something that has a very specific medical description or whatever, because it seems to me that once you start going into other areas, although the model may be right, they, of course, become effectively new areas of policy, new areas of law? Neurodevelopmental, as I understand it, is a very specific area but isn't very well described.

Chair, autism spectrum disorder, under the World Health Organization international classification of diseases, is now recently No. 11. Welsh Government have been using No. 10, but there's been a recent change and that has resulted in some re-ordering of the way that the ICD is set out. But, within the current ICD 11, you have a top-line category of neurodevelopmental disorders and, beneath that, one of those disorders is autism spectrum disorder. So, there is already—. I can read you the definition of neurodevelopmental disorder—

No, no, there's no need; it's just where it fits within that. 

There is a recognised definition within the WHO catalogue there, or classification. Again, it may be appropriate to include that simple definition. We didn't because, equally, we didn't want to limit any changes that may occur around future classification of neurodevelopmental disorders, but, that said, again, if the committee feels strongly, and subject to any further expert advice, there's no reason why, at Stage 2, we can't introduce a definition of neurodevelopmental disorder. 

Okay, thank you for that. I think we're on to Mandy Jones. No, sorry, it's Suzy. I beg your pardon. Suzy Davies. 

No, I've already asked them at the beginning. 

You've finished with the questions. Okay. Did anyone have any further points to raise? 

No. 

That really brings us I think to the end of the scrutiny process, as far as our considerations are concerned. I don't know if there are any final points that you wanted to make on this or are you satisfied?

No, I'm satisfied and happy. Thank you very much.

Okay. You will, of course, get a transcript through to check for factual accuracy. Thank you very much for the succinct and comprehensive answers and for attending committee today. Thank you very much. 

Thank you, Chair. Thank you very much. 

Can we move now into private session?

Yes. 

Is that moved—17.42, I think? Okay, we now move into private session, then.