Legislation, Justice and Constitution Committee

That takes us on to item 2, the British Sign Language (Wales) Bill evidence session with the Cabinet Secretary for Social Justice, Trefnydd and Chief Whip. Can I welcome Jane Hutt, the Cabinet Secretary for Social Justice, Trefnydd and Chief Whip. Do you want to introduce your colleagues or do they want to introduce themselves?

Perhaps they could introduce themselves.

I'm Jane Peffers and I'm the head of BSL policy.

I'm Amira Evans and I am head of equalities.

I'm Ben Henriques. I'm a senior lawyer responsible for equalities for the Welsh Government.

Diolch yn fawr. That takes us on now to the first question and it's one from me. Do you consider that all provisions of the Bill fall within the legislative competence of the Senedd?

Diolch yn fawr, Cadeirydd. Perhaps I could just start in response to that question to say, of course, we're not responsible, in terms of the explanatory memorandum, for the BSL (Wales) Bill, which includes the declaration of legislative competence. But I'm really delighted to say—and you've been working with him—that responsibility for the EM lies with Mark Isherwood, the Member of the Senedd, and his Senedd team who drafted it. But we're satisfied as a Government that the provisions of the BSL (Wales) Bill are within the legislative competence of the Senedd and, of course, it's also the Llywydd's assessment of the Bill that it's within competence.

Thank you very much. Do you consider that any human rights issues arise in relation to the Bill?

Yes, it's important that we look at that issue and, of course, again, I've mentioned the explanatory memorandum, but the responsibility for drafting the regulatory impact assessment remains with Mark Isherwood. So, I'm sure you'll be asking Mark about how he developed his impact assessment, but we recognise that he's produced an equality impact assessment that states that the aim of the Bill to facilitate and promote BSL use aligns, for us as a Welsh Government, with the public sector equality duty, PSED, and our national equality objective. So, we do support the Member in that he has considered equality and human rights as part of the Bill preparations, and that the provisions of the Bill are compatible with human rights legislation.

From what you've said up until now, I take it you've had substantial discussion with the Member in charge relating to this Bill.

Substantial discussions with the Member. This is, obviously, the Member's Bill, but I sought to engage with the Member at an early stage when I re-assumed this role as social justice Cabinet Secretary. So we've worked through the objectives and we've worked with Mark, with my officials, with Senedd officials and, indeed, his support staff. Now, I think what was important was that we worked through it so that the legislative goals could make it possible for a Welsh Government to support the Bill. So, they was very constructive, cross-party of course, political negotiations, to support Mark and help move this forward so that we could all agree. The Welsh Government drafted the Bill and explanatory notes that were handed back to Mark to introduce.

The key point about the Bill, which is in line with our objectives, is that it seeks to ensure that deaf BSL signers in Wales can communicate and be communicated with in their own language. I'm pleased to have worked with Mark on this and it's great that you've got a BSL signer in this committee session. We hope we'll see this reflected throughout our forthcoming business.

Diolch yn fawr. Tom.

Thank you very much, Chair. Do you agree that the aims of the Bill can only be achieved through new primary legislation, or could they be achieved through a change of policy?

Thank you for that important question, because this is really where we're working together so closely, but particularly with the deaf BSL community, which we have sought to do as a Welsh Government. It's important that we've had work that we've been doing with our BSL stakeholder group, and understanding from them—when Mark introduced his Bill, and got leave to introduce the Bill—how important it is that this should be put into statute. So, you see, from Mark's explanatory memorandum, that there's a range of challenges, which we recognise for the deaf BSL community in Wales, and the Member's RIA does note that the provisions will build on that work of the BSL stakeholder group, which is under way. You may be aware—and I hope you'll see from the Welsh Government website—that we published the recommendations from our BSL stakeholder group on 30 September, signed off by that group.

What we need to do is design and develop policy and legislation that is shaped by lived experience, delivering the greatest positive impact to deaf BSL signers. It's about leadership, and I think that's what's come through from our engagement with the BSL stakeholder group. They've stressed the importance of deaf leadership and ensuring that lived experience influences policy development. We also, obviously, need to see what the priorities of the deaf BSL signing community are, and to do this—and this is where we've worked together so closely, and it's there in the Bill—there will be a public appointed BSL adviser and assisting panel, to enable deaf leadership and strength in collaboration and engagement between the Welsh Government and the deaf BSL signing community. Those are vital to the Bill, and securing those roles is part of the primary legislation, and I think that will ensure that the aims of the Bill are the right ones in terms of delivering on those actions. So, the BSL stakeholder group, as I said, published on 30 September. They've made the recommendations relating to primary legislation, including that establishment of a BSL adviser, BSL advisory panel and, importantly, a national BSL strategy. This is alignment now that has come together through this close working.

But also crucially important—your question is can this only be achieved through legislation—the BSL Bill would legislate for cross-Government policy actions to continue into future Governments, and I think this is where we need to look to the future to safeguard this, and that, through legislation, ensures continued commitment to promoting BSL. This is part of Wales's diverse linguistic landscape and improves provision for deaf BSL signers. So, in legislation, this would safeguard the continued use of policy levers to bring about that positive long-term change, and also ensure value for money, which we have to look at as a Government, and you, obviously, as a Senedd, and we've been to the Finance Committee in terms of the purpose and the impact of this proposed legislation.

Thank you. Do you consider that there is any overlap between the provisions of this Bill and other legislation, such as the Equality Act 2010?

Thank you for that question as well, because this takes us to looking at, as you've said, the Equality Act, but other legislation too. I'll perhaps mention the Well-being of Future Generations (Wales) Act 2015 in this context as well. So, the RIA does include, as I've mentioned already, an equality impact assessment that the Member undertook, which Mark undertook, and it states that the implementation of the Bill will continue to deliver duties laid down in the Equality Act 2010, with the overall ambition of creating an equal Wales.

BSL signers are protected under the Act as part of the protected characteristic of disability, and public authorities are already subject to the public sector equality duty, which I've also mentioned. That requires those public authorities to have due regard to the need to eliminate discrimination and advance equality. Also, the Equality Act contains duties to make reasonable adjustments for people with protected characteristics, and this might mean making BSL available to someone who has a hearing impairment, for example. The provisions in the BSL Bill don't affect that framework of protections. It's important that the provisions of the Bill will promote and facilitate BSL within services provided by the listed public bodies, improving the outcomes for deaf BSL signers in Wales. So, it actually helps fulfil the expectations of the public sector equality duties.

I think it's also important that we look at the Well-being of Future Generations (Wales) Act 2015 in terms of other legislation, because the Member's RIA sets out the fact that the Bill is consistent with the seven well-being goals and five ways of working. They relate to the long-term needs of deaf BSL signers of all ages, and creating a more equal Wales, of course, in terms of those objectives. So, the policy provisions outlined within the Bill help the Welsh Government and listed public bodies to contribute to the well-being goals, and not just a more equal Wales but a Wales of cohesive communities, and reflects our commitment to fostering a more equitable Wales, ensuring equal access to services and proactively addressing inequalities.

Diolch. Adam.

Diolch yn fawr. Bore da, Ysgrifennydd y Cabinet. Mae'r Bil yn ei wneud e'n ofynnol i Weinidogion Cymru hybu a hwyluso'r defnydd o BSL. Pa gamau ydych chi'n rhagweld ar hyn o bryd byddai'n deillio o'r ddyletswydd honno gan Lywodraeth Cymru?

Diolch yn fawr, Adam. What's important about Mark's Bill is that it would put in place the planning and reporting framework for promoting and facilitating BSL through the development of a national BSL strategy and BSL plans, and we agree that this is the right approach in terms of the responsibilities of Welsh Ministers.

Of course, it is for a future incoming Government to develop the detail of the national strategy and BSL guidance, and that will be done as a result of co-production, with the emphasis on the Bill, and of course Mark has always been very clear about this, hasn't he, as we have as a Welsh Government, that this is about leadership and co-production. It's about stakeholder engagement to ensure that implementation is shaped by that lived experience of deaf BSL signers.

I've already mentioned the fact that we've got a BSL stakeholder task and finish group, and the recommendations we published on 30 September, so we would expect an incoming Government to be guided by these recommendations when developing the national BSL strategy. It will describe how Welsh Ministers intend to promote and facilitate BSL in Wales.

I do think this goes back to the point for colleagues about embedding this in legislation, because we can have strategies, and we know we have strategies, but to actually back it in statute for the future will safeguard that objective and intention, and for Welsh Ministers in the future to comply with the duty.

Ydych chi'n deall y feirniadaeth o rai nad oes yna ddigon o ddyletswyddau uniongyrchol yn cael eu creu drwy'r Bil? Er enghraifft, os ydyn ni'n ei gymharu fe gyda Mesur y Gymraeg (Cymru) 2011, oedd yn rhoi dyletswyddau statudol yn uniongyrchol ar gyrff cyhoeddus, sydd wedyn yn cael eu goruchwylio a'u gweithredu drwy Gomisiynydd y Gymraeg, onid oes yna ddadl y dylai bod mwy o'r dyletswyddau hynny ar wyneb y Bil, yn hytrach na'u bod yn cael eu gosod mas mewn canllawiau maes o law?

Diolch yn fawr, Adam. We do believe that the duties on the face of the Bill are reasonable and that they balance accountability and flexibility for listed public bodies, but of course the Bill has a duty to prescribe by regulations, and it's important that there's information for a listed public body that they must include in preparing and publishing their BSL plans, and those public bodies listed will be responsible for determining the contents of their own BSL plans. Many will already have existing plans and be guided by the BSL guidance, which a future incoming Government will lead, obviously, in terms of developing that national strategy.

But we do think that the bodies are best placed to understand their specific needs. I think that it's important that we also have the opportunity to see that we don't want to place more administrative burdens on public authorities. So, the Bill has been designed to have that flexibility. I don't know whether, perhaps, our senior lawyer, Ben, wants to come in to reflect on that point, just in terms of the balance and in terms of what's on the face of the Bill and what's coming through regulation, in the guidance, because the Member, obviously, Adam Price, has referred to the Welsh language Measure specifications.

The duty is fairly broad. The duty to promote and facilitate BSL will be a binding duty on the Welsh Ministers, so that's a significant duty. In terms of what's in the Bill as opposed to in regulations, the only regulation-making powers are the power to add or remove bodies as listed bodies—plainly, it would be very difficult to deal with that on the face of the Bill because bodies are created, some bodies are dissolved, and so on—and the other regulatory power is a power to require certain details to be put in the plans under section 4. Again, that's archetypally a matter of detail, which may need to change with the times. And so it's for those reasons that those two particular things are in regulations, but the overall duties are wide-ranging and will be permanent, and those are on the face of the Bill.

Ond dydych chi ddim yn credu, er enghraifft, y byddai wedi bod yn bosib creu dyletswydd galetach o ran canlyniadau. Hynny yw, mae yna nod, mae yna bwrpas i'r Bil yma, onid oes, ac eto oni fyddai'n bosib i rai ddweud nad yw e'n gwbl glir sut y gallwch chi sicrhau yn gyfreithiol cyrraedd y nodau o ran defnydd a hygyrchedd BSL?

I think Ben—and I don't know whether Amira wants to come in here—really reflected on the importance of the flexibility that we need for listed public bodies in relation to that balance between what's reasonable in terms of accountability and the flexibility that those public bodies need. They are best placed to understand the specific needs of the deaf BSL community.

I would say at this point that it is really important that the message goes out that we hope, and we would expect, and as a result of this Bill, that public bodies themselves will ensure that their work is led by deaf BSL signers. I think it's important that that's on the record. For many of them, it's going to be public bodies who haven't perhaps done much work in this area of policy.

Also, I think it's really important that we are going to—we haven't talked about this yet—have a BSL adviser, an independent adviser, and an assisting panel, and a future Government could use the regulations, for example, to amend the list of public bodies as well, which may be a question that will emerge.

But I think probably, unless you've got anything to add, Amira, that would be our case for—. And, I mean, Mark, obviously—it's his Bill. I'm sure you'll be discussing these issues with him. Did you want to say anything else, Amira?

Just that the BSL plans, once they are finalised, must be sent to the Welsh Ministers. The Welsh Ministers can request that these are reviewed if they feel that that needs to happen. The Bill also requires listed public bodies to report 12 months after their plans are produced. That gives them an opportunity to talk about their progress, and that is further than other UK legislation that is similar, such as the Scottish Government Act.

And just finally, in addition to the regulation-making powers that the Cabinet Secretary has just outlined, Welsh Ministers can request further information when they are producing their own report on progress, which can ask for progress updates from listed public bodies.

Mae'r Bil yn awgrymu gwneud yn ofynnol i Weinidogion Cymru gyhoeddi'r strategaeth genedlaethol o fewn 18 mis i gael Cydsyniad Brenhinol. Ydych chi'n meddwl bod hyn yn rhesymol? Ydy e'n ddigon o amser ar gyfer paratoi strategaeth? Dwi ddim yn siŵr; oedd yr Alban wedi cymryd dwy flynedd, efallai, ar gyfer eu strategaeth nhw? Ydy e'n rhy hir, o bosib? Oherwydd 18 mis i gael y strategaeth, a wedyn bydd hi'n cymryd amser i gael y cynlluniau mewn lle ar gyfer pob corff cyhoeddus. Felly ble ydych chi ar y cwestiwn yma o faint sy'n resymol i osod ar gyfer target o ran y strategaeth genedlaethol gyntaf?

Thank you for that question and those very relevant points about the time that we are saying—. Well, it's the Member, actually; I mean, you might want to speak to the Member about this as well on the reporting timescales that are set out in the Bill. I think as Mark has already made it clear in his RIA, we already have work under way. We have the work that's been undertaken by the BSL stakeholder task and finish group.

I know that it has been fed back already that our Bill is doing more than other Bills and pieces of legislation in the UK. The developmental work with our BSL stakeholder task and finish group has been very warmly welcomed, and is co-chaired, obviously, with our deaf BSL stakeholder signing community.

The fact is we've done lot of the work already with the BSL stakeholder task and finish group. This is to develop a BSL route-map. The recommendations I've already mentioned are paving the way for this in terms of then seeing that 18 months is regarded as an appropriate time.

I think one of the things that's come from the BSL stakeholder group, and there's been consultation, obviously, with the BSL community, again goes back to the importance of deaf leadership and gaining lived experience in policy development. I think they feel—. The feedback would say from the stakeholder group that this is an appropriate time, but it is a question for Mark as well. I think it's important as well that we look at this in relation to the BSL adviser, because we are also saying—the Bill, obviously, is clear on this—that we need to have a BSL adviser in place within 18 months of the date the Act is brought into force, and I think we would all recognise that that was critically important. So, I think the 18 months is—. You'll be asking the Member, I'm sure, but I think there's good reason. We're on the way, we've got the stakeholder group, we've got the recommendations, and they want to get on with it.

We see Mark next week.

Oh, right.

Gawn ni symud ymlaen, te, i adran 3 o'r Bil, sydd yn ei wneud e'n ofynnol i Weinidogion Cymru gynhyrchu canllawiau i'r cyrff cyhoeddus sydd yn cael eu rhestru o dan fframwaith y Bil? Dyw'r Bil fel mae'n cael ei gyflwyno ar hyn o bryd ddim yn nodi beth mae'r canllawiau yma yn gorfod cyfro. Allwch chi ddweud—? Hynny yw, roeddech chi'n sôn, Ysgrifennydd Cabinet, fod yna lot o waith wedi cael ei wneud, a lot o drafodaethau wedi digwydd gyda rhanddeiliaid. Ydych chi'n gallu dweud wrthym ni nawr beth ŷch chi'n disgwyl, credu, wedi cytuno, y dylai'r canllawiau yma'n ei gynnwys, neu'n gorfod cynnwys? Ac ydych chi'n meddwl—? Os ydych chi wedi dod i farn ynglŷn â'r hyn ddylai'r canllawiau ei gynnwys, oni ddylai hwn unwaith eto fod ar wyneb y Bil, neu o leiaf y craidd, lle mae yna gonsensws?

Diolch yn fawr. We've reflected on this in terms of the face of the Bill, the balance and accountability in relation to guidance, and, obviously, you'll be asking Mark about this as well, about his thoughts about what the guidance should contain. I think we have got to look at this in terms of an incoming Government as well, and the timetables that we're in in terms of the future Senedd. So, a future Senedd will be responsible for looking at how—. The development, reporting and reviewing of BSL plans by listed public bodies will be dependent on the BSL guidance produced by that incoming Government, and the incoming Government will have to look at costs, won't they? We've already agreed what the budget will be for next—. Well, in the RIA, we've agreed or recognised that there's going to be money in there—we talked about this at the Finance Committee—for next year, but the following year, 2027-28—.

I think it's important that the listed public bodies will be guided by the BSL guidance produced by the incoming Government. It's also—. I was just thinking back to those recommendations that came out on 30 September; you've only got to look at some of the BSL stakeholder group recommendations that are going to be relevant in terms of guidance: mapping BSL provision across public services, increasing BSL provision, educational workforce, developing early years BSL provision, improving mental health services, increasing the BSL interpreting and translation workforce. It's worth reflecting on what those recommendations are and how they will guide us in terms of the future incoming Government. I hope that will, again, indicate the way forward, but Mark will, I'm sure, have thoughts on this.

Rŷch chi wedi cyfeirio at rôl bwysig y Senedd, yn arbennig yng nghyd-destun Bil sydd yn dirprwyo lot o'r manylion i ganllawiau a rheoliadau. Yng nghyd-destun y canllawiau hyn, ydych chi'n credu y dylai fod rôl gan y Senedd, yn ffurfiol, i gymeradwyo'r canllawiau pan fydd y Llywodraeth wedi'u pennu nhw?

I think this is back to what would be appropriate for the Senedd and the Government. I don't know, Ben, if you want to respond to that in terms of the legal position. But I think this is something where leadership from the deaf signing community, BSL community, will be crucially important. But is there any reflection in terms of the Senedd's role?

I think it's worth noting that, under section 2, one of the things that the strategy has to contain—the strategy published by the Welsh Ministers—is how the Welsh Ministers will encourage listed public bodies to promote and facilitate BSL. And there's a specific reference to the guidance under section 3. So, the strategy will, in effect, have to contain details about how the guidance and other levers of the Welsh Ministers will be used, and that strategy, of course, will be laid before the Senedd.

Thank you.

Yes. But my question, really, related to the guidelines under section 3. So, am I right in thinking that, as currently drafted, then, there would be no affirmative procedure, for example, in relation to those—they're guidance, they're not regulations, but it is possible, of course, to craft on the face of primary legislation a Senedd role in scrutiny? As currently drafted, there is no formal Senedd role in relation to those guidelines. Is the Government comfortable with that position?

Well, am I right—obviously, Ben, you can correct me if I'm wrong—that regulations under section 8(2) would have significant implications in that this power is subject to Senedd approval procedure?

Yes, that's right. The regulations under 8(2) are, but the guidance under section 3 is not subject to any Senedd procedure. If it was, generally speaking, in terms of what's been done before in legislation, whilst you're absolutely right, of course, that it's possible for it to be subject to some kind of procedure, it probably wouldn't be an affirmative or negative procedure in the way that, say, statutory instruments are subject to; it would be something slightly different. But, at the moment, the guidance under section 3 isn't subject to a particular Senedd scrutiny procedure—that's right.

Okay, thank you.

Hannah.

Diolch, Cadeirydd. Bore da, Cabinet Secretary. I think, in some previous answers to Adam Price, you talked about some of the requirements in this legislation, particularly on BSL plans, go further than legislation elsewhere, but some stakeholders have suggested that requiring listed public bodies to provide explanations in their plans where they've decided not to follow guidance issued by the Welsh Ministers is a loophole. Does the Welsh Government have a view on that?

That's a really important question as well. Obviously, in considering the Bill with Mark Isherwood and with our legal advisers and his legal advisers together, we have considered that it's proportionate to allow a listed public body to explain why it doesn't intend to follow guidance issued by Welsh Ministers when preparing and publishing their BSL plans. Generally, of course, public bodies must follow statutory guidance unless there are very clear reasons not to. So, this requirement would continue to apply to listed public bodies and also future Governments—again, the incoming Government will put in the BSL guidance. It's not possible to state what particular circumstances might arise that would make it unreasonable for a particular listed public body to follow the guidance, but we—. And this, again, has been through collaboration with the Member. I think requiring a listed public body to explain why they don't intend to follow some guidance would be a powerful incentive to ensure that they do follow that guidance, except in very exceptional circumstances. We don't know what they could be. But where's there a legitimate reason for not following a specific element of that guidance, I think comment to explain deviation—. I don't know whether this exists in much legislation, actually, in terms of delivery of a new statutory duty. But, actually, asking them to explain any deviations does increase the level of accountability. They've got to justify their decisions, they've got to be scrutinised by stakeholders, and we know that they will be scrutinised by the BSL adviser, I'm sure, Welsh Ministers, the assisting panel, and I'm sure the Senedd would get to know about it. So, it's actually a mechanism to help ensure that departures from guidance aren't taken lightly and are subject to public and professional oversight.

To put it in more crude terms, it's almost like 'name and shame', isn't it, that you have to be publicly accountable.

Absolutely.

Can I ask what other information is intended to be covered by the regulation-making power in section 4(1)(c)? And could some of that be placed on the face of the Bill?

So, in order to ensure that listed public bodies' BSL plans remain as fully relevant and effective as possible, we do consider it's wise for Welsh Ministers to be given the flexibility to prescribe that the plans should contain other information. But we don't consider it necessary to make that power contingent on the Welsh Ministers consulting with the BSL adviser first. I think this is something, again—and Ben, whether you want to come in on this point—. But it's to ensure that we have that, that Welsh Ministers do have that flexibility, isn't it, to prescribe when we think other information is required.

Yes. Really only to build on what the Cabinet Secretary has said, if it's on the face of the Bill, that obviously makes it a requirement, but that does inevitably limit future flexibility. And in a world and in a sector that may well change over time—other legislation may change over time, other matters affecting the BSL community may change over time—it was thought, really, that it was necessary to have flexibility in this particular regard.

Thank you for that. Cabinet Secretary, can I just go back to what you just said around that Welsh Ministers shouldn't be under a duty to consult the BSL adviser before making regulations under that section? What is the rationale behind that? Is it similar to what Ben just said?

There is a requirement to consult in relation to regulations under section 8(2) and 8(3), and that's adding bodies to the list of public bodies, but not in relation to—. There's no requirement to consult when making regulations under 4(1)(c). The key difference there is that regulations under section 8 amend primary legislation. So, they are a Henry VIII power, as they're traditionally known. And for that reason, consultation was considered particularly appropriate and necessary. Whereas there's no power under section 4(1)(c) to amend primary legislation. So, that's the distinction.

Thank you. Section 5, about the BSL adviser, refers to the panel, which I think has been referred to previously this morning, and for that panel to be appointed by Welsh Ministers. Are you able to share with the committee what are the functions of the panel? And are you satisfied that there's enough detail on the face of the Bill about its role?

Thank you. And again, this is something I'm sure you'll want to seek Mark Isherwood's views on, the function of the panel. We believe there's sufficient detail on the face of the Bill. And I think, again, it goes back to understanding the lived experiences of the deaf community, in terms of shaping our cross-Government policies. And the publicly appointed BSL adviser and the assisting panel will be very strong in terms of enabling deaf leadership to collaborate, engage with Welsh Government and the deaf BSL signing community. So, we feel that this is something where—. Again, look at the BSL stakeholder recommendations. And also they're going to be reconvened. I think this is the work that Jane's taking forward. They're very, very much wanting to ensure that they influence the way forward in terms of the panel, its functions, and I think this is something where we need to be open to that.

Thank you. How many panel members would you expect to be appointed?

Back to the Member, I'm sure, having a view on the size of the panel. He's said in his RIA, as you know, that it would be for the Welsh Government and the BSL adviser to determine that. An estimate is provided—that's only an estimate, of course—of an advisory panel of eight members.

Diolch yn fawr. Tom, back to you.

How would you anticipate Welsh Ministers using the proposed power in section 8 to amend the list of public bodies subject to the duties proposed in the Bill?

As it's reflected, section 8(2) does enable Welsh Ministers to add a devolved Welsh authority, and also to remove a listed public body and to amend the description of a listed public body. This is reflecting Wales's distinct legal system and devolved powers. It's important that the focus of this Bill is on producing well-developed, effective plans and ensuring that the signing community takes a leading role in developing the plans. So, focusing on the existing listed public bodies will allow, we think, for more meaningful encouragement, engagement and leadership from the deaf BSL signing communities.

It's about how we move forward to encourage all listed public bodies to build on models of deaf leadership and ensure that their work is led by deaf signers. Doing this properly will take time and an understanding of the capacity in the deaf community. We would expect, over time—. Future Governments would expect advice from the BSL adviser and assisting panel, should a future Government want to use the regulations to amend the list appropriately. But, of course, that power is there.

Thank you. And regarding the drafting approach taken in section 8(1)(c) of the Bill, what is your view of the Welsh Ambulance Services University NHS Trust being specified in full, but the other NHS trusts being listed only as Public Health Wales and Velindre?

Thank you for that question. The wording actually is identical to the wording in the Well-being of Future Generations (Wales) Act 2015, and it's clear which bodies are being referred to. So, with Mark obviously engaging, fully leading on this and working with us in collaboration, we didn't feel there was a need to deviate, because it's laid down in the well-being of future generations legislation in that way.

Thank you. Coming back to me, you've seen the Bill, you've talked to Mark Isherwood about the Bill. At this stage, do you see any Government amendments that are necessary to bring in when the Bill comes forward?

No. We've worked with him. We're really pleased to give Welsh Government support. I think what's great about this Bill is that it seems, from statements made, to have cross-Senedd support.

Yes, substantial cross-Senedd support.

And we've got to hear evidence, obviously, and that's what you're doing.

Can I thank you and your colleagues for coming along and giving evidence to us today? You know that you will get sent a copy of the transcript for factual accuracy. So, again, just to say thank you very much for coming along. It's been very helpful for our deliberations, and I'm sure we'll be discussing this with other people in the future, including Mark Isherwood next week. Thank you very much.

Diolch yn fawr.

Can I, in accordance with Standing Order 17.42(vi) and (ix), invite the committee to resolve to exclude the public from items 4, 11 and 12? Do Members agree? Yes. That's agreed.

Good afternoon and welcome to this session of the Legislation, Justice and Constitution Committee. First of all, can I welcome Mark Hand, who is the director of Wales, Northern Ireland and Planning Aid England with the Royal Town Planning Institute Cymru, and Rhian Brimble, policy officer for Wales, Royal Town Planning Institute Cymru? I hope I've got that right.

Yes, thank you.

Are you okay to move straight into questions? In presenting the Bill to the Senedd, the Counsel General said the Planning (Wales) Bill

'provides the most comprehensive and accessible statement of the legislation governing town and country planning anywhere in the UK.'

Do you share that view?

I would, Chair. I think this Bill would put us in a really strong position, and unique to the rest of the UK, in having what's quite a myriad of disparate bits of legislation over time put into one place and codified in a way that can be updated quite smoothly in the future. So, yes.

Thanks. That's what we wanted to hear. What do you believe is to be gained by consolidating planning law in Wales now?

I think, Chair, it relates to my last answer. It would be a huge simplification for practitioners at the moment, whether our members are in the private sector or the public sector. We're delving through various changes over many decades in the legislation, and it's quite hard to follow through those changes and understand which bits relate and which bits don't. As devolution has strengthened, those differences between England and Wales have increased and it's made it even harder. So, very much around simplification, it pulls together all that confusing and disparate legislation into one place.

Yes, I think it's very helpful. I know more about local government finance than most other things, and the Chartered Institute of Public Finance and Accountancy's book now has a whole series of chapters that are just on Wales, where it differs from England. So, I assume exactly the same thing is here.

Yes. Yes, that's right.

Do you consider that your members have had sufficient opportunity to share their views on the consolidation exercise to date, and what involvement have you had?

Thank you. Yes, we've had significant opportunity to get involved over the years. It has been a fairly long process. But during that time, Charles Mynors has held various events for both public and private sector members, and spoken to different groups to explain the work and present to them what's proposed. As an institute, we responded to the 2017 consultation and we've worked with our members, both public and private sector, in looking at the Bill now, primarily via a policy and research forum that we hold.

Thanks. For the people watching, can you tell us who Charles Mynors is?

Yes. He is, I believe, largely the author of the Bill.

Thank you. Tom Giffard.

Thank you. How do you believe the Bill will affect the work of your members in Wales? Do you foresee any unintended consequences of the consolidation?

Thank you. I think the impact will be primarily positive in terms of that simplification. It will open up understanding of planning legislation to the wider public, I think, which will be beneficial in terms of transparency and trust in the planning system. But in terms of people wishing to undertake development, often they'll employ an agent or they'll certainly engage with a local planning authority—or planning authority now, I should say. And it will just simplify that process. It will reduce the amount of time their advisers need to spend working through the legislation and potentially reduce the amount of legal advisers they need to engage in the process. So, I think it's positive on that front.

I think the only unintended consequences will be relatively minor. But we've spent decades as practitioners understanding things like section 106 agreements, section 78 variations. All of those numbers, all of those legal clauses, will change, but we'll get used to it, and there's a table of destinations provided in the Bill, which is extremely helpful. So, we'd ask that that remains and that it gets updated as the codification process rolls on over the years, as needed.

I think the other unintended consequence, or maybe not unintended, but the other consequence will be by codifying some aspects of existing case law, there's bound to be further interpretation over the years by the courts. That's just one of those things that I think we'll all just have to take in our strides. But I wouldn't say that either of those would be a reason not to proceed, in my opinion.

Thank you.

Do you believe the Bill will implement the Law Commission's recommendations from the 'Planning Law in Wales' report appropriately?

I'm on the edge of my understanding of some of the legal technicalities here. It's a very long and technical process, but there are certainly no issues to my knowledge and no concerns raised by our members in that regard, but I think probably others are best placed to answer in more detail.

Thanks. Are there any particular improvements that you'd wish to see made to the Bill to improve or enhance the consolidation of planning law?

I think, primarily, our ask would be around ongoing communication to support practitioners with shared learning, and that might be something that RTPI Cymru could support with and help facilitate.

I think in terms of the legislation itself, the one change that I would highlight for your attention and thinking about relates to what we refer to at the moment from the Planning (Wales) Act 2015 as the purpose of planning. We're very fortunate in Wales to have a statutory purpose of planning set out in the legislation. That's replicated at the moment in both sections 11(2) and 51(2), but only insofar as that relates to producing a development plan or development management decisions. I think, personally, there may be good reason why it isn't, but I think, personally, it would be better at the top of the legislation, overarching all of the functions in the entire Bill, to set out that statutory purpose of the planning system.

Adam, yn Gymraeg?

Yn Gymraeg, os gwelwch yn dda. Prynhawn da.

It gives the witnesses time to adjust.

Wrth gwrs. Prynhawn da i chi. Jest dau gwestiwn gen i yn unig, yn yr adran yma beth bynnag. Mae yna Reolau Sefydlog gennym ni fel Senedd yn ymwneud â Biliau cydgrynhoi, a'r un perthnasol ydy Rheol Sefydlog 26C. Mae'n rhaid i mi gyfaddef roedd yn rhaid i mi atgoffa fy hun o'r hyn mae'r Rheol Sefydlog yn ei ddweud. Ond, yn fras, mae e'n gosod mas diffiniad o beth yw Bil cydgrynhoi, ac mae'n rhaid i'r Llywydd ddyfarnu ei fod e'n unol â'r paramedrau hynny, ac mae'r Rheolau Sefydlog yn gosod mas beth yw natur y Bil o dan sylw. Yn fras, mae'n ailrifo ac yn ailosod darpariaethau mewn un lle, ac wedyn mae e'n mynegi darpariaethau mewn ffordd sydd ddim yn newid yr effaith gyfreithiol, ond mae e efallai yn gwneud yr ystyr yn fwy hygyrch, yn y ddwy iaith, ar gyfer heddiw.

Felly, gyda hynny o ragarweiniad, a ydych chi'n cytuno bod y Bil yma yn unol â'r egwyddorion hynny? Hynny yw, dyw e ddim wedi smyglo mewn—gair anhechnegol—newidiadau mewn cyfraith; mae e ond yn crynhoi'r gyfraith yn y modd dwi wedi esbonio.

Diolch. Yes, I do agree. [Laughter.]

Ateb cryno iawn i gwestiwn pwysig ond gor-hir. Mae'r cwestiwn nesaf yn ymwneud â rhywbeth penodol iawn sydd wedi codi yn ystod y dystiolaeth, sef Deddf Cynllunio (Sylweddau Peryglus) 1990. Fel sy'n cael ei drafod yn y memorandwm esboniadol, ac mae e wedi codi mewn tystiolaeth, barn Comisiwn y Gyfraith, rwy'n credu, yw bod y Ddeddf rwyf wedi cyfeirio ati yn gweithio'n iawn fel y mae hi, felly does dim llawer o angen i ddod ag e i mewn i'r Bil yma, ac efallai nad yw e'n ffitio yn union y tu mewn i fframwaith y Bil. Ydych chi'n cytuno gyda hynny, neu ydych chi'n gweld y byddai yna rinwedd, o bosib, o ddod ag e mewn ffurf fwy cyfoes a dwyieithog i mewn i'r cod cynllunio, fel sy'n cael ei argymell?

Diolch. I'm not aware of any specific issues with the hazardous substances Act from members, so I'm not clear about a reason why it should be reinstated quickly in that way, although I can see the benefits in having truly bilingual legislation. It's certainly a very important part of legislation, so it might be something for a future programme. My understanding is its remit does extend beyond land use planning, so it makes sense to treat it separately and not include in the consolidation. But I can see why it's important and we need to make sure its provisions remain operational.

Diolch. Jest rhywbeth roeddwn i wedi anghofio'i ofyn ichi: oes yna rywbeth arall, heblaw am yr elfennau rŷch chi wedi cyfeirio atyn nhw'n barod, ac oes yna unrhyw gyfreithiau eraill sydd wedi cael eu hanghofio ac y dylid eu cynnwys yn y Bil yma?

I don't believe so. Again, nothing specific has been raised by our members or been picked up by us. There's clearly a wide range of associated legislation that runs alongside planning, but the explanatory memorandum that Mr Mynors has produced sets out why things are either included or not included, and that makes a lot of sense to us. So, we're satisfied with the way it's proceeding, I think.

Diolch yn fawr. Dyna bopeth gen i am y tro, Cadeirydd.

Diolch. Section 11 of the Planning (Wales) Bill requires public bodies carrying out any function in relation to development plans to exercise those functions in line with the sustainable development principles in the well-being of future generations Act. Are you content that the provisions made in section 11 of the Bill do that?

Yes, insofar as it replicates what's in the 2015 Act, and I fully support it being there. My only hesitation would be the point that I made earlier: the place it sits at the moment, as I read it, applies to plan making, and then it's replicated later, under section 51, Part 2, which does the same for development management functions, so determining planning applications. I personally think there's a reason why it should be at the very top of the legislation, so that it applies to absolutely everything within the Bill, whereas at the moment, the way I read it—and I might be wrong—is it would just apply to those two relatively specific functions. So, planning enforcement, for example, isn't currently covered by that statement, and I would suggest that it should be, as well as the other provisions in the Bill.

Okay. Thank you very much. We can raise that with the Minister when the Minister comes in.

Many of the Planning (Wales) Bill's provisions refer to 'relevant consideration', which, as stated in the explanatory memorandum, replaces reference in existing legislation to 'material consideration'. What's the difference between 'relevant' and 'material' consideration to people who are practitioners?

I think there is no difference, really. I'm not sure that this is necessarily a problem that needed fixing, but we've certainly got no objection to the proposed change, although we would ask that the explanatory note that states that 'relevant' has the same meaning as 'material be added to the Act to make that clear. So, perhaps, in the definitions in, I think, section 408, it could be included there, just to make that bullet-proof, if you like.

Okay. Thank you very much. Back to you, Tom.

In response to the Law Commission’s 2017 consultation on its proposals for a planning code for Wales, RTPI Cymru suggested that clarity was needed about the meaning of 'consolidation' and 'codification'. Are you able to elaborate on the concerns that led RTPI Cymru to express that view, and do you have any reservations in relation to a code of Welsh law on planning?

Sorry, would you mind repeating the last bit, please? The sound was a bit troublesome.

Yes. Are you able to elaborate—I'm assuming you got the first half—on the concerns that led RTPI Cymru to express that view about the clarity being needed between 'consolidation' and 'codification', and do you have any reservations in relation to a code of Welsh law on planning?

Okay. Thanks. I think that, initially, those concerns were raised largely because 'codification' was a very new term in 2017. It wasn't something that practitioners were familiar with. I think that's changed over the years and we are more familiar with what it means now. So, I think that as long as there are provisions in place for the various secondary legislation and regs to flow through so the system keeps operating smoothly, I don't think we have concerns. We certainly welcome the idea that this can be updated in the future. So, as legislation may change in the future, which is inevitable, the code can be updated rather than us having new legislation appended and that we end up with the library full of statutes that we have at the moment. So, I think our position has changed in that sense. Now that we understand it, we’d support what's proposed.

What do you understand the planning code to be in practice, and would that understanding be shared across your membership?

My understanding is largely taken from the guidance notes provided, which are very helpful. So, it means that all of the legislation is consolidated into one place, updated. There's some inclusion of policy or case law where applicable, but the primary thing is around it being able to be updated without stand-alone legislation and resulting in that big plethora of legislation that we have at the moment. I think that many of our members are probably not that directly involved in this. They've looked at details of the legislation to make sure that key bits still exist and do what they need them to do. I'm not sure to what extent they fully understand the future benefits of codification, but that's something that we can help publicise.

And finally, which areas of law do you consider should be captured in any planning code for Wales?

I'd suggest that the existing Bill captures the essentials that are needed in the first instance, but I think, in terms of a broader code, infrastructure goes hand-in-hand with planning. I understand from the memorandum and the guidance notes the logic of why that's not included now, because it extends far broader than the planning system alone—there are separate consenting regimes—but it operates hand in hand, and likewise the agriculture and countryside legislation, with things like public rights of way being particularly important given the rurality of much of Wales, and the way in which that goes hand in hand with planning. So, I wouldn't suggest it needs to be included now in this Bill, but, as part of a wider code, I'd suggest those are key parts that should be captured.

Diolch. Adam.

Iawn. Mae nifer o gwestiynau nawr gen i ar fater eithaf manwl a thechnegol sy'n ymwneud â Bil manwl a thechnegol. Beth yw eich barn am ansawdd a hygyrchedd y deunydd esboniadol a’r dogfennau sy’n cael eu darparu ochr yn ochr â’r Bil? Rydych chi wedi cyfeirio at beth o'r cynnwys yn ystod eich tystiolaeth yn barod y bore yma, ond ydy'r deunydd yma yn hygyrch, yn ddefnyddiol ac yn ddealladwy i'r rhai sy'n ceisio deall y materion hyn?

Diolch. I would say that I think that the accompanying materials are very good in terms of quality, and they’re certainly comprehensive. The electronic format helps us to do searches on keywords as needed, and I think that will really come into its own once the Act's in place and we're using it on a day-to-day basis and need to dip into it to reassure ourselves of what's right. I mentioned before the table of destinations. That's absolutely essential and will be extremely helpful, so we just need to ask that that's maintained in the future as changes are made. I think what's really important to us is, perhaps, ongoing support as the Bill is enacted and comes into place. So, alongside the explanatory materials, any other resources to support practitioners, any training guides or courses, both as the Bill progresses to its last stages, and then in actually implementing the Act would be really helpful to practitioners. But I think what is there is very good quality—and accessible, sorry, in terms of part of your question.

Diolch. Mae Llywodraeth Cymru yn dweud, yn sgil pasio’r Bil, y bydd angen i awdurdodau cynllunio ar draws Cymru ddiweddaru gwahanol ddogfennau a chanllawiau a chynghorion, ac yn blaen, ar y we i sicrhau eu bod nhw'n gyson wedi hynny gyda'r Bil fydd wedi ei basio. Maen nhw'n rhagweld y bydd hwn yn cymryd tua pedwar diwrnod ar gyfartaledd i swyddog cynllunio ar gyfanswm cost, felly, o £1,000. Ydy'r asesiad yma yn un rhesymol, ydych chi'n credu—hynny yw, os ydych chi wedi medru trafod gyda'ch aelodau y baich gwaith fydd yn deillio o hyn?

Diolch. I think it might be a slight underestimate of what's required in terms of planning authority work. I think a lot of the work will come in some of the template documents—so, things like statutory consultation letters, site notices, press notices, decision notices, where the legislation sets out what they say. So, there'll be lots of references in those to the current legislation that have to be updated. Having worked in that sector in the fairly recent past, I know how difficult it is to update some of those templates. It can be quite time consuming. However, because they are largely on a statutory template, if guidance was provided once centrally, for example, by the Welsh Government or by the Law Commission or somebody, about exactly which sections need to be tweaked and where they're mapped to—so, if there's a reference to an existing bit of legislation—it just tells each LPA what the new section is and does that once instead of doing it 25 times. That will cut down the time. So, I think it's probably not far off, but I suggest it's probably a slight underestimation of the time needed to make those updates.

Yn eich barn chi, mor belled â bod defnyddwyr o'r system gynllunio yn y cwestiwn, a fydd y Bil yn helpu'r rhai sydd yn gorfod rhoi cyngor proffesiynol i ddefnyddwyr y system gynllunio, boed yn swyddogion cynllunio neu yn ymgynghorwyr cynllunio?

Yes, absolutely. I think that simplification will be really helpful. I think it will take us a short period of time to realise that as we're all learning, as I mentioned before, the new sections of legislation and where they're mapped to, but that will come with time. Many of our members work cross-border, so they'll have to get used to working in England and Wales. But, just as a simple example, my remit also covers Northern Ireland where, for example, a section 106 agreement is a section 76 agreement over there. You just get used to it and adapt. So, with a little bit of time, yes, it will make it a lot simpler for users of the planning system and planning practitioners.

Ac i barhau ar y trywydd yma, ynghlwm wrth y ddeddfwriaeth yma, mae yna gynigion gan Lywodraeth Cymru ar gyfer raglen o is-ddeddfwriaeth o dan y ddau Fil cydgysylltiedig. I ba raddau, hefyd, fydd y rhaglen yma o reoliadau, o is-ddeddfwriaeth, yn cyfrannu at ragor o hygyrchedd yn y gyfraith yn y maes hwn?

Diolch. Again, I think that the principle of consolidation, and the codification, if that's proposed as well, is really helpful, so that will be beneficial in the long term. I think where we do have a question mark at the moment, and this may be our misunderstanding rather than a gap, is just where the secondary legislation and the regs that are in place now fit. Once this is enacted, we need everything to flow to keep working. So, to name three elements, things like the use classes Order from 1987, the general development procedure Order and the general permitted development Order are day-to-day stuff in the operation of planning, so we'd need to understand what happens to those, because they're embedded in existing legislation that will then no longer apply in Wales. I think we just need—it's one for the legal experts—reassurance that either that's updated in time or the existing situation continues without a gap, to make sure that things can keep working.

Mae ateb da yn rhagweld y cwestiwn nesaf, ond gwnaf i ei ofyn e beth bynnag. O ran amseru y rhaglen o is-ddeddfwriaeth, yn eich barn chi, a fydd e'n bosib i ddod â'r Biliau cynradd yma i rym cyn rhaglen o ailddatgan ac o bosib cydgrynhoi yr is-ddeddfwriaeth berthnasol?

I'm not sure that it would be possible unless we're absolutely certain that existing secondary legislation and regs continue to apply. If they don't, then we'd have a gap and things would grind to a halt, to use day-to-day language.

Ocê, diolch yn fawr. Diolch yn fawr, Cadeirydd.

Back to me. I listened to the last answer you gave to Adam Price. Will there need to be a restatement of 'Planning Policy Wales'? Technical advice notes, of which we have an awful lot, that seem to be looked at more by people in terms of objections in planning than the planning regulations themselves, will these have to be rewritten, could they just be carried forward, or will it be a combination of the two?

They wouldn't need to be rewritten. There might be some factual tweaks that are needed, for example if PPW refers to a specific part of legislation that's changed, but that could be done as a factual update. From my understanding, and from what I've read, the Bill doesn't seek to amend policy. It includes bits of it where it's appropriate, but it doesn't seek to amend any of the policies that are contained in 'Future Wales', PPW or the TANs. So, I don't think there'll be any significant rewriting required. It'll just be those little factual updates, if indeed they refer to legislation.

Thank you. Finally, from me: are there any matters that you wish to raise with us that we haven't raised with you that might help us with the scrutiny of the Bill?

I don't think so, other than what we've already covered, other than just to mention, again, the guidance to practitioners once this is enacted, learning the lessons from the Historic Environment (Wales) Bill. Cadw provided some fantastic training sessions to explain how it works in practice for users. So, anything along those lines would be welcomed. I note that in the explanatory memorandum, it refers to a three-hour webinar and factors in some time for local planning authority members or officers to attend, but I think it will need more than that. That's most welcome. But I think there'll be widespread interest in attending that, rather than just the one officer that's budgeted for per council, and also some wider guidance and support.

It comes to me to thank you very much for coming along and giving your evidence, which we found very informative and helpful. It has given us some issues to raise with the Minister when we see the Minister again. You'll be sent a transcript of this to check for accuracy. I always tell people to check that, because if you're anything like me, I tend to move my head occasionally, and when I move my head, sometimes it doesn't pick up some of the words. So, please do check it. If you have moved, you can move out of the microphone range. Thank you very much. Can we move into a short break now? A short break for five minutes.

This is the Planning (Wales) Bill and Planning (Consequential Provisions) (Wales) Bill evidence session with the Planning and Environment Bar Association. I'm very pleased to welcome Annabel Graham Paul, Planning and Environment Bar Association. Thank you very much for coming. At the close, I will tell you that you will get a transcript for you to check.

I'll move to my first question. The Counsel General has said that the Planning (Wales) Bill will mean that legislation applicable in Wales in the area of town and country planning is easier to use and understood by everyone who has to engage with it. Does the Planning and Environment Bar Association agree with this sentiment?

Diolch. Prynhawn da. Thank you very much for having me to give evidence here today. Just in response to that question, Chair, I thought I would just give a few figures, if I may. I take no credit for these figures; they came from Dr Charles Mynors, who's familiar to you all. He produced them in a presentation that he gave in the context of the drafting of this Bill, but I think they tell their own story.

When our our modern planning system first was developed after the end of the second world war with the Town and Country Planning Act 1947, that Act had 120 sections and 11 Schedules. Where we've got to today, decades later, is that in Wales we've got five different pieces of legislation covering the same ground, and within those five Acts as amended we have 660 sections. Of those sections, 337, so that's about half of them, apply in both Wales and England, sometimes slightly differently, 245 sections apply only in England, and 78 sections apply only in Wales.

Just from those figures, I think you can see, Chair, and others, that's quite inaccessible and confusing, particularly for members of the public, to navigate. So, yes, I absolutely do agree that we've reached a stage now where it's almost as if you've moved into a house some time ago and you've continued to receive things and accumulate clutter along the way, and it really is time for a clear-out, basically. So, I absolutely agree that simplification and codification is much in order.

Thank you very much. I've heard from personal experience, as an elected representative, people saying to me, 'Why isn't this being done, it says this in this Act?' So, I have to explain that that Act only applies to England. Have your members come across that as well?

Yes. We are the Planning and Environment Bar Association for England and Wales. We practice within the jurisdiction of England and Wales, and so the majority of our members will be acting in cases on both sides of the border. Certainly it is the case that the law in Wales is different, but sometimes the same, and even for lawyers and experienced practitioners, we're often left in a situation where we have to sort of double, triple-check things to see where we're supposed to be looking. And so, turning to, as I say, members of the public or others, one can completely understand why it's difficult. The Town and Country Planning Act 1990 was enacted pre devolution, we've got some bits post devolution. So, we really do now need a comprehensive Act for Wales, bilingual, that is just for Wales, so everybody knows all the law for Wales is just in one place.

Thank you very much. I think I know the answer to this question—it's what you've just said—but do you think now is the right time to consolidate planning law in Wales?

It's as good a time as any—I think that's the answer to that. A lot of work has been done by the Law Commission and by the Welsh Government to get to this stage, so I don't see any reason to put it off any longer.

Adam.

Yn Gymraeg?

Os gwelwch yn dda, ie. Mae ein Rheolau Sefydlog ni yn gosod mas y paramedrau ar gyfer diffinio beth yw Bil cydgrynhoi. Yn fras iawn, mae e ond i fod i ddod â phethau sydd eisoes yn bodoli at ei gilydd a gwella hygyrchedd heb newid y gyfraith yn sylweddol—o gwbl, a dweud y gwir. Ydych chi'n cytuno mai Bil cydgrynhoi ydy hwn yn y ffordd dwi wedi'i ddisgrifio, a bod yna ddim unrhyw achos o newid y gyfraith wedi ffeindio'i ffordd i mewn i'r Mesur?

Diolch. Thank you. I'm looking at Standing Order 26C—I think that's the one on consolidation. On improving presentation, I think one of the really nice things to see in the way the Bill has been drafted is the clarity that's come, for example, by putting a table in that has got the time periods for enforcement. Something like that definitely improves presentation and makes it much clearer than having lots of different sections.

Clearly, the intention has not been to change the law, and there's much within it that is very familiar in its wording in terms of reproducing the existing law. There is always going to be a legal risk. I'm not saying this is necessarily going to happen here, but when you do the clear-out process, maybe you remove something you shouldn't have removed or you change it in some way that potentially gives it a different interpretation and a different meaning. So, that is always going to be a risk here. Not that I've seen anything that obviously stands out as being a potential problem in that regard at the moment.

There are a few instances—and I think, Chair, you mentioned this in another question to Mr Hand just before me—where terminology has been made more modern, for example the change from 'material considerations' to 'relevant considerations'. There are potentially, I suppose, questions over that. Does that necessarily mean the same thing? If it does, make absolutely clear it does mean the same thing. So, there could be an element of doubt over something like that, but hopefully it can be made sufficiently clear that it is intended to mean the same thing.

I would agree with what Mr Hand says. I don't think it's needed. I think we all know what material considerations are and I don't think that that word 'material' is particularly problematic. But I think that sort of thing is the only thing where I would query whether there is a risk in terms of consolidation and whether you're moving into change rather than simply consolidating.

Oes yna broses ymgynghori wedi bod gyda'ch aelodau chi fel rhan o'r Bil yma, ac ydych chi wedi teimlo eich bod chi wedi bod yn rhan o'r broses?

Yes, we have been consulted. We have not yet submitted our response, but we're not quite at the end of the deadline on that, and we will be submitting a response. So, yes, we have been consulted. As I said, Dr Mynors has been extremely active within the legal profession, as well as in other areas, at giving talks, seminars, presentations, as the Bill has been developing, and, indeed, as far back as when he was in the Law Commission and doing that exercise as well. So, I think everybody's fully aware that it's happening and is able to contribute if they wish to.

I ba raddau ydych chi'n credu bod argymhellion gwreiddiol Comisiwn y Gyfraith ar y maes yma wedi cael eu gweithredu'n effeithiol trwy gyfrwng y ddau Fil yma?

I've had a look at the transcript of the evidence session that you had last Monday with the Law Commission and Professor Alison Young, and I know that she felt, on behalf of the Law Commission, that the recommendations had been implemented. I would defer, really, to her on that. I don't think there's anything further that I can add from a practitioner perspective, other than to say that if the Law Commission are happy that their recommendations have been implemented, or, where not, that there are good reasons for it, then we wouldn't seek to say anything different to that.

Sut ŷch chi'n credu y bydd y Biliau yma yn effeithio ar waith eich aelodau yng Nghymru? Oes yna hefyd unrhyw ganlyniadau anfwriadol sydd o bosib yn medru deillio o'r ddau Fil?

So, as lawyers—clearly, it's a new piece of legislation that everyone will have to become familiar with—we're very used, as I think Mr Hand said earlier, to the section numbers that have been around since 1990, so we all talk about section 106 agreements, section 288 challenges, putting in a section 73 application—these are almost shorthand now for what the substance of it is. So, I'm sure we'll all inadvertently say the wrong thing for a while. So, it will take time to adjust. We've now got to call local planning authorities 'planning authorities', and that kind of thing. So, yes, but I think, in terms of the actual substance of it, since there is no change in the law itself, apart from familiarising ourselves with the new layout, it should be a continuation, really, of the same. And hopefully, going forward, for people who are starting out now, rather than transitioning from the older system, it should be clearer and easier for them. One of the things we seek to do is to encourage the new generation of people to come forward who want to practice in planning and environmental law, particularly from diverse backgrounds and people who haven't necessarily thought of that area of law as one they would be interested in. So, the more it's in the spotlight and the more it looks like it's exciting and new, I think that can only be a sort of good thing for the profession.

Ac yn olaf gen i am y tro, oes yna unrhyw welliannau penodol y hoffech chi weld yn cael eu gwneud i'r Biliau yma i helpu hwyluso neu gyfoethogi'r gwaith i gydgrynhoi cyfraith cynllunio yng Nghymru?

I think not so much in the Bills themselves, but one thing, when I've just been preparing for today, that I think might be helpful is that the explanatory memorandum in relation to the Planning (Consequential Provisions) (Wales) Bill is quite similar to the explanatory memorandum for the main planning Bill, and the consequential provisions Bill, as these things are, is incredibly detailed and complicated, because you have to say, ‘I'm deleting these words from this section’ and all of that. I think it would be helpful to have something—and it may be that it's somewhere else—to explain the consequential provisions Bill in a bit more of an accessible, easy-to-use terminology, because, at the moment, the explanatory memorandum sets out the broad principles of what's happening for both Bills, but it doesn't really go into the detail as to what's happening with the consequential provisions and how that's changing. So, I think that would be helpful for us as practitioners, to make that Bill more accessible, but, overall, I don't have any comments in relation to the substance of the Bills themselves.

Iawn. Diolch yn fawr.

Diolch. Tom.

Thank you. The Welsh Government has decided to exclude some pieces of relevant law from the Bills, for example, relevant provisions in the Planning (Hazardous Substances) Act 1990. What are your thoughts on this approach? Do you think the Welsh Government has provided sufficient justification for not including some pieces of legislation?

Yes, well, you can't include everything, particularly when you're trying to create a Bill or an Act that is accessible and simple, and so the line has to be drawn somewhere. I read, again, what the Law Commission and Professor Alison Young said about hazardous substances and that this would be more suited to a future code, and I think I would agree with that, because it's not just a planning matter, it’s more of a crossover with environmental. Similarly with public rights of way, other countryside—hedgerows—points like that, which perhaps, again, sometimes are relevant to planning, but not always, I can see the justification for treating them separately.

The one thing where—. I perhaps will come on and talk about the plans for a code in a later question, but, from a practitioner point of view, planning and infrastructure consenting are very interlinked, particularly where you're dealing with infrastructure, where you shift from one system to another quite seamlessly as you just get more and more powerful pieces of infrastructure. So, whilst I fully accept that there needs to be separate Acts—and we have the Infrastructure (Wales) Act 2024 already for that—I think, in terms of perhaps looking at them holistically together, and perhaps in a code, that is something that should be treated as part and parcel of the same type of work.

Similarly, compulsory purchase as well, and I know that we don't have yet consolidation or other primary legislation on compulsory purchase, although the Welsh Government does now have those legislative powers and I think that for the future is something that would be really good to be able to bring in with it. There are a few provisions that have come through from the 1990 Act in the Bill dealing with compulsory purchase, but that's only a very small drop in the ocean of it. There's a whole wealth of other law dating back to the Acquisition of Land Act 1981 and things about compulsory purchase. I think there is definitely scope for looking at that in the Welsh context as the next project, and seeing—. So, planning infrastructure and compulsory purchase really—and, obviously, the Historic Environment (Wales) Act 2023, which we have—as all that kind of group together.

Thank you. You've sort of answered my next question, but I'll ask it anyway. Are you satisfied that this is a comprehensive consolidation of all the law relating to planning in Wales?

As I say, yes, insofar as it deals with the Town and Country Planning Act 1990, the Planning and Compensation Act 1991, the 2004 Act and all that. So, all the bits that it's seeking to consolidate, yes, but, as I say, there are other areas, but they are dealt with in other Acts. And aside from compulsory purchase, we do now have the Historic Environment (Wales) Act 2023 and the Infrastructure (Wales) Act 2024. So, we do have that already in Wales. So, it's just, really, compulsory purchase that is yet to come.

Thank you.

Thank you. From what you've said in answers up until now, I take it you're in favour of the codification of law, but what would the Planning and Environment Bar Association and your members expect to achieve by this?

Well, obviously, we're self-employed barristers. So, in a sense, we're on the receiving end of what our clients instruct us to do, whether that is the Welsh Government as a client or planning authorities or developers, private individuals and local interest groups. So, we're not really there to achieve anything in policy terms ourselves. But, in terms of our work, I think we do want to see it. Whilst some people might say, 'Lawyers want everything to go wrong so there's more for them to do', we do actually want to see good decision making, and we do want to be involved in cases where you can actually properly reconcile the different interests between those who want to see land used in different ways and see fair enforcement. So, I think it does go towards achieving that aim, and so we support that.

Thank you. We're talking about planning, but there's a whole range of other Acts that impinge on planning, aren't there? Infrastructure is one, some of the environmental rules that have stopped building in certain places because of chemicals that exist in the area. Do you consider that the Act that is predominantly about planning needs to have some more of these, or just needs to link across to them?

So, I think, as I've already said, you've got to stop somewhere. We can't have one Bill covering everything that we might ever need, and so there's always going to—. With something like planning, which does take in, as you say, environmental matters, potentially other things in relation to rights of way, village greens and things like commons, there's always going to be a need to look to other pieces of legislation as well. I think the balance has been struck correctly in this case.

Thank you very much. Back to you, Tom.

Oh, it is. That was quick. The Welsh Government states that there will be one-off opportunity costs to private law firms if the Bills are enacted because of the need to familiarise themselves with both Bills in order to correctly inform work for their clients. This familiarisation exercise is anticipated to form part of existing internal briefing, which will take around three hours to prepare, with support from Welsh Government guidance. Do you believe that this is an accurate assessment of the extent of work needed to familiarise with the Bills?

Yes, I think it's a bit of a tricky one to estimate, because it obviously depends to what extent you want to familiarise yourself with the Bill. If you are a high-street firm that has an occasional planning case that passes your desk, but it's not the mainstay of your practice and you need to know, broadly, what the Bill is about but would then go and seek more detailed advice on any particular matter, then I would say three hours probably sounds about right. I think, for somebody like myself and our members, whose entire practice is in planning and environmental law, we would probably, hopefully, spend a little bit longer than that. But, ultimately, frankly, I think that's our problem rather than a problem for the Senedd, because you're there to create the legislation and we're there to respond to that. So, whilst I completely see that training costs for the Government and for planning authorities are very important, I think in terms of private firms, really, that's down to us to ensure that our continuing professional development is up to date.

Thank you. What are your views on the Welsh Government's proposals for a programme of subordinate legislation under the Bills, and to what extent will this contribute to the accessibility of law in this area?

Yes, obviously, there are a lot of different bits of subordinate legislation, and sometimes they can really be more complicated to navigate than the primary Act, and there are lots of differences in subordinate legislation between the regulations and things in England and Wales as well. So, I think that's a good idea. I mean, you will need to consider to what extent it is able to be done in as seamless a way as with the Bill because of the actual volume of it. But, yes, I think that I would support that, but we'd need to see the detail of how that's going to work.

I know, for the RTPI, Mr Hand raised earlier today the issue about ensuring continuity—so, where you've got reference to subordinate legislation, to ensure that that is still going to apply in terms of the transitional provisions. As I say, I suspect that that is dealt with in the consequential provisions aspect of the Bill, but it would be helpful, I think, just to have clarity on that from the drafters, just to ensure that things like the general permitted development Order and the use classes Order and the development management procedure Order and all of that will continue to apply when this becomes an Act.

Thank you very much. Adam.

Yn eich barn chi, a fydd dod â'r Biliau i rym yn gofyn am ddiwygiadau neu ailddatganiadau helaeth o ran 'Polisi Cynllunio Cymru'—hynny yw, y fframwaith sy'n gosod mas y fframwaith polisi o'r enw 'Polisi Cynllunio Cymru', y nodiadau cyngor technegol, y llawlyfr rheoli datblygu a'r llawlyfr cynlluniau datblygu cysylltiedig?

Yes, so, in terms of the policy documents, there's no change to the policies as a result of this Bill. There are a few references to the existing legislation within those documents. So, for example, 'Planning Policy Wales' has an annex that deals with the legislative provisions, so something like that will need to be updated. But it should be a relatively straightforward exercise to just go through it and change the relevant sections and references to the legislation. So, I don't think there'll need to be any changes of real substance, but there will need to be almost an administrative exercise to go through and change those references. But I think that's the extent of it.

Ar wahân i'r hyn ŷch chi eisoes wedi'i ddweud, a oes gennych chi unrhyw farn o ran y math o gynllun o is-ddeddfwriaeth a fyddai'n eich helpu chi fel bargyfreithiwr yn y maes yma, a'r cyhoedd, i ddeall deddfwriaeth gynllunio yn ei chyfanrwydd?

So, as I've said, the secondary legislation is sometimes more voluminous and complicated than the primary Act, so perhaps the task of simplifying and consolidating that may be even more challenging than this one. That's not to say it shouldn't be attempted, but it's almost like the devil's in the detail, and a lot of the secondary legislation is really important to understand exactly what's happening, particularly procedurally, and, as I say, things like permitted development, which is constantly changing, and it's extremely complicated whether your fence can be x metres high next to a highway or this—. We're always having to check it all the time. And it differs from England too. So, yes, I think that will be good.

I think the only word of warning I would make with something like that, to simplify it too much, is just by way of experience of what happened in England back in 2011—and this is in a different context, because it's in a policy context—but when the coalition Government created the national planning policy framework, which was a piece of policy that was intended to simplify all of the different planning practice guidances and planning policy statements that have been around for quite a long time and had got quite voluminous, but were quite well understood, they created this one policy document and said, 'Right, we have a one-stop shop, and it's all very simple'. And it did make changes as well; it wasn't just consolidation. But that NPPF has triggered a lot of litigation in the higher courts in terms of its interpretation. So, the danger can be that oversimplification creates scope for interpretation. So, I think that would be the only warning when you're dealing with something like secondary legislation, where there's a lot going on there, that if we seek to make it too simple, you can almost open yourself up for different people to take different views and, potentially, courts to have to intervene in terms of interpretation. But if it can be consolidated so that it's not too stripped bare and is actually consolidated and made more accessible, then I'm sure that would be a positive thing in the same way as the Act. But, as I say, it's probably more voluminous.

A gawn ni jest aros gyda'r pwynt yma? Mae'n fy nharo i'n eithaf diddorol. Gyda'r rhan hynny o'r broses gydgrynhoi sydd yn ceisio newid yr ieithwedd heb newid y sylwedd, yn aml iawn er mwyn moderneiddio yr iaith, y geiriau sy'n cael eu defnyddio, neu, hynny yw, eu gwneud nhw'n fwy eglur mewn rhyw ffordd wahanol, oes yna ganlyniadau anfwriadol yn gallu digwydd yn y ffordd ŷch chi newydd ei hesbonio? Hynny yw, bod rhywun yn gallu dadlau, 'Wel, roedd y cynsail yn ymwneud â dehongliad o'r gair sydd nawr ddim yn y rheoliadau neu ddim yn y Ddeddf, hyd yn oed.' Ydy hynny yn cadarnhau y pwynt ŷch chi newydd ei wneud, a sut mae osgoi hynny? Os ŷch chi'n newid y geiriau, ydych chi'n cael gwared ar yr effaith gyfreithiol sydd wedi chwarae mas mewn achosion?

Yes. So, I think the sort of example we've already talked about is the proposed change from the words 'material considerations' to 'relevant considerations', as an example, to modernise that word, and there's a whole load of case law on what is capable of being a material planning consideration out there. And so, I suppose, taking a literal view, that does not strictly apply to what is a 'relevant consideration', because it's a different word, and so one could seek to challenge it and say that 'relevant consideration' means something different. I mean, I think it would be very hard for someone to be successful in doing that if it's very clear that the intention was that it would mean exactly the same thing, because the court would take a purposive approach to it and look to things such as this discussion or anything else that's discussed in the Senedd that makes that clear. But there is, I suppose, a risk and scope that a court could say, 'Well, why did they change that? They must have meant something different.' So, that's the risk. But I think that, if you make it clear that it's to modernise and it's not intended to mean anything different, then you remove that or at least minimise that risk. But, again, I do support what Mr Hand said earlier that, for my part, I don't really see that the word 'material' is an archaic or difficult word for members of the public to understand. So, I wouldn't say that it necessarily needs to be changed, from a personal view, but if it is changed, then, as I say, the case law is not going to directly apply, but it would obviously apply by analogy in that sense.

Iawn. Diolch yn fawr.

Okay. Thank you very much for coming along. The transcript will be made available for you to check for accuracy. Is there anything you'd like to tell us that we haven't asked you?

Let me just check; one minute. I don't think so. We do still have the opportunity to respond to the consultation, so if there is anything, we'll include it there.

Okay. Thank you very much.

Diolch yn fawr. Thank you.

Can we have a five-minute break? Yes.

Can I welcome our viewers back to this meeting of the Legislation, Justice and Constitution Committee? This takes us on to one of our regular standard items, item 7, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3.

The Sheep Carcass (Classification and Price Reporting) (Wales) Regulations 2025. Regulations require the classification and price reporting of sheep carcasses by larger approved slaughterhouses in Wales, of which there are currently four. The explanatory memorandum states that these regulations will be implemented in line with similar legislation already introduced in England and those being considered in Scotland and Northern Ireland. Senedd lawyers have identified one technical and two merits reporting points. A Welsh Government response has not yet been received. We've got Jen from our legal team who perhaps would like to run us through the reporting points.

Thank you, Chair. So, there's one technical reporting point, which relates to an inconsistency between the Welsh and English texts. There are two merits points also noted.

The first query is why the explanatory memorandum to the regulations states that the Welsh regulations will have practical effects on the same day as the English regulations, but the Welsh regulations actually come into force two weeks later than the English regulations.

The second point also seeks an explanation as to whether the effectiveness of these regulations relies upon or is affected by the United Kingdom Internal Market Act 2020, and also seeks clarity on whether an assessment has been made by the Government of the legislative position in Scotland and Northern Ireland in relation to this area, and the impact any divergence in equivalent regulations may have on the effect of these regulations in Wales. And as you say, Chair, a Government response is awaited in relation to those points.

Thank you, Jen. Any Members want to raise anything? No.

This takes us on to the next item, the Senedd Cymru (Disqualification) Order 2025. The Order designates offices whose holders are disqualified from being a Member of the Senedd, but not from being a candidate to be a Member. This Order should be read with section 16 and Schedule 1A to the Government of Wales Act 2006, which also prescribes other disqualifying offices and categories of persons disqualified from being a Member of the Senedd, and in some cases from being a candidate. The Order revokes the Senedd Cymru (Disqualification) Order 2020, though that Order continues to have effect for an election to the Senedd held before April 2026.

Senedd lawyers have identified two merits reporting points. A Welsh Government response is not required. Jen, would you like to take us through the reporting points?

Thank you, Chair. So, the reporting points, the first one highlights that the criteria used to form the basis of the list of disqualified offices emanates from this committee's predecessor's recommendations in 2014, following its inquiry into the rules pertaining to disqualification from membership of the Senedd.

The second point lists the offices that have been added and are now classed as disqualified offices. No response has been requested from the Welsh Government, as the points are raised for the committee's information.

Thanks, Jen. Are we happy to agree the reporting points? Yes.

Item 7.3, the National Health Service (Concerns, Complaints and Redress Arrangements) (Wales) (Amendment) Regulations 2025. These regulations amend the 2011 regulations of the same name to make various provisions in relation to how concerns or services provided by, or under arrangements with, the NHS in Wales will be considered. These provisions include general principles applicable to the handling and investigation of concerns, defining an early resolution procedure, and changes to the monitoring and annual reporting requirements imposed on responsible bodies.

Senedd lawyers have identified one technical reporting point. A Welsh Government response has not yet been received. Jen, do you want to take us through the reporting point?

Thank you, Chair. As you say, just one on this one, which highlights an inconsistency between the Welsh and English texts.

Are we happy to agree that reporting point? Yes.

Moving on. Item 8, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3, previously considered. The Town and Country Planning (Fees for Applications, Deemed Applications and Site Visits) (Wales) (Amendment) Regulations 2025. The committee considered this instrument at our last meeting and we laid our report the same day. Members are invited to note the Welsh Government response to the report, which has since been received. Jen, do you have anything to raise?

Only to note that the Welsh Government has accepted the majority of the points raised in the committee's report and intends to use the correction prior to making procedure to rectify the issues, including changing the number of hectares, which was incorrectly referred to in the Welsh text as 1.5 hectares, to 1.2 hectares.

Thank you very much.

Item 8.2, the Amendments to Subordinate Legislation (Miscellaneous Corrections) (Wales) Regulations 2025. The committee considered this instrument at its meeting on 15 September and laid its report the same day. Members are invited to note the Welsh Government's response to the report, which has since been received. Jen, do you have anything to raise from the Welsh Government response?

Just to highlight from that response that the Government has stated that it intends to consider lessons to be learned from dealing with corrections to subordinate legislation through an omnibus instrument such as this one. The Government will then determine whether or not further omnibus instruments should be brought forward in the future.

Thanks, Jen. Any Members have anything to raise? No.

Notification and correspondence under the inter-institutional relations agreement: correspondence from the Welsh Government meeting of inter-ministerial groups. A letter from the Cabinet Secretary for Finance and Welsh Language on the Finance: Interministerial Standing Committee of 3 October 2025. The Cabinet Secretary for Finance and Welsh Language informs us that the Finance: Interministerial Standing Committee will take place in Edinburgh on 17 October. The Cabinet Secretary says he will also be meeting separately with the new Chief Secretary to the Treasury to discuss the Welsh Government's key priorities for the UK autumn budget. Do Members have any comments? No.

Papers to note: correspondence from the Finance Committee to the Counsel General and Minister for Delivery on the financial implications of the Planning (Wales) Bill and the Planning (Consequential Provisions) (Wales) Bill. The Finance Committee letter requests further information from the Counsel General in relation to the financial implications of the planning consolidation Bills that were introduced to the Senedd on 15 September. Do Members have any comments?

Correspondence to the Cabinet Secretary for Social Justice, Trefnydd and Chief Whip on the Welsh Government's supplementary legislative consent memorandum, memorandum No. 2, on the Crime and Policing Bill. Members are invited to note the outgoing letter we sent to the Cabinet Secretary following our consideration of the supplementary legislative consent memorandum, No. 2, on 22 September. We will bring back the Cabinet Secretary's response for consideration when it's received. Do Members have any comment? No.

The Welsh Government's supplementary legislative consent memorandum, memorandum No. 6, on the Mental Health Bill. Members are invited to note memorandum No. 6 on this Bill, laid by the Welsh Government last Tuesday. Given the Plenary debate to seek the Senedd's consent for the Bill will be held tomorrow, unfortunately there's no time for the committee to undertake meaningful scrutiny. Unless Members have any comments they wish to make now in public session, we'll defer the discussion to the private session and then move on to the next item.

Written statement by the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs. The Welsh Government plans to amend the legislative framework in Wales to provide additional protection to European beavers, Castor fiber, in Wales. The Deputy First Minister's written statement informs us of the Welsh Government's intention to legislate for the protection of European beavers in Wales, making it an offence to deliberately harm them or damage their habitat. Do Members have any comments? No.

Written statement by the Cabinet Secretary for Education on the summary of responses to the consultation on the Healthy Eating in Schools (Nutritional Standards and Requirements) (Wales) Regulations 2013 and the accompanying statutory guidance. The Cabinet Secretary's written response informs us that the Welsh Government has published a summary of responses to its consultation on healthy eating in schools and intends to lay regulations in this area this Senedd term. Do Members have any comments?

Correspondence from the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs on general scrutiny follow-up. The Deputy First Minister has written to us following the general scrutiny session we held with him on 9 June in relation to inter-governmental meetings and the wider structure of inter-governmental working, including in the area of justice. He states that a review of the inter-governmental structures is currently under way to determine if they are fit for purpose and to identify possible improvement. In anticipation of the findings and their recommendations, this review will be discussed at the inter-ministerial standing committee later this year. The Deputy First Minister also states he had a positive meeting with the previous Lord Chancellor where they agreed to make swift progress on the UK Government's commitment in relation to exploring the devolution of youth justice and probation. Do Members have any comments? No.

As agreed earlier at item 3, we will now move into private session for items 11 and 12.