Legislation, Justice and Constitution Committee

So, we'll go into the first item on the agenda, which is item 2, which, as I mentioned, was to be the scrutiny session with the Counsel General and Minister for the Constitution. That is postponed, but just to flag for Members, we have some papers relating to that, which we'll recirculate in advance of the Counsel General's appearance with us subsequently. We've provisionally pencilled that in for 14 March, just so you're aware.

Item 3, then: we have the instruments that raise no reporting issues under Standing Order 21.2 or 21.3. The first of these is item 3.1, SL(6)154, the National Health Service (Performers Lists) (Wales) (Amendment) (EU Exit) Regulations 2022. This instrument amends the National Health Service (Performers Lists) (Wales) Regulations 2004, to ensure that dentists holding an appropriate European diploma remain exempt from the requirements to undertake foundation training before being eligible for inclusion on a dental performers list. These regulations amend an error made by the European Qualifications (Health and Social Care Professions) (Amendment etc.) (EU Exit) Regulations 2019, and the error was only recently brought to the attention of Welsh Government by the UK Government. But our lawyers— Gareth—have got no reporting points on this.

So, if we're happy to note that, colleagues—and we are—we'll move on, then, to item 3.2. Under the same section, we have SL(6)156, the Council Tax (Administration and Enforcement) (Amendment) (Wales) Regulations 2022. This amends the Council Tax (Administration and Enforcement) Regulations 1992 by uprating the tables used to calculate the amount deductible by local authorities via the employer. We have no reporting points on this, so unless there are any comments from Members, are we happy to note that? We are. Okay.

That takes us on, then, to item 4, which are instruments that do raise issues to be reported to the Senedd under those Standing Orders, 21.2 and 21.3. The first of these is a made negative resolution instrument, SL(6)157, the Food (Withdrawal of Recognition) (Miscellaneous Amendments and Transitional Provisions) (Wales) (EU Exit) Regulations 2022. We have a draft report. In respect of these regulations, they amend a number of statutory instruments relating to food composition, following the UK's withdrawal from the EU, in order to ensure compliance with the World Trade Organization's most-favoured-nation rules. Now, Gareth, you've identified one merits point for reporting.

Diolch. These regulations relate to trade in food and the mutual recognition of food products. There is no reference in the explanatory memorandum to the UK internal market, so the merits point probes the Welsh Government as to whether any UK internal market issues arise. The Welsh Government has not yet responded.

That's great. Thank you, Gareth. So, we're awaiting that response. Are we happy with that action point, as we wait for the response? We are. Thank you very much. Thank you, Gareth.

That takes us onto item 4.2, SL(6)158, the Curriculum and Assessment (Wales) Act 2021 (Transitional and Saving Provision) Regulations 2022. This starts at pack page 45, and there's a supplementary pack with the Welsh Government response as well. Just to note that it's the Welsh Government's intention that the new Curriculum for Wales under the Curriculum and Assessment (Wales) Act 2021 is going to be rolled out in a phased manner, so the regulations include the saving and transitional provision required to allow for that phased roll-out. But, Gareth, you and the lawyers have identified one technical and one merits point for us.

The technical point notes that the regulations refer to that 1996 Act without expressly saying which Act it is talking about. The answer is the Education Act 1996, but that's not explained on the face of the regulations. The Welsh Government has accepted the point and will correct it at the next available opportunity.

The merits point probes the Welsh Government's approach to the phased roll-out of the new curriculum in Wales. We know, for example, the new curriculum will apply from September 2022 for some children, from September 2023 for other children, from September 2024 for others, and so on, but those specific dates are not set out in these regulations. The Welsh Government has responded to say there was no need to specify the dates in these particular regulations; all that is needed will be a series of commencement Orders that will commence the new provisions in a phased way.

Thank you, Gareth. And just for clarity, we'd expect those commencement Orders to come across to us at some point in the future, yes?

Usually, there would be no procedure attached to commencement Orders, but if we see them and we see something of particular relevance in them, then they can be brought before the committee.

That's great. Thank you for that, Gareth. Colleagues, any comments, or are we happy to note those merits points and technical points? Thank you. Okay. Thank you, Gareth.

On to item 4.3, which is a familiar one in a sequence of these: it's SL(6)159, the Health Protection (Coronavirus, International Travel) (Wales) Regulations 2022, and in your pack you will have a draft report and a letter from 10 February relating to this. These are the regulations that revoked the health protection (coronavirus) et cetera regulations 2020, with effect from 4 a.m. on Friday, 11 February 2022, and they replace the requirements in them and change them and consolidate them. We're familiar with doing this in retrospect.

The key changes here include adding 16 countries to the list of recognised vaccination programmes and changing the testing and isolation requirements for arriving travellers. So, our lawyers have identified four technical and five merits points for reporting. Gareth, we're in your hands again.

The first three technical points seek clarity on various things—for example, the timescale for taking a day 2 test when travelling to Wales; what happens if you return to Wales without having booked a day 2 test; and the meaning of a term used in the regulations, that is, the meaning of a particular term, 'sorted BAM file', which isn't defined.

The Welsh Government response was received this morning, accepting two of the points that the regulations could be clearer, but the Welsh Government does not believe they are serious enough to require any corrections to be made. The Welsh Government considers that, when you look at the wider context, the regulations are clear enough.

The fourth technical point notes that the regulations refer to reviewing the regulations every 28 days, while the explanatory note refers to a review every 21 days, so there is inconsistency. The Welsh Government accepts the point that there should be consistent reference to a review every 28 days, and the Welsh Government will seek to address this by a correction slip. A correction slip involves an administrative procedure that can be used to correct minor errors without the need for new legislation to fix the error, and correction slips are a matter between the Welsh Government and the statutory instruments registrar.

Finally, there are some standard coronavirus-related merits points.

Thank you, Gareth. And, of course, these measures are now in operation, as well. So, with the acceptance of the Government of the correction of the data aspect and their acknowledgment that those two points in particular could have been clearer in the original regulation brought forward, are we happy with that? Any comments? No, we're happy. Okay. Thank you very much. Thank you, Gareth.

On to, then, item 4.4, SL(6)160, the Milk and Milk Products (Pupils in Educational Establishments) Aid Applications (Wales) Regulations 2022. Now, these regulations amend provisions relating to documentary evidence supporting applications for aid under the school milk scheme. As a result of these amendments, applicants to the school milk scheme must only hold such documentary evidence available for the relevant authority. There is one technical point, Gareth, you've identified for reporting.

When making regulations like these, retained EU law requires open and transparent public consultation. However, the explanatory memorandum says there was no public consultation; there was just limited stakeholder engagement. The Welsh Government provided a helpful response this morning. The response considers that, in the case of these particular regulations, direct consultation with representative bodies was the most effective and proportionate way of consulting, and that was sufficient. The Welsh Government also points out that these regulations do not have a direct impact on food safety, and that influences the kind of consultation that is required. Therefore, the Welsh Government is content that it has consulted appropriately.

Thank you for that. Colleagues, can I ask are you happy with that response and the points? Thank you very much for that. We are.

On to, then, item 4.5, which is SL(6)162, the Health Protection (Coronavirus, Public Health Information to Travellers and Operator Liability) (Wales) (Amendment) Regulations 2022. So, these regulations, as we're familiar with, amend previous regulations, and, in this case, the Health Protection (Coronavirus, Public Health Information for Persons Travelling to Wales etc.) Regulations 2020, and the Health Protection (Coronavirus, International Travel, Pre-Departure Testing and Operator Liability) (Wales) (Amendment) Regulations 2021, by imposing requirements on persons operating international passenger services arriving into Wales from outside the common travel area. Gareth, you've identified a technical and three merits points for reporting.

The technical point identifies a minor inconsistency in the way that defined terms are referred to. The Welsh Government responded this morning, accepting the error, which it will seek to correct by a correction slip, and there are some standard coronavirus-related merits points.

Thank you very much, Gareth. Are we content with those action points there, and the reporting points? Thank you. Okay. Thank you, Gareth, very much.

That brings us on, then, to item 4.6, which is an affirmative resolution instrument, SL(6)155, the Local Elections (Miscellaneous and Consequential Amendments) (Wales) Regulations 2022. These make miscellaneous and consequential amendments to the Local Elections (Principal Areas) (Wales) Rules 2021, the Local Elections (Communities) Rules 2021, and various other pieces of local elections legislation, including adding to the list of grounds on which the returning officer may hold a nomination paper to be invalid and amending the rule governing procedure on the close of poll—this will be of great interest to all of us as elected Members, I'm sure; we don't have to declare interests on this, don't worry. So, we've identified—our lawyers have identified—one merits point for reporting on this.

Only to note that the explanations set out in both the explanatory memorandum and the explanatory note are extremely clear and helpful. These are difficult regulations to scrutinise—they are detailed and intricate—and having those explanations really helps provide context, which, in turn, really helps with scrutinising the regulations.

Thank you, Gareth. I think people watching in on this will note that, in our role as critical friend as legislation and regulations pass through, we don't just pick up when things are poor; we pick up when things are good as well and remark on those to encourage that good practice. Thank you, Gareth.

If Members are happy then with that, we'll go on to item 4.7. It's a made affirmative resolution instrument, SL(6)161, the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) (Amendment) (No. 5) Regulations 2022. And we have a draft report and a letter from 15 February relating to this. These regulations amend the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) Regulations 2020 to remove the requirement to restrict entry in certain premises to vaccinated individuals or those who have a negative test or are medically exempt, as shown on a COVID pass. They also amend the self-isolation rules so that anyone identified in Wales as a close contact is exempt from the legal requirement to self-isolate for 10 days if they have been fully vaccinated with an approved vaccine. And, Gareth, you've identified two merits points for reporting here.

They are just standard coronavirus-related merits points.

Thank you very much. I think we'll be happy to note those points.

And then we move on to item No. 5, which is instruments that raise no reporting issues under Standing Order 21.7. The first of these is a draft negative resolution instrument, SL(6)153, which is on the code of practice on the exercise of social services functions in relation to Part 4 (direct payments and choice of accommodation) and Part 5 (charging and financial assessment) of the Social Services and Well-being (Wales) Act 2014. The revised code is to be issued under the Social Services and Well-being (Wales) Act 2014 and it's been amended to reflect a number of compensation schemes by making an addition to the lists of forms of capital and income that should be fully disregarded in the financial assessment for charging for all forms of social care and support.

So, just for Members to note, the report will be amended before it's laid to reflect that this instrument is subject to the draft negative procedure and not the made negative procedure as noted in the draft report. But, Gareth, beyond that, that are no points for reporting. No. Okay. Are we content with that? We are. Thank you.

We'll go on to item No. 6, instruments that do raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 that we have previously considered. The first of these is item 6.1, which is SL(6)148, the Education (Student Finance) (Miscellaneous Amendments) (Wales) Regulations 2022, which we considered at our meeting on 14 February; we laid our report the very next day. So, I'd invite Members to note the Welsh Government report that has been since received. Do we have any comments from our lawyers on this or—?

Nothing further to raise. The Government accepts two of the errors raised by the committee. It also clarifies its policy on the Afghan citizens resettlement scheme. And as regards the missing amendment, the Welsh Government says that it had actually already made the necessary changes.

Thank you for that. Any comments from Members, or are we happy to note that? We're happy to note. Thank you very much. Thank you, Gareth.

That takes us on, then, to item No. 7—again, a familiar one for those who follow us either on our Senedd.tv or in the transcripts of this meeting. We turn our attention to the inter-institutional relations agreement, and the first aspect of this we're going to look at is item 7.1, which is correspondence from the Minister for Climate Change in respect of the Phytosanitary Conditions (Amendment) Regulations 2022. Now, this is further to the Minister's letter to us of 4 February. Members are asked to note the letter from the Minister for Climate Change, confirming she has now given consent to the UK Government to make the Phytosanitary Conditions (Amendment) Regulations 2022. Members may also wish to note, by the way, that the Minister states that she considers that legislating separately for Wales in this matter would be, and I quote,

'neither the most appropriate way to give effect to the necessary changes nor a prudent use of Welsh Government resources given other important priorities.'

So, it's just to note that and to draw that to your attention. Are we happy with that, or any comments there? All fine. That's great. Thank you. On to item 7.2—again to note the correspondence from the Counsel General and Minister for the Constitution in respect of the inter-ministerial group for elections and registration, a meeting of which will take place on 8 March. So, I'm assuming we're just happy to note that for now. We are.

Which takes us on to item 7.3, and, again, just to note for now the letter from the Minister for Climate Change, which is an overview of the virtual meeting between the UK and devolved administrations regarding COP26 and the future COP27 that took place on 9 February. I think we're happy to note that.

And then we have some papers to note under item 8. I'll go through these fairly quickly, and Members can shout out there if there's anything they want to pick up at this rather than when we get into private. So, first of all, we have correspondence from the Minister for Education and Welsh Language to the Economy, Trade, and Rural Affairs Committee in respect of the Welsh Government response to the committee's report on the supplementary legislative consent memorandum, memorandum No. 2, on the Professional Qualifications Bill. Are we happy to note that for now? We are.

Item 8.2, correspondence from the Minister for Social Justice in response to our committee's report on the legislative consent memorandum on the Nationality and Borders Bill. If we're happy to note that for now, and then we'll move on to item 8.3. We have, again, to note correspondence from the Minister for Health and Social Services in response to our report on the legislative consent memorandum on the Health and Care Bill. Just to draw to Members' attention as well the letter sent to the Minister last week, where we sought urgent clarification on one matter raised in her response to the committee's report. We haven't had the response yet; we might want to come back to this in private session. Okay. But we'll note that. We also then have for noting a written statement from the First Minister, informing the Senedd that the seventh annual report on the Welsh Government's implementation of Law Commission proposals was laid before the Senedd on 15 February 2022. And again, we'll note that.

We also have, under 8.5, to note the letter from the Counsel General and Minister for the Constitution responding to the committee's report on the LCM on the Elections Bill, which we note. We have correspondence from the Scottish Parliament's Delegated Powers and Law Reform Committee, informing the committee that it has now published its report on its inquiry into the use of the made affirmative procedure during the coronavirus pandemic, which, of course, is of interest to us, but we're happy to note that for now.

And item 8.7, correspondence to note from the Children, Young People, and Education Committee, informing our committee of its findings from a review of what its sixth Senedd priorities should be, and identifying opportunities for joint working with other committees. Happy to note.

Under item 8.8, if we note the letter from the Minister for Social Justice informing the committee that a further supplementary LCM, memorandum No. 5, on the Police, Crime, Sentencing and Courts Bill is expected to be laid imminently. I wonder, Gareth: do we have any update at the moment on whether that has been laid?

Can I provide an update to Members in the private session? A document has been laid, but I'd just like to double check that it is the correct one.

That's brilliant. Thank you, Gareth. We'll return to that in private, then, if Members are happy.

In which case, that brings us now to the motion under item No. 9: under Standing Order 17.42 to resolve to exclude the public for the remainder of the meeting, so we can continue our business in private. Are we happy to move into private, colleagues? We are. We'll do so, and we'll wait for the all clear, then, from our clerking team that we are in private.