Legislation, Justice and Constitution Committee

We come on to the evidence session with the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs. Would you like to—? I will welcome you, but can you introduce—or can they introduce themselves—your officials?

Yes, indeed. Thank you, Chair. Could I turn to Rebecca first of all? Rebecca.

Yes. Rebecca Ryan from legal services in the Welsh Government.

And Chris.

Chris Jones, deputy director for mining legacy and reservoir safety.

Thank you very much. If I move on to the first question, are you satisfied that the Bill is within the Senedd's legislative competence?

Yes, I am, Chair. Subject to the Minister of the Crown consent and the King's and the Prince's consent being received for a small number of provisions, I am confident that this falls within legislative competence.

Thank you. Why haven’t you consulted on the proposals contained in this Bill in their current form?

Well, we believe that there has been extensive consultation on the proposals. There are differences, of course, between what was set out in the White Paper and what is now contained in the Bill, but that would be expected, Chair, within the course of any Bill drafting and policy development process. Some of the changes now reflected within this are following the consideration within the White Paper responses, and others came about, I have to say, due to the more detailed testing that has been done with the proposals during the Bill development process. But this wouldn't be unusual, that there were changes that had come forward by this stage.

Okay. Diolch yn fawr. Adam.

Good afternoon. I would just like to ask a few questions relating to the use of guidance in the Bill. According to the Bill in its current form, much of the detail on the new regime will be in guidance. You've previously said that, in your opinion, that would allow for greater flexibility and would allow technical information to be updated with time. How many pieces of guidance—? What is the scope of the guidance that you're planning to publish, and is it one set of guidance that you're intending to publish?

Thank you, Adam. I'm sorry, it's too loud.

We're going to be developing a suite of guidance, some of which, by the way, is under development already, just to be clear, so that we're not delaying on this. Within that guidance, we will have things such as the guidance around the preliminary and the full assessments, which are described on the face of the Bill, monitoring inspections, compensation, cost recovery and charging, management plans themselves, categorisation of tips and issuing notices. But just to say one other thing as well, we'll also be developing guidance for Planning and Environment Decisions Wales, which is intended to be the appointed person legally described under the Bill, so that guidance will also relate to things such as appeals, including the determination of applications under sections 36 and 41.

Do you have a timetable that you can share with the committee for the publication of these different pieces of guidance?

Indeed. I might turn to Chris in a moment, because some of these are already under development—well under development, actually. Others will come forward in our rolling programme. Chris, I described the ones that were currently in place—some of those are already well in development.

Yes. We've issued five sets of high-level guidance to the Climate Change, Environment and Infrastructure Committee, which outline our intentions in those regards. We can also send them to you as well for information. They just give a rough idea of what we intend to do, before we then go to consult with a wider group of stakeholders.

Adam, it might be helpful to say that, when we've already shared outline guidance, it's important to say, Adam and Chair, that it is outline guidance, not the final guidance. But it gives a very good indication of the direction of travel here on monitoring, appeals, compensation, cost recovery and management plans. We've shared those with the Climate Change, Environment and Infrastructure Committee; we can happily share them with you as well. And as we bring forward others, we can share those as well. Our intention is to try and be very transparent here, so that we can show a maximum amount of the guidance. Then all guidance will be finalised by the time the authority is established then on 1 April 2027. But, as I say, we're bringing forward that guidance as rapidly as we can in draft form, so that people can see it.

Mae adran 69(1) o'r Bil yn dweud y bydd yn rhaid i'r awdurdod rhoi sylw i'r canllawiau yma. Yn Saesneg, 'due regard' ydy'r term, sy'n gyfarwydd i ni, wrth gwrs, oherwydd mae'n cael ei ddefnyddio mewn Biliau eraill. Ond beth fydd e'n ei olygu'n ymarferol yn yr achos yma, ac, yn benodol, i ba raddau y gall yr awdurdod, yn y diwedd, roi sylw, ond anwybyddu'r hyn sy'n cael ei gynnwys yn y canllawiau?

Both you and I and committee members will be very clear with what that terminology, ‘having regard’, means in legal terms. Having regard to guidance means that that body to whom it is addressed must take it into account when exercising its functions. So, for example, in carrying out the duty to monitor registered tips, the authority as defined within the Bill must take into account the relevant guidance, and should reflect this within its actions, such as, for example, using up-to-date inspection techniques.

But let me be really crystal clear, because it goes, I think, to the nub of your question. The authority can't simply ignore guidance that is given to it by Welsh Ministers. What this means in practice is that the authority must take the guidance into account, and if it deviates from that guidance, it'll have to justify that by providing the reasons for doing it. If challenged, the body should be able to demonstrate that it has considered and it has had regard to that relevant guidance, for example, by specifically referencing it directly in the reason for any decision. So, I hope that gives you some certainty around our intention there of having the regard to guidance. But I think it's quite well understood, the terminology.

Are there other options that can be used in guidance? So, you've explained the framework for having regard, but had you considered a different kind of framework for some of the guidance, where there's more risk, perhaps, in giving discretion to the authority? That is, that they'd have to follow it more directly, the guidance that you set, for example, in the context of emergency preparedness.

There are always things that you take into account in the development of a Bill—what is the appropriate response? But bearing in mind that this guidance could be reflective of, for example, that flexibility to change things, such as changes from advances in technology—it could be with monitoring, for example, on the ground, and we know that that's developing at pace, or it could be to do with the approach to assessment, and this could change—there's an element here of actually saying that, on judgment, guidance is the best place to actually do that.

In terms of emergency provisions, which are quite robust within the Bill, I don't know, Chris or Rebecca, if you want to add anything to that.

Only to say it's a fine balance, and one of the things that we're acutely aware of is the fact that everything is changing at such pace in this. This is an area that is new, it's an area where expertise is developing. We are probably considered to be a world leader in this area, or will be by the time this Bill is done. So the pace of change, the pace of climate change, means that we have to be really aware that we need to react very, very quickly to whatever happens, and I think having considered those issues, it was one of the reasons we decided that guidance may be more appropriate in this instance.

What I'm trying to refer to, perhaps, is a situation where you would give discretion, but it would be discretion to upgrade the level of security or the ability of the authority to meet the aims of the authority and the Bill, which would be to reduce the risk to the public. The guidance, of course, has been written at some point with some sort of technology, but, that is, you cannot go below that, but you could upgrade it. Did that kind of thing strike you as a possibility?

It's an interesting point, I think, recognising two things here, one thing in terms of the guidance, one aspect in terms of the remediation authority. When the guidance is brought forward, the strength of putting it within guidance is twofold. One, that it draws on the experience of the stakeholders out there, so, Natural Resources Wales, the Mining Remediation Authority, local authorities, and the expertise that undoubtedly will develop over time, and that means that the guidance may change over time as well, and may strengthen and may alter to reflect that knowledge. And that, I think, was really pertinent to the reason that we think that guidance is the right way forward. You can do it in other ways; you could do it in a way that attempted to futureproof it but described it in a very particular way, and elevated it in some way into more stringent regulations or even, to some extent, on the face of the Bill. But the problem with that is even though there's much work already going on with the Mining Remediation Authority, and there's an immense amount of capacity—. Chris rightly said our intention here is that this will be world leading. That expertise will develop and will inform the guidance going forward. So, we feel that the balance is right here in using the guidance to do this, as the expertise of this body of knowledge and the engagement with stakeholders goes forward. But I appreciate that it's a fine judgment as to where this should lie.

And in terms of public confidence in this framework, do you have any concerns that the guidance could be too open to interpretation and erode public confidence in some way?

No, I don't. I go back to the discussion that we've just had on the fact that the guidance will not be picked from the sky; this will be really developed by engagement with stakeholders, by knowledge of what's happened on the ground, by the fact that the Mining Remediation Authority is not coming to this with a blank sheet—it's already out there on the ground doing a lot of the walking of these tips, engaging with communities, engaging with stakeholders. So, it will be very well-developed expert guidance that will be brought forward, and that should give assurance to communities, but also in terms of the role of Planning and Environment Decisions Wales as well—the explanation as to how the authority and PEDW will carry out their respective roles within the guidance, giving that level of detail around what will be expected, with how this will work in practice on the ground laid out very clearly in the guidance.

I think that, actually, will be an asset to communities, in that being able to turn to the guidance, which is up to date, is expert, is driven by that expertise on the ground in engagement with stakeholders, will give them the confidence that this has been very well worked. It's not a moment in time where we fix this in aspic and say, 'That's it'; this is a body of work that we can update as technology changes, as assessment changes, and it'll always be pushing forward—that sort of proactive approach.

Okay, thank you.

Alun.

But putting more of this in secondary legislation, for example using statutory instruments, would provide the public with more certainty of what you've just said, because you've made the commitment—and I don't doubt your personal commitment on this at all, or the Government's commitment on this. You and I both stood in Cwmtillery in the morning after the landslip there in December, or late November, in fact, and it was a deeply upsetting experience and you could see the impact of it. So, I don't have any doubt about your commitment to this and to resolving these issues. But your mandate runs out next year and there'll be a new Government in place, and what I want to do is to ensure we have legislation in place that is able to deliver for my constituents, for example, using Cwmtillery as the example there, even where there isn't a Minister with the personal commitment that you have.

And there are a couple of areas in the Bill where an element of tweaking or strengthening might help that in terms of the assessments, for example. I think it's in chapter 2, the assessment of disused tips and the meaning of a preliminary assessment and additional assessments and the meaning of a full assessment. There's a reasonable amount of detail there in terms of what is on the face of the Bill, but you do have space there as well to put in statutory instruments that could outline, so that people know exactly what an assessment looks like, whether it's a preliminary assessment or a full assessment of those tips.

I mentioned already, Alun—and it is, by the way, a valid point, this judgment as to what goes on the face of the Bill or what goes into guidance or regulation—in response to a previous answer, that much of the work on this is already under way. So, there should be clarity that we can give at a fairly early-doors moment here. Some of them already we've shared with the Climate Change, Environment and Infrastructure Committee, but I just want to emphasise again that they are drafts, so they can still be worked upon, but it gives a pretty good idea of where we're heading.

The same could apply in terms of assessments, as we bring forward the work on that, for people to see it, for people to improve it. Now, are there elements that could go on the face of the Bill? These are always judgments we have to make, but in those areas I described, the pieces of guidance we're bringing forward, our judgment is that these will change over time, they will strengthen over time, they will be adapted to climate change over time, and new technologies over time. The piece on assessment is a really interesting one, because something that I've picked up is there's something of, maybe, a misunderstanding with some people out there that none of this work is going on at the moment on assessment. But, actually, the body of expertise is already growing, because those from the Mining Remediation Authority are out now, literally walking the tips and doing the work and doing the assessments. So, it wouldn't be inconceivable; we can bring forward some really clear guidance in a very good timescale. But I do take the point you're making, that this Minister won't be here forever and a day; none of us have a God-given right to be sitting in the privilege of this post forever and a day.

What I do take some comfort from is, (1), the establishment of the Mining Remediation Authority now; it's getting on with the work, and the work that we are doing to take this Bill forward. Secondly, the incredible cross-party support to get this up and in place before we end this Senedd, so we will put the foundations in place to drive this forward. The guidance that is already being worked on as well—all of that suggests to me that it would be highly unlikely—unforeseeable, I would say, at this moment in time—that a future Government of any colour, this Minister or not, would actually walk back on this. Because people out there surely understand the imperative, for the people of Cwmtillery and wider Wales, to get on with this piece of work and keep it going, and to put in place not just the authority, but the quantum of funding we need to do that as well.

So, I understand what you're saying. This Minister will not always be here. You will not always be in that position, turning thumbscrews on the Minister either. But I can't foresee a situation where a future Government would walk away from this piece of work that we are invested in, and so many of the pieces we're putting in place are going to be so well under way.

I would certainly hope that you're correct, Minister. But if we were to have more elements of statutory instruments and secondary legislation in place, which set out what an assessment would look like—for example, we're considering what the ballot paper will look like for next year's election at the moment, as part of a conduct Order, so people can have a real idea of what these things look like—that would enable me, for example, to take that to the people I represent in Cwmtillery to say, 'This is the sort of assessment that's going to take place; this is what it will look like.' We can then have that conversation with the people affected, and then we can bring their views back here, to scrutinise the Welsh Government on what it is proposing. So, it isn't just a matter of the willingness of Government—and I tend to accept the points that you make on that—it's part of how our democracy works, and the linkage between the representation of people, in terms of people who are living with these tips, and then how their cases and how their concerns can be brought directly to yourself as a Minister.

Well, look, Alun, we're always open to—. This is the benefit of the scrutiny of the legislation as it passes through this place, both here and on the CCEI committee. We're always interested in hearing what committees say, and looking at the same sort of judgment calls that we've made, as we develop this guidance—I think four pieces, or five of which are currently in development already—and to say to us, 'Well, we think you've got the balance—. There's a judgment that could be made another way.' Tell us what you think. We never have a closed mind on this. We do think there is a real benefit here in maintaining some of that ability, through guidance, to develop and strengthen and augment what that guidance says, rather than return to, certainly, primary, or possibly, even, secondary regulation [correction: secondary legislation].

Bearing in mind the expertise—this is not a false ambition here, the work that we're doing—the authority that we vest this power in, will be world leading. And we know we have got other parts of the world that also have a legacy from coal mining and other forms of mining that are looking to us to see how we take this forward. Now, on that basis, giving them some of the ability, the flexibility, as they develop their expertise to strengthen guidance, I just say to the committee that I think that there is merit in that. But we are at speed developing guidance, and one of the things we can commit to is sharing this with you as we bring it forward, which is a useful way to give that clarity.

I don't disagree with you about the point that you make about primary legislation. I think that that is a very powerful point and it has been well made by yourself and the Welsh Government a number of times, and I accept that argument. It's where we have the guidance that is being developed within Government, and presumably by the authority in the future, and how that is implemented and delivered—I think the argument that I'm trying to put to you is that secondary legislation would provide a more powerful framework within which guidance can be issued and fill in the gaps that you've outlined, and to maintain the pace of technological change. I accept all of that, but if you had a framework of secondary legislation, which we could examine here and which constituents could examine as well, then you'd have a more powerful tool by which that guidance delivers not simply the means by which we deal with these tips, but also then provides reassurance for people living in their shadows.

Listen, I'm certainly keen to make sure that we can give as much clarity to those communities, not just over the ambition but over what this would practically deliver. Now, I hear what you're saying; the judgment that we have come to, based on developing the expertise within the authority, has brought us to the conclusion that, on balance, we would want that to be developed within guidance. But I come back to the point that I made earlier: that guidance doesn't float up there in the clouds; as you and I know, when we give this the power that we do, that will have to be referred to in decisions to follow that guidance or not to follow that guidance. But I hear what you're saying. I'm interested in what this committee and the CCEI committee will bring forward as suggestions and proposals. We're not of a totally closed mind on this, it's just that, on balance, we've come to this conclusion.

Thank you.

Okay. Laura.

Diolch, Chair. Prynhawn da, Cabinet Secretary. Talking about clarity, if I could bring you to the definitions, and just to say that a reader of this Bill has to read and understand at least three pieces of legislation to establish what a disused tip is. Can you explain why you consider that this definition is sufficiently accessible, because conventionally, of course, it would be on the face of the Bill? Thank you.

Yes, I'm happy to do that. Thank you, Laura. So, the definition of 'tip' itself, the tip, is clear and simple to understand. It's on the face of the Bill in section 81(1). But the definition of 'disused tip' needs to refer to the quarries regulations because it's in a very different context. So, the Quarries Regulations 1999 and the Mines Regulations 2014, because those regimes are outside the scope of the Bill. So, what we're trying to do here, the effect of this, is to ensure that the Bill doesn't apply to active tips that are associated with operational mines or quarries. So, the definition recognises that legislative landscape and makes sure that the statute book works. We've also got that clarification, I hope, that is very clear there within the explanatory notes as well, explaining that context.

Diolch. Section 81(4) has a broad power that allows you to amend the definition of a disused tip, which is important to the application of the Bill. Why have you not included a duty to consult before potentially amending the definition?

Thanks, Laura. Even though there isn't a duty to consult on the face of the Bill, I can absolutely confirm that Welsh Government would consult before making regulations that would make such a significant change. It would be incumbent on the Government to consult, and I can say that absolutely clearly.

Diolch. What is the purpose of the provision included in section 81(5), which enables a tip of a prescribed description to not be treated as a disused tip when it otherwise would be? You say in the statement of policy intent that you decided not to put an appropriate definition on the face of the Bill for certain tips that will fall outside the definition of a used tip because it would lead to complexity and confusion, and risks striking the wrong balance. What do you mean by this, and why would it be different to including a definition in regulations?

Thanks, Laura. So, to be clear, section 81(5) of the Bill gives the Welsh Ministers this regulation power to set out certain descriptions of tips that would fall outside of the definition of a disused tip. So, it's either altogether or for certain provisions of the Bill within the regulations that are specified. So, this is in line with the Law Commission report. We considered in the White Paper whether separate definitions of 'tip' were required. We consulted on the possibility of including in the Bill a definition of, in effect, a de minimis tip to which the provisions of the Bill just would not apply. So, you could look this in terms of things such as gradient or tip height or volume or surface area, or even the material from which it is composed, or, indeed, a combination of all the above. So, in practical terms, regulations could provide, for example, that the authority's not under a duty to carry out the functions under Part 2 of the Bill in relation to disused tips where there is a negligible deposit of waste. So, that's the purpose of section 81(5).

Thank you for explaining that, Cabinet Secretary. Section 82 of the Bill defines when a threat to human welfare will exist. Sections 82(b) and (g) each include a reference to 'serious'. Why is the use of the word 'serious' necessary in this context, and does this create a problem, for example, where a possibility of human illness or injury exists but this is not serious? This would not constitute a threat to human welfare under the Bill. Diolch.

Thanks, Laura. This was raised as well, Chair, in the first evidence session where I appeared on this Bill in front of the Climate Change, Environment and Infrastructure Committee. We think this is important, to have 'serious' included within the definition of something that's being considered, for the following reasons: I'll confirm to you today, as I did to the CCEI committee, that the definition of a threat to human welfare includes where there is, for example, the possibility of serious human illness, serious damage to property, serious disruption to the supply of food, with 'serious' being the theme through that. Where there is a possibility of loss of human life, this will fall within the meaning of the threat to human welfare under the Bill. All the other events listed must be serious to fall within the definition in section 82. We take this, by the way, Chair, and Laura, as the ordinary meaning of the word 'serious', and we think it's very well understood. It's something that is significant, or it's dangerous because of the possibility of danger of risk. This qualification, we believe, is very important, because it allows the authority, as defined in the Bill, to make that judgment, considering all the circumstances.

It's worth also saying that, as a public body, the authority will be required to act in accordance with standard public law principles, ones such as 'fairly', 'reasonably', and so on when making a judgment as to what constitutes 'serious' in the context of the events in section 82. So, it's a very straightforward way, we believe, to say there is a threshold here. It's not things that are inconsequential or marginal; they need to be serious. If we didn't have a threshold, by the way, Laura, it's worth mentioning this could make the Bill unworkable, as it would remove any threshold within the definition. This would mean, for example, that virtually all disused tips would meet the criteria, meaning that the authority, for example, would have a duty to monitor virtually all disused tips, regardless of any threat or jeopardy, and they'd have to deploy their resources in that way. It would also mean that the authority could require or undertake operations in a much wider set of circumstances. So, we think this threshold is right and appropriate. It's understandable as well, because there is a clear, normal understanding of what 'serious' means, and we think this makes the Bill workable.

Diolch. That's very clear. Thank you for that comprehensive response. That's all from me. Thank you, Chair.

Diolch. Adam.

I want to ask questions about some specific sections. Section 2(1) of the Bill sets out the authority's main objective, namely to ensure that disused tips do not threaten human welfare. The word, 'ensure'—'sicrhau' in Welsh and 'ensure' in English—sounds like 100 per cent of instances. Does it mean a very high threshold, and why have you decided to use that particular term? Could you explain that to us, please?

Yes, indeed. It is a good question. Under section 2(1), we've got the main objective of the authority to ensure, sicrhau,

'disused tips do not threaten human welfare'.

Now, as an objective, this is something that the authority aims to achieve, to ensure that tips do not threaten human welfare, rather than, Adam, a cast-iron duty that it must achieve, because the difficulty there, the challenge, is how on earth do you absolutely, 110 per cent guarantee that? Can you put that duty on the authority to absolutely guarantee? You can absolutely put a duty on them to say they must aim to ensure that disused tips do not threaten human welfare, and they must do everything they can, then, to achieve that. So, the purpose of section 2 is to make clear on the face of the Bill what the authority is being established to do.

It's also about, at a general level, operating to influence judgments made by the authority about how it discharges the powers and duties that are conferred on it that it needs to carry out. So, it needs to have also the general objectives relating to the performance of its functions, which will be set out in the remit letter. So, we don't think this is untypical in the way that it's framed within the Bill, or unusual. I hope that answers your query there.

The next question takes us on a similar route. In section 2(2), in describing the requirement on the authority, you've used the term to

'promote high standards in relation to the management of...tips'

in the context of their stability. Why have you used the word 'promote' and what is the meaning of 'high standards' in this context? How would one measure that?

I think promotion here is really important, because it gives an element of proactivity, as well, to the approach of the authority. I would expect the authority to constantly follow best practice and relevant guidance in its work, keeping up to date, implementing any developments, as we've mentioned before, in recent technology or advancement in knowledge. But I would also expect them to deliver their duties and discharge their powers in terms of disused tips in a very transparent way, to promote it in that way that garners public trust. So, as part of this, we'll be expecting the authority to be quite proactive in helping and advising landowners, working with, collaborating with landowners on management of those tips. So, that promotion sets a direction for the authority to be on the front foot with that. We also expect the authority to promote high standards by employing those well-qualified individuals, ensuring that continuous training is undertaken, designing their operation on the latest and most appropriate equipment and knowledge, so constantly demonstrating that it's meeting this duty through its actions, in the way it carries out assessments, as Alun was referring to, the way it approaches its operations, and so promoting those high standards. It will have to, of course, just to clarify for you, Adam, and the committee, say within its annual report each year how it has carried out these functions, how it has satisfied that duty to actually promote high standards as well within its annual report.

Just finally, it's worth stressing the approach here of working in this collaborative and supportive way with others, including landowners and contractors when they're undertaking work. So, this promotion of best standards is also to do with their way of working—that they actually engage with those landowners and with other bodies there to promote high standards. But, as I say, they'll need to report on this duty, as well, and I think that front-foot element of this is very important.

May I turn now to section 10, which provides a duty to monitor registered tips, and that takes us back to the questions that Alun Davies raised about whether there should be some matters either on the face of the Bill or at least in subordinate legislation, rather than in guidance, in terms of monitoring? In the White Paper, it is recognised that having a monitoring regime that engenders public confidence is crucially important in this regard. So, why not have at least a few matters related to monitoring incorporated in subordinate legislation—for example, the frequency of monitoring for the different categories of risk? Shouldn't that be in subordinate legislation, rather than left to guidance?

Well, I can, if it is of help to the committee—. You are right, we're coming back to the earlier discussion of what goes where in terms of the Bill and what goes within guidance. This is one of the areas that we've already developed the draft guidance on, and, if it is of help to the committee, we can share that with you so that you can have a look at it. I think that will help give clarity. But our judgment is, as of this moment, that, on this, as with some other areas, maintaining that flexibility by keeping it within that guidance that the authority will have to have regard to, is the right way to do it. But we can share that guidance with you and see what you think, as a committee.

Yes, it would be useful for us to see that, certainly. May I ask, now even, for you to share with us whether those guidelines will—I take it that the guidelines will—set out the frequency of the monitoring? Will the guidance also detail the kind of expertise that should exist or be part of a monitoring inquiry—the kind of technical expertise that should be held by those undertaking those inquiries? Will you detail, at all—

On the first point, yes.

Yes, okay.

On the first point, yes. On the second, I'm going to turn to Chris. But, curiously, this is exactly why our argument around the flexibility that comes through having guidance that needs then to be given regard to by the authority is so important, because we can see that this will develop over time. But, Chris, on the second point, what's within the guidance that we've shared already?

So, that sort of thing isn't contained in the guidance as it is at the moment, and that's mainly because this is a very fast developing area. These are areas that we're—. Put it this way, we've got capacity and capability problems in Wales at the current time, and so we need to develop the capacity and capability to be able to deal with this in the future. So, the frequency is set out very clearly in the guidance. For the technical aspects of it, we'll want to work with experts who are on the ground now in order to develop that to make sure it's right.

So, is the argument that, because the monitoring technology is evolving, such as drones, LiDAR, remote monitoring and remote sensing, and so on, the idea of a quarterly investigation perhaps is going to become dated, because you'll be monitoring continuously, perhaps? I can understand that, in part, but shouldn't you, in subordinate legislation, at least set out that there would be a monitoring report? Perhaps the data would be gathered constantly, but there should at least be, say, a monitoring assessment undertaken every few months, or quarterly for some categories, and so on. Don't you see that there is an argument for that to be done, at least?

It's worth saying that it is partly to do with that. It's significantly to do with that changing technology and the speed at which technology is adapting, and also the adaptation to the changes of climate change as well, but it's also to do with the expertise that is developing rapidly. So, as I've said before, we're not starting from a blank sheet. The organisations are out there on the ground doing this work already; they're learning a lot already. The question is whether we bolt something down that is restrictive within the legislation, or we give that flexibility, recognising that there are quantum leaps going forward, both in technology and expertise around this, and give them the ability, then, to strengthen the guidance and adapt the guidance. But, in saying all of that, I do understand the pushback from the committee to say, 'Well, are there elements of this that can be described higher up in the legislative order?' Genuinely, we'd be interested in your thoughts on that, but what we want to avoid strenuously, Adam, is something that is constraining on the ability of that authority, which we see will be developing rapidly in its capacity and its expertise, and we'll want to revisit this.

Before I conclude and pass over to other Members, do you see the argument in favour of placing, in subordinate legislation at least, provisions related to those parts of the Bill that cover—I don't know the exact wording—imminent threats, that action should be taken in an emergency, if an assessment means that action should be taken as a matter of urgency? With that kind of thing, which is in a specific category of its own in terms of public interest, do you see that there are some things that shouldn't be left to discretion at all, because they are so serious and public trust is so important related to them?

Well, as you know, within the Bill we are bringing forward powers to actually address those urgent, emergency situations that go above and beyond the regular powers that the authority has within the Bill. The ability to give communities that confidence that, in an emergency situation, there are powers within here that the authority can, with landowners and others, step in and take immediate action. But, in terms of how you deploy that within the pre-assessments and the actual assessments, Chris, I wonder—because this is a piece of work that's ongoing now—.

Part of the issue with the previous legislation was that it was definitive and it restricted the ability of authorities to be able to act at the right time. I think what we're trying to do here is to make sure that the authority has the ability to react at the right time, before a tip has slipped, and I think that was the main issue. I think, if we define it too closely in the Bill and we get it wrong, the risk is that we restrict the ability of this authority to be able to react. So, I think there is a fine balance and there is a need to make sure we are getting it right first time, especially if it's on the face of the Bill.

It's worth saying as well, Adam, that the way we've come to this conclusion, particularly in terms of assessments, is based on the responses that we had to the consultation as well, which was recognising the developing expertise that we have—there's an existing expertise already, I have to say, but it's developing—and that that should be able to—. There was a feeling that that need for flexibility should be somehow here within the way we approach this and take it forward. So, it does align with the consultation responses made to Welsh Government in terms of futureproofing this regime so we don't inadvertently constrain ourselves from the advances in knowledge and technology and so on going forward. But there are significant powers within here in terms of dealing with the urgent and the emergencies that should give real reassurance that we're changing the legal regime here in favour of the welfare and safety of communities.

But is the threshold or the duty on the authority to take action in a period of emergency left for them to define when an emergency arises in guidance, or is that defined sufficiently clearly in the legislation or in subordinate legislation?

We believe it's clear on the face of the Bill, without a doubt. The clarity of the powers of entry in an emergency situation, the ability to take action in that emergency, with the landowner, but if the landowner were not to be available, would not want to collaborate on the necessary action, the ability of the authority then to actually access—with the necessary rights of appeal as well, but to access—and take those necessary remedial messages on site to make that safe, are within the Bill, on the face of the Bill already. I think what we're talking about is the difference between that and then the guidance around assessments, pre-assessments and how that would normally operate, and recognising, again, and I come back to this point, because it is certainly something that we've picked up a little bit, the feeling that we're not doing any of this yet. Actually, the Mining Remediation Authority is out there doing this right now, and is gathering this experience and this knowledge and expertise. So, by the time we have, if we have, Royal Assent for this and the authority is established, there will be a body of knowledge here that is substantial. If we give them the ability then to work with the guidance, amend the guidance as they go forward, as they develop their expertise, I think it will be a strength for the Bill, not a weakness, that futureproofing. FootnoteLink

Okay. Diolch.

Diolch. Alun.

I'm terrified, Minister, every time Governments tell me that they need the power to make changes that we can't foresee because technological change is moving so quickly that it's impossible to legislate effectively to provide safeguards. What you've just told this committee is almost identical to what Kim Howells told a legislation committee in Westminster when he was establishing Ofcom: things are moving so quickly we can't possibly legislate to provide for safeguards for the use of Executive power. And the consequence of that, as we know, is to empower the Executive and to empower the authority, to empower Government, and to disempower people and the Parliament. And that's the consequence, the inevitable consequence, of handing over power to either this authority or to the Welsh Government without the necessary safeguards in place for the exercise of that power. And I've said before, I don't believe that this authority or this Minister would be in any way seeking to avoid the consequences of how it exercises such powers. But there must be tramlines and there must be safeguards and there must be structures and frameworks that allow the people affected to have a say about the decisions of the authority, and there must be a means by which parliamentarians can exercise supervision and control over the decisions and the way in which the authority and the Welsh Government operate.

We've had a conversation over the assessments, and that was pursued by Adam, but also the Welsh Government's taking decisions over issues like management plans of category 1 and 2, which is different to what it said before. Now, I believed what you were saying when you were publishing the White Paper. I accepted what you were saying when you were writing to the Law Commission on these matters. But you've changed your mind, you've taken different decisions, potentially for some very good reasons. But how do we therefore exercise control over future decisions and future changes of mind?

It's a fair point. I just want to re-emphasise here, in terms of the management plans, which are going to be absolutely crucial, integral to this new system—

So, where are they?

The draft outline guidance that we've made available to the Climate Change, Environment and Infrastructure Committee, and we'll very happily share with you as well, makes it very clear that we expect, Welsh Government Ministers expect, the authority to produce these management plans for the highest risk category of tips, which will become categories 1 and 2 as described in the Bill, but also to consider on a case-by-case basis whether a management plan is appropriate for the lower rated category tips as well. So, the authority is going to have to have regard to the relevant guidance; it'll clearly state that expectation that the authority produce management plans for those tips there. We simply can't envisage a situation where the authority would not produce a management plan.

So, your explanation is ‘trust me’.

And trust what's on the face of the Bill in establishing and the purposes behind this authority.

No, no. I'm not having that. It isn't on the face of the Bill; that's the issue that I'm trying to make. Your argument is, basically, 'Trust me, I'm a good guy', which I accept, by the way; I think it's a—. But I'm worried about who comes after you.

Well, I think we have described adequately on the face of the Bill the powers and the duties of the authority and what it's expected to do in some of the earlier discussion that we've had in relation to it—what we expect this authority to do. I'd find it hard, genuinely, to envisage a situation where the authority would not, for example, carry out assessments, would not produce management plans, would roll back, in the light of not just what's on the face of the Bill but ministerial statements as well, the guidance that will follow, and, frankly, this committee and others like the Climate Change, Environment and Infrastructure Committee turning the thumb screws on it.

Absolutely, and I know time is moving on, but, if you are saying that you can't conceive of a situation whereby management plans for category 1 and 2 wouldn't be pursued, why only put the expectation in guidance? Doesn't that reinforce the power of guidance that I've been making? And the problem with that power is that I can't challenge it on behalf of the people of Cwmtillery, and the people of Cwmtillery can't influence it because there's no parliamentary accountability for it, and there's no parliamentary process that you will have to follow in order to produce that guidance. So, this takes power from the people of Cwmtillery, from their representative here in this place, gives it to yourself as a Minister and to the authority, and it disempowers us from actually influencing and shaping the decisions that you take.

But you would want the authority, with the expertise it develops, not only to bring forward those management plans, but for those management plans to be designed in line with the expertise and the knowledge that they have had and the assessments that they have done of those tips, and the work they've done with landowners and others. So, it's not an element of blind trust here; it's an element of saying, 'We're establishing an authority to do a piece of work', and having the confidence in that authority, rather than in me as a lay person Minister, to bring forward the proposals of how that management plan should look.

I don't disagree with that, and I don't disagree with your description of the management plans themselves. The point is different, isn't it? It's about the structure and the framework within which those plans exist, and the status of those plans. And I'm arguing for a more formal status and a process that provides some more democratic accountability for both the Minister, the authority and the plans themselves and the actions taken then, so that there's more democracy hard-wired into it, there's more accountability, and the people—we talk about Cwmtillery, but it could be anywhere—are able to have a greater voice in shaping those plans.

So, in the—. It's an interesting dialogue here, at the moment, but, in that situation, if the authority were to bring forward a very well-worked plan for the good people of Cwmtillery or the other category 1 and 2, as they will then become, tips, what would be the mechanism that you would see? Do we have confidence in the authority to say, 'That's their work, that's their job to bring that forward'? What's the democratic mechanism you're looking at?

You could create a number of different mechanisms, couldn't you? You could create the framework in secondary legislation as to what a management plan would look like, what the expectations are. You can do that within secondary legislation that you would have to bring then to this place to enact, so that we could put that forward through whether it's the affirmative or superaffirmative process to enable accountability for that. That would enable me, in the time available, to speak with people in Cwmtillery, to talk to them about what their expectations are. And it would mean that you would have to come here to the Senedd, to this Parliament, to seek consent, if you like, for that to be enacted. I think that would be a more powerful regime for the Government, and the authority as well, as it happens.

We're always listening. We're always listening to the committees.

In that case, I will leave it there.

We will share with you the management plan and the guidance that we've worked up already to see what you think of it, to see if that helps at all, but we're always interested in hearing what the committee says.

I'm content with that.

Thank you. Laura.

Thank you, Chair. That was an interesting discussion. Section 38 places a requirement on Welsh Ministers to make regulations about the procedure to be followed in determining appeals against a notice requiring an owner of land to carry out operations. Did you consider including this procedure on the face of the Bill? Diolch.

Yes. Laura, during the course of the development of the Bill, we looked at different options. We believe it's appropriate that these matters be prescribed by regulations rather than on the face of the Bill, and I'll explain briefly why. One of the benefits of setting these matters out in regulations is that, if practical experience shows, then, that certain elements of the procedure need to be adjusted, it's going to be quicker and simpler to make these amendments by amending the regs rather than needing to amend the Bill, on the face of it itself. So, regulations under these powers would of course be subject to the affirmative procedure and so will be subject to that additional significant Senedd scrutiny.

Diolch. Section 38(5) enables regulations to create criminal offences in connection with failures to comply with requirements imposed by regulations made under section 38. Why do you consider that this is appropriate? Diolch.

The reason behind our proposals in section 38(5) on criminal offences is that it's foreseeable that, to enforce these provisions, criminal offences will need to be created. So, for example, to fairly determine an appeal, an appointed person may decide that they need a site visit. Powers of entry need to be conferred by the regulations, to ensure that that can happen. So, if someone then unlawfully denies entry to the site, a criminal sanction could be applied, just as they are under section 66 of the Bill, for obstructing entry to land. But—but—in bringing forward them as regulations, any regulations that create criminal offences would be subject, just to be clear, to a justice impact assessment. We think that is very important. They'd also be subject to the affirmative procedure as well. So, they've got those safeguards in place.

Thank you, Cabinet Secretary. Henry VIII powers have rarely been used—talking about delegated powers now—they're still rarely used by the Scottish Government, but the Welsh Government seem to be wanting to use them more and more. Section 55 includes a Henry VIII power enabling the Welsh Ministers to amend the definition of 'a relevant public authority'. Why do you consider that the inclusion of this power is appropriate? Is the limitation placed on this power by section 55(4) included, because the addition of bodies that are not devolved Welsh authorities would cause an issue with regard to legislative competence? Diolch.

The first thing to say, in answer to that, Laura, is we don't envisage there are going to be many instances where this power will be relied on. But where it is relied on, it'll be to ensure that the regime works effectively, so the effect of any amendment is limited to the provisions related to information sharing. What this provision does do is it gives Welsh Ministers the opportunity to make regulations at a later date, should it become apparent that another body should be added to the definition in subsection 1. Now, what this does is it ensures that, for example, if a new body is created with functions that means it receives information relevant to the authority, as described in this Bill, such a body could be brought within the scope of section 55. So, we regard this as a very sensible approach, and very appropriate to this Bill. So, it's if a public body, in that context of sharing information, needs to be added to the Bill.

Diolch yn fawr. We've run out of time, but we haven't run out of questions. I would consider asking you to stay for an extra five minutes, but it's not an extra five minutes we need for the questions we've got left. Can we write to you and you can give us written responses to those questions?

Yes.

Can I thank you and your officials for coming along? I've got to remind you there's a transcript of this, which you can have a look at and check for accuracy. Again, thank you very much for coming along and answering our questions. I'm sure we'll be discussing it a lot more in the future. Thank you.

Diolch yn fawr iawn, Cadeirydd.

Can we now move into private session? Yes. We'll meet back here at 2.40 p.m.

Can I welcome Members back to the committee meeting? I will take us on to item 3, which is instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. SL(6)575, the Non-Domestic Rating (Withdrawal of Charitable Relief for Independent Schools) (Wales) Regulations 2025. These regulations amend the Local Government Finance Act 1998 in relation to Wales to withdraw eligibility for non-domestic rating charitable relief from independent schools with charitable status to bring them in line with independent schools that do not have charitable status for the same purpose. Senedd lawyers have identified one merits reporting point. A Welsh Government response is not required. First, Kate, from our legal team, would you like to run through the reporting point?

The merits reporting point is just to note that an exception is provided in respect of independent schools that are wholly or mainly concerned with providing full-time education to pupils with an individual development plan.

Okay. Thank you. That takes us on to item 3.2, SL(6)576, the Free-Range Egg Marketing Standards (Amendment) (Wales) Regulations 2025. These regulations amend legislation in relation to marketing standards for eggs marketed in Wales by removing the limit on the length of time that laying hens can have their access to open-air runs restricted and still have their eggs marketed as free-range eggs. Senedd lawyers have identified one technical reporting point, and a Welsh Government response has not been requested. Kate, would you like to run us through the reporting point?

The technical reporting point is seeking further explanation from Welsh Government about the insertion of the word 'temporarily' into the regulation, given that the provision is intended to apply regardless of the duration of the restriction. We are just waiting for Welsh Government to respond.

Okay. Thank you. Can we deal with items 3.3 and 3.4 together for convenience? Item 3.3, SL(6)578, the Welsh Language (Wales) Measure 2011 (Amendment of Schedule 6) Order 2025 and item 3.4, SL(6)577, the Welsh Language Standards (No. 1, No. 2, No. 4, No. 6 and No. 7) Regulations (Amendment) Regulations 2025. The Welsh Language (Wales) Measure 2011 (Amendment of Schedule 6) Order 2025 inserts the Adjudication Panel for Wales, the Boundary Commission for Wales and the Future Generations Commissioner for Wales into Schedule 6 to the Welsh Language (Wales) Measure 2011, which sets out the bodies that are liable to comply with Welsh language standards. The Order does not place any Welsh language duties on those bodies, but it allows the Welsh Ministers, by regulations, to make service delivery standards, policy-making standards, operational standards and record-keeping standards specifically applicable to those bodies.

In this case, the relevant regulations are the Welsh Language Standards (No. 1, No. 2, No. 4, No. 6 and No. 7) Regulations (Amendment) Regulations 2025. These regulations amend five sets of existing Welsh language standards regulations, so that additional bodies, including the ones inserted into Schedule 6 to the 2011 Measure by the 2025 Order, are required to comply with Welsh language standards. This will enable the Welsh Language Commissioner to give a compliance notice to those bodies. Senedd lawyers have identified one technical reporting point in relation to the 2025 Order, and one technical reporting point in relation to the 2025 regulations. A Welsh Government response has been received in relation to both reports. Kate, do you want to take us through it?

Thank you. In relation to both instruments, a single technical reporting point identifies that the wording used in the preamble to describe the draft affirmative procedure is unclear about what is actually being approved by the Senedd, and so Welsh Government is asked why the usual clear form of words hasn't been used, as seen in recent other draft affirmative instruments. In response to both of the draft reports, Welsh Government says that, in its view, the reference to subsection (2) of section 150 of the Measure is sufficient to make it clear that it is the draft statutory instrument that receives the Senedd's approval. Welsh Government also notes that other existing standards regulations use this wording. The committee’s legal advisers would maintain that the wording used in other draft affirmative instruments is clearer and more accessible to readers of the legislation, and precedent text shouldn’t be used without ensuring that the drafting is clear and appropriate by current standards. However, ultimately, drafting matters are for Welsh Government to judge and so we may just agree to disagree on this.

Okay. Thank you very much. Item 3.5, SL(6)579, the Regulated Services (Inspection Ratings) (Wales) Regulations 2025. These regulations impose requirements on certain service providers in relation to ratings given by the Welsh Ministers under the Regulation and Inspection of Social Care (Wales) Act 2016. The regulations are due to come into force on 31 March 2025, and will require certain service providers to display such ratings in a specified manner and place and make it an offence to fail to do so. It will also provide for an appeal procedure against such ratings in certain circumstances. Senedd lawyers have identified two technical reporting points and one merits reporting point. A Welsh Government response has been requested. Kate, would you like to go through the reporting points?

The first technical reporting point is seeking further explanation from Welsh Government in relation to certain definitions that have been used in the regulations. The second point asks Welsh Government why there is no set time frame within which the Welsh Ministers must provide the outcome of their review of the inspection rating to a service provider, and this could cause uncertainty and delay because a service provider is unable to submit an appeal against the rating until they've received the Welsh Ministers' outcome. And then the merits point is just noting that the section of the explanatory memorandum relating to consultation appears to be incomplete. We're just waiting for Welsh Government to respond to all three points.

Okay, thank you very much.

On to item 4, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3—previously considered. The Non-Domestic Rating (Multiplier) (Wales) Regulations 2025: the committee considered this instrument at a meeting of 3 February and laid its report on the same day. Members are invited to note the Welsh Government response to the report that has since been received. Kate, do you have anything to raise from the Welsh Government response?

Just to note that Welsh Government are going to correct the explanatory note before the regulations are made.

Are we happy to note the Welsh Government response? Yes.

Notification and correspondence under the inter-institutional relations agreement: item 5.1, correspondence and written statement by the Minister for Mental Health and Well-being on the Food and Feed (Regulated Products) (Amendment, Revocation, Consequential and Transitional Provision) Regulations 2025. The Minister for Mental Health and Well-being informs us that she has given consent to the Secretary of State to lay these regulations in relation to Wales. The purpose of the regulations is to make substantive reforms, on a GB-wide basis, to the pre-market authorisation processes within certain regulated food and feed product legislative regimes.

The Minister confirms that existing Welsh subordinate legislation that references amended legislation will require minor consequential amendments to remain operable, and lists the changes that the regulations make to the executive competence of the Welsh Ministers. The Minister states that she has given her consent to these regulations on this occasion for reasons of efficiency, cross-Government co-ordination and consistency. Are Members content to note?

Item 5.2, correspondence from the Cabinet Secretary for Economy, Energy and Planning: memorandum of understanding—the use of UK Government funding for city and regional growth deals. The Cabinet Secretary informs us that this memorandum of understanding between the UK Government and Welsh Government was published on 28 January 2025. The memorandum of understanding summarises and formalises the overarching principles and approach to the use of UK Government funding for city and regional growth deals agreed between the UK Government and the Welsh Government and local authority regional partnerships. Are Members content to note? Yes.

Item 5.3, correspondence from the Welsh Government: meetings of inter-ministerial groups—letter from the Cabinet Secretary for Economy, Energy and Planning on the Interministerial Group for Trade. The Cabinet Secretary for Economy, Energy and Planning confirms that a meeting of the Interministerial Group for Trade took place on 22 January 2025, and that during the meeting discussions took place in relation to the engagement between the UK Government and the devolved Governments and the UK trade strategy. There were also updates on several active trade negotiations. Are Members content to note?

Papers to note. Item 6.1, correspondence from the House of Lords International Agreements Committee—scrutiny of international agreements and inter-parliamentary relations. The House of Lords International Agreements Committee writes to thank members from our committee and the Economy, Trade and Rural Affairs Committee for meeting with them on 27 January to discuss scrutiny of international agreements and inter-parliamentary relationships. Are Members happy to note? Yes.

Item 6.2, correspondence with the Counsel General and Minister for Delivery—consolidation of planning law. The Counsel General response to our request for further information and clarity in relation to the Welsh Government's proposal that the consolidation of planning law, which were detailed in its annual report on 'The future of Welsh law: A programme for 2021 to 2026'. The Counsel General states that the two proposed Bills will be accompanied by a single explanatory memorandum, which include explanatory notes, tables of origins and destinations, and the drafters' notes. The Counsel General also confirms her intention to make available to Senedd Members a draft of the main Bill, and hopefully also the consequential provisions Bill, in June. If possible, she states that the Welsh Government will also make available a working draft of the explanatory notes at the same time. Time has been made available in the private session to discuss the correspondence further. Are Members content?

Item 6.3, correspondence with the Cabinet Secretary for Finance and Welsh Language—Visitor Accommodation (Register and Levy) Etc. (Wales) Bill. The Cabinet Secretary responds to our request for further information in relation to the Bill, following his attendance at the committee on 20 January. The Cabinet Secretary also clarifies a comment that he made during the meeting in relation to the regulation-making powers in the Bill under section 9(5), stating that while the power is intended to futureproof situations that the Welsh Government has not been able to account for at this point, it is not limited to emergency situations. The additional information will be included in the committee’s report, which we'll consider in a few weeks' time. Do Members have any comments they wish to make? No.

Item 6.4, correspondence from the Cabinet Secretary for Economy, Energy and Planning—legislative consent memorandum on the Data (Use and Access) Bill. The Cabinet Secretary provides a copy of the Welsh Government’s updated assessment in relation to any potential impact of the Data (Use and Access) Bill on the trade and co-operation agreement. The Cabinet Secretary also notes that in cases where her officials are concerned that UK Government policy is incompatible with the TCA, they will continue to raise these concerns directly with the UK Government. However, she states it is ultimately for the UK Government to ensure it has carried out its own due diligence and is compliant with any international obligations. Again, the additional information will be included in the committee report, which will be considered for the first time next week. If Members are content to note this, we’ll move on to the next item.

Item 7, in accordance with Standing Order 17.42, I invite the committee to resolve to exclude the public from the remainder of the meeting. Do Members agree? Yes.