Legislation, Justice and Constitution Committee

That takes us on to the first substantive item: Senedd Cymru (Member Accountability and Elections) Bill—evidence session with the Counsel General and Minister for Delivery. Can I welcome Julie James, the Counsel General and Minister for Delivery? Would you or your officials like to introduce themselves?

They can introduce themselves, I think.

I'm Anna Hind. I'm from legal services.

Good morning. Ryan Price, head of Senedd policy, Welsh Government.

Will Whiteley, deputy director for Senedd reform.

Thank you very much. If we can perhaps start with some questions. I have a horrible feeling we're not going to get through them all, so we'll probably be writing to you at the end of it. The first question from me: are you satisfied the Bill is within the legislative competence of the Senedd?

Yes, it's been through all the usual processes and checks within the Government, and I'm confident it is within competence. We have got some provisions that require the consent of the appropriate Minister of the Crown, and we've taken steps to obtain those consents. Obviously, the committee knows that the Llywydd reached the same conclusion, that she considered the Bill to be within competence.

Thank you. We've now got that on the record. Regarding the Minister of the Crown consent required for provisions within section 4 of the Bill, what engagement have you had with the UK Government and when do you expect to receive the necessary consents?

We've written to the Secretary of State for Wales seeking the consents. We haven't had a response yet, but we asked for it by the end of January. I'll keep the committee updated on the progress.

Thank you very much. The explanatory memorandum is silent with regard to human rights. What consideration have you given to human rights issues that may arise through an Order that is made under Part 3 of the Bill?

I made the declaration that confirms the view that all of the provisions are compliant with the human rights duty, and they're all within the legislative competence of the Senedd, and that, of course, means that they're compatible with the convention rights. We're required to make provision under section 13 of the Government of Wales Act 2006 that things would be within the legislative competence of the Senedd, which includes a requirement to ensure provisions are compatible with convention rights. So, those checks and balances have been looked at.

I will say, though, with this Bill, that one of the things that we've been discussing a number of times alongside the standards committee is that we will have to make sure that, as we go along with the Bill, it stays within competence. I'm very satisfied that it is currently compatible and within competence.

Okay. Diolch yn fawr. Alun.

Why do you say that?

Because we've had lots of discussions about what the competence of the Senedd is with regard to Welsh elections, and how far away from an election you can go before you're no longer approximate enough to the election for it to be within competence. That's a judgment, so we'll have to be satisfied that we've stayed the right side of that envelope.

I do understand that. So, you are just limiting—. That's the reason why you're just limiting these provisions to that existing legislation.

It's something we always have to do, of course, but with this one I think there are conversations that we've had that have been around where the edge is. So, we'll have to take a view at some point.

Okay. It seems to me that the provisions in the legislation regarding recall are pretty well—the form of a consensus. I don't see any argument contrary to that, and I presume that the Standards of Conduct Committee has done the work that it requires to do in terms of public consultation and a debate that's taking place. I'm interested, therefore, in some of the detail of the Bill. You say that the Standards of Conduct Committee, which you're making statutory now, may issue guidance. Why is it 'may', rather than 'should' or 'will'?

Because we feel very strongly that the Government should not be telling the Commission how to manage its business. The Bill has been drafted to be permissive.

I understand that from the Government's point of view, but this will, of course, be the law of the land, so it's not the Government telling the Standards of Conduct Committee to do these things, but a statute, which has been passed by the Senedd doing so.

So, it's permissive deliberately. If a Senedd committee wants to make it mandatory, then the Government is very happy to discuss amendments to that effect. But we felt very strongly that we shouldn't start from the point of view of the Government telling the Commission how to conduct its business.

I'm glad you got that on the record as well. [Laughter.] In terms of where we're going, you're seeking a two-thirds majority for this guidance. That's quite unusual. There are certain statutes that require a two-thirds majority, but they're limited to constitutional matters. So, why do you believe a two-thirds majority is necessary here?

So, there are a range of reasons, one of them is just pragmatic: it requires a change in Standing Orders. Standing Orders require a two-thirds majority to change them, so it just holds it in line with the changes required. But also, I think it's a pretty serious sanction. It shouldn't be subject to political interference. It should have the majority of Senedd Members behind it, if that's the route we're taking.

But this isn't a sanction, is it? This is the guidance.

Yes, but the guidance is what sets out the rules by which you would become subject to the recall.

Yes, but it's not the sanction itself, is it, it's the guidance.

I accept that, Alun, but the guidance will be very much the set of rules, if you like, that guide it, and so we think it should be a two-thirds majority all the way through, not least because you don't want the guidance changed by political interference either. It should command the majority of the Senedd.

I completely accept the argument that we need to disengage, if you like, political expediency from the debate around these matters, and this should be a matter of consensus across the floor of the Chamber. I completely accept that. But that is always the case. We've got a standards report in front of us this week, for example. And rarely can I remember a standards report of any sort that has been taken up in the politics of a place. Normally, these matters are passed without comment and the rest of it, as I think they should be. So, I'm interested that you believe this guidance—not the sanction, but the guidance—requires a two-thirds majority, because that's not really where we've been on other occasions.

I think we've just simply started from the point that this is a change to the Standing Orders, it's a change to the procedure, and the entire suite of Measures should, therefore, be subject to the two-thirds majority. If the committee wants to make a different argument, I'm perfectly happy to engage with that argument. But we've started from the position that this is a very serious thing to be proposing, a removal of a democratic mandate from somebody, and therefore it should be treated with—

Yes, but we're talking about the guidance here, we're not talking about—

Yes, but the guidance is what sets out the criteria by which this would happen. And again, it's about—. I'm quite happy to entertain a discussion with the committee about whether it's right or not, but we've started from the point of view that the whole thing is in the two-thirds majority place.

Okay, I accept your point on that. Going forward, in section 4, I'm advised that there are legislative competence issues around placing duties on courts here. So, the Llywydd will only be notified of a conviction where it occurs in a court in Wales or England, but not necessarily be notified if it takes place in Scotland or Northern Ireland. It's a bit curious, isn't it?

It's just about powers, isn't it? What we'd expect, of course, is that the guidance would say that a Member is under a duty to report such a conviction, and that not reporting the conviction would then also trigger a series of sanctions. So, there are ways of doing it.

Yes, but—forgive me, I don't have the legislation directly in front of me—I seem to remember that, in earlier clauses, the sanction is triggered by a conviction in any court in the United Kingdom. It's rather curious, therefore, that any court—. I would have anticipated that the law would be written in such a way as to enable that trigger to be notified.

We just think it's a very low probability—

I accept that.

—and if it happened, it would be in the glare of media publicity and so on.

I accept that the Llywydd is unlikely not to be aware that a Member was convicted of some terrible crime.

And the duty's engaged as soon as the Llywydd is aware. So, the duty to take action is immediately engaged as soon as the Llywydd is aware.

It just appears to me that there's a real contradiction there within the architecture.

We just don't have any method of applying the duty to courts in Scotland or Northern Ireland that we've been able to come up with.

Okay. That's an interesting point in itself, which I think we need to give some further consideration to. Thank you.

Okay. Adam.

Another argument for the devolution of justice, because you wouldn't have that problem then, would you? You could direct the courts under those circumstances.

The early termination events set out in section 8 of the Bill, where the sentence leading to a trigger event is overturned on appeal—the issue arises about the length of time allowed for the appeal process to reach its fruition. Now, given the timescales involved in appeals processes, are you satisfied that the three-month period provided for in the Bill is sufficient for the system to have followed its course?

Well, no, it isn't. We think that it's very unlikely that an appeal would ever have been completed within three months, but we don't think that's a reason not to legislate in case it was. We also think that the likelihood is that it won't be concluded, and actually some criminal cases are taking so long at the moment it might not be concluded within the term of the Senedd. But we don't see that that's a reason not to have a provision where, if it is concluded quickly, you can take the outcome into account. So, that's the thinking there. Again, I’m happy to engage with the committee about other ways of doing it. What we don't want to have is a situation where it doesn't happen until all appeal routes are exhausted, because, frankly, that would probably mean it would never happen.

What's the—I’d be grateful if you could remind me—current position in relation to the current disqualifying provision, if that applies, in terms of a conviction and imprisonment for more than 12 months? How does it work in relation to that?

It's the same, I think, isn't it?

It is. It's automatic upon that sentence of imprisonment being applied, so it doesn't take account of any appeals either in terms of disqualification—[Inaudible]—Senedd.

So, if anything, you've been—. 'Generous’ is not the term—

Slightly more generous—

—but you take my meaning.

Yes.

All right, okay. Did you consider any other alternative mechanisms or means of achieving the same result?

Oh, yes. We've been round and round on this, to be perfectly honest with you. But I think in the end, because of the length of time that most criminal appeals take, you'd have to take the view that waiting for the appeals process to be exhausted would effectively mean that you hardly ever managed to do it. And if somebody does manage to clear their name, they're obviously free to stand again anyway.

Okay. Why three months, then?

Just because we think that's the length of time that makes a difference to the process, if you like. Again, I'm not wedded to three months. If you want to argue with me it should be four or two, then I'm more than happy to have that conversation, but it's an amount of time that we think it might happen in that amount of time, in which case you should take account of it. But if not, then we shouldn't. It's just trying to be pragmatic, isn't it?

I'd just add as well that I think the three-month window is the usual window in which you set a date for, say, a by-election as well. So, it's also to allow time for the electoral administrators to run the recall poll as well.

Okay. Let's move on to section 11. Again, the power to make regulations under this section is permissive—it's 'may' rather than 'must'. Why?

It's a convention. This is an argument I had with Alun once when he was a Minister and I was a backbencher.

Only the one?

It's a convention that you give Ministers the widest flexibility possible in the exercise of their powers. It's a convention. You shouldn't assume that that means that Welsh Ministers would decide not to make regulations at all, because the thing can't function unless they make the regulations, but it is a convention. And again, I'm happy to discuss with the committee whether or not that is something you want to stick to. I don't know if Alun remembers, but we had an argument about the agricultural wages board—

I remember.

—when we were sitting the other way round, because I made exactly that point. What was the point of establishing that legislation if you weren't going to establish the board? So, it's the same point, really.

Yes. So, you fully accept that to make the whole thing operational, you would have to introduce regulations.

Yes. If the committee wants to recommend that it's changed to a duty so it's 'must' instead, I'm not going to argue with you.

Okay. Subsection (3) creates the power to create criminal offences. What criminal offences do you currently envisage under this sub-clause, and why is none of that detail included on the face of the Bill?

We'd be looking to replicate. So, rather than have to do research across a large number of different pieces of legislation, we'd be looking to replicate some of the existing offences that exist. And then, obviously, we've had the long discussion, Adam, as you know, about the deliberate deception offence. So, we'd be looking to look at consistency between the two systems. If you think of the conduct Order and the way that a normal election is run, you'd be looking to duplicate that for a recall poll. So, you'd have the same set of rules and regulations around how that poll is conducted, because it's obviously going to be an election. It would look like a by-election to all intents and purposes. So, you'd want them to be consistent. Some offences won't be relevant. The one around nominations isn't relevant, just as an example. So, we'll have to do the work to go through what is and isn't relevant for a recall poll.

Presumably, even as written, there would be limits about the criminal offences that you could create. It has to be, at a very basic level, relevant to the purpose of this section.

Yes.

Okay. Alun mentioned earlier you're placing the Standards of Conduct Committee on a statutory footing. Could you tell us why?

Again, because for this all to work you absolutely need to have the committee. It doesn't currently require there to be a committee. I agree it's hard to imagine a Senedd that wouldn't establish a standards committee, but this marks a real change in the regime, and it doesn't function unless there's a committee. So, you have to put all of the things in place so that no Commission could decide not to do that. That's why it's doing that. It's trying to make a coherent legal framework within which the system would sit.

Is the House of Commons equivalent—?

I have absolutely no idea. Does anybody know?

I think, largely, they operate on less of a legislative basis and far more on a flexible system, so I don't think there's a legislative requirement for there to be those committees.

So, they're non-statutory; they're created through Standing Orders—the Scottish Parliament, similarly. So, it does beg the question, because they have recall with a role for a standards committee, and yet they're non-statutory, so that would suggest it's possible, is it not, to have—?

It is absolutely possible, because you're going to make the assumption that any parliamentary authority is going to put a standards committee in place. I suppose it depends how much you—. I mean, just speaking very personally and not on behalf of the Government for a moment, we've seen what happens when conventions aren't put into statue and a Government decides not to abide by them. So, I don't wish to fuel the cynicism in politics, but it seems we have an opportunity to put it beyond doubt, so we've decided to try and take it.

Also just to add, section 28 of the Government of Wales Act prevents non-Members of the Senedd sitting on committees, so there did need to be a legislative change in order to enable that into this circumstance. But, obviously—

This will allow the lay members.

Yes.

Okay. Let's turn to that, then. You mentioned previously in the Siambr that some Parliaments that have lay members introduce a complete prohibition on former Members sitting. In the draft Bill, you've got a two-year prohibition—up to two years—after you've served as a Member of the Senedd. Explain the rationale for that approach.

It's a place to start, if I'm honest. That's what the commissioner looks like currently as well. I personally think the lay members and the commissioner should be subject to the same prohibition, whatever that is, and we should change it, whatever we change it to, to the same. And I think it's a matter for the parliamentary committees and the Commission to do that. But this is the beginning of a legislative process, it's the beginning of a conversation.

For what it's worth, as a personal thing, not speaking as the Counsel General, I think it should be a permanent disqualification, because I think you would permanently be thought of as being in whatever camp you'd been in when you were elected. And that's just a personal view; it's not a Government view. But I can see, if you're trying to overcome cynicism and so on, the idea that that person is now non-aligned and independent is difficult.

But there are lots of systems in place where two- or five-year qualifications are in place. The two-year qualification acts for Ministers who are taking jobs outside after their portfolio, for example. So, the two-year one is an established set of time. There are also plenty of ones I could mention that are five. But it's my own personal view, it's not the Government's official view, that that is difficult.

So, that's where the two-year comes from. I can't remember the name of that committee, the ministerial committee—

I can't remember the name of it either.

Given that you've put on record, Counsel General, your own personal position, you'd accept that, probably, the degree of perceived conflict of interest here is possibly even greater, because you're kind of being appointed not just to any external organisation, but to a sub-committee of an institution you were a member of. Did you think maybe at least having a four-year term creates a greater level of distance?

There's an argument to be made for a number of different time periods. As I say, Adam, there are lots of them that are five years, for example. As I keep expressing, my own very personal view is it should be permanently disqualified. If you've been an elected Member of the Senedd, you shouldn't be allowed to be a lay member of one of its committees, because, frankly, I don't think you'd ever be regarded as lay by anyone. But it's for the Commission and its committees—you—to suggest back to us what your view is. Again, it's one of these where I don't particularly think the Government should be imposing a view.

Lay members, currently as drafted, would be able to serve up to two consecutive six-year terms. That's 12 years, potentially, longer than most Senedd Members would expect to be on or even want to be on the Standards of Conduct Committee. Could you tell us why six-year terms, given that we've got a four-year term, and also, isn't that quite a long, potentially, duration of being members of these committees?

It's a maximum. When appointed, you wouldn't have to appoint them for the maximum term, just to say. I think it needs to be longer than the Senedd term, so that you have some experience going across elections and so on. Myself, if I was setting that up, I'd set them up so that they weren't all finishing at the same time. So, you'd have a rolling programme of people with some expertise, and so on. And unless you appoint people at different lengths to start off with, you end up with an all-out situation all the time. So, we're trying to give maximum flexibility for that.

Also, some members wouldn't want to serve that long. Also, actually, attracting lay members to these kinds of panels, my experience in local government would tell me, is quite difficult; you're not inundated by people who want to do these jobs. So, artificially removing people who could otherwise still serve perfectly reasonably is also something to take into account. So, it is about just giving the maximum flexibility for the set of parameters that you'd want to appoint people for.

What are the equivalent rules in terms of the adjudication panel? Did you look at those?

'I don't know' is the answer to that.

All right. That's okay.

We can find out.

The auditor general has a number of lay people appointed, and they have joined for different lengths of times—some have been reappointed, and some have not been reappointed, I think, to generate that level of turnover. I assume that you're working along similar lines.

Yes, exactly. And it's the same thing for board members on arm's-length bodies, and so on. You don't want a situation where they're all on the same set of terms and conditions, because you don't want them to all change over at the same time, for obvious reasons. So, yes, we try to make sure that you've got a rolling programme of people with expertise. And, as I say, it's a maximum; it's not mandatory.

Okay, thank you. Alun.

I won't pursue that; I can pursue that over a long period of time. In terms of the conduct of elections, the key issue here is this power to make provision prohibiting the making of or publishing of false or misleading statements of fact. I presume you're creating this offence in a rather curious way for reasons of competence.

Yes. We have to make sure that it's in relation to Senedd elections, not just a general offence.

Yes. But you're not creating a sort of stand-alone offence—it shall be illegal to say whatever misleading fact, or publish, or whatever. You're doing it by giving the power to the Minister to create the offence by providing a duty to make provision, which seems to me to be—. If this offence is important, then surely it should be defined and written on the face of the legislation, rather than the duty given to Ministers to bring forward something at some point in the future.

What we're trying to do is create a coherent set of offences that govern elections. This is not the only thing that governs elections, and normally they'd be set out in the conduct Order. What we're trying to do is enable the next conduct Order to include all of the things that are relevant to the conduct of an election, including all of the criminal provisions. If you do it separately—. It's not impossible to do it separately, but you end up with having to look things up in two separate places and so on, which we don't think is at all optimal. These things are difficult enough anyway. We have a system in which we wish to have enforceability as well. We wish to have it taken seriously, and so on. So, having it as a coherent conduct Order, we think, is a far better way of going about it.

I've got no issue with that, but what the conduct Order fundamentally does, of course, is to deliver primary legislation. That's basically its function, isn't it? And that primary legislation already prescribes all sorts of different things that exist in law, which is then delivered through the conduct Order. So, I don't think that in itself provides rationale for not creating a stand-alone offence, if that is what we believe is the correct thing to do. Obviously, I don't agree with that. I think it's a ludicrous proposition. But, putting my own views aside, it surely makes sense that if you actually want to do this, that you actually do it, and you do it cleanly and openly, on the face of the legislation: 'It shall be an offence to do whatever you are seeking to do.' Bang.

That's a point of view; it's not my point of view.

So, why isn't it your point of view?

Because I think that you've got to give consideration to what the whole conduct Order looks like and—

Yes, but that's—

—the range of offences therein, and the new offence, and make sure that they sit carefully together. I think that the next Senedd will be in pole position to do that. You also, in my view, have to have the whole standards thing set out. You've got the guidance set out and so on. So, taking one bit of it and putting it on the face of the Bill, I don't personally think works.

I don't disagree with what you say about the standards framework—I think you're right about that, as it happens. And I don't disagree that the conduct Order, or the next conduct Order, whenever that is, in 2030, should have a level of coherence to it. I completely accept that. But is it the case that Government here are saying, 'Actually, of all the different offences that may occur during the period of an election, this one is going to be defined at a future date, which isn't prescribed, and the nature of the offence, or in terms of what it's going to look like, isn't prescribed either'?

So, what it is, it's a duty, and the duty comes into force two months after Royal Assent, and therefore whoever the next Government is must have executed that duty by the end.

Well, where does it say that?

It's in section 13(2A). It's got to be included in all future Orders made under section 13. So, it has to have been satisfied by the next election, basically.

So, we are being asked here to put on the statute book a duty to create an offence that isn't defined.

It's for the next Government and the parliamentary authorities to define that offence.

But that feels—. I'm trying to differentiate my own views on this matter. But that feels like an extraordinarily unsatisfactory way of making law, because usually, when you create an offence, you say, 'This is something that needs to happen because, for whatever reason, we believe that we need to change the law to achieve our objectives.' That's not what you're saying here. What you're saying is, at some point in the next Senedd, the Minister, who is undefined, will have to find a way of putting into the next conduct Order a couple of sentences about this. It doesn't feel like we're creating a serious piece of law here.

But it wouldn't be on its own like that.

Well, I don't know, because it's not defined.

Well, it wouldn't, because what we're saying is you would have a standards of conduct committee that would look at the guidance, and the guidance would be produced in that way; it would be passed under Standing Orders, the Standing Orders would take account of the terminology that was being proposed. So, you've got a set of things that you need to happen for this to happen.

There's a real risk, if we do it now—and it would be relatively arbitrary, how would we do that—that it would be challengeable, and take us outside competence. So, I'm very concerned about the competence on this Bill. We're right on the edge of what we want to do. That doesn't mean we shouldn't do it; I'm quite happy to push the envelope, but we need to make sure that we don't push it so far that the whole thing fails. So, that's part of it as well. We're trying to insulate the Bill from that risk, a little bit, but then, on the other hand, we're also trying to make sure that the next Government does do it. So, they're obliged to do it; it's not a thing that they could do if they felt like it.

So, tell me, then, what is a 'false statement of fact'?

So, that is one of the big problems, isn't it? It's a false statement of fact that's deliberately deceptive. So, you have to have known that it's a false statement of fact, and it has to be the sort of fact that you're not easily able to correct. It's actually quite hard to find such a statement.

Well, this is why I disagree with it, of course, because we've just been through a pretty brutal by-election in Caerphilly, and I saw and heard a number of things said by candidates—or candidate, in fact—that I believe to be a false statement of fact.

Are they? Because a lot of the things that I objected to in the Caerphilly by-election were statements of opinion or rhetorical statements—

Statements of fact, or statements that are presented as facts, and it appears to me that we're creating an absolute field day for litigation here, which is essentially trying to litigate political opinion, which is my real fear about this legislation. We heard a number of issues, and I heard a number of statements made, about, for example, immigration, which I don't believe to be true. In the political sphere, of course, it's not simply the fact that is in dispute, but the interpretation of a particular fact or series of facts, which can together create an offence, potentially, under this legislation, or not.

I'm not really disagreeing with you, Alun—

No, I can see you don't want to go near this. [Laughter.]

I do think it's very problematic that we have a system of democratic debate that is open to a whole series of statements of opinion, which are designed, in my opinion, to mislead, but which when dissected are actually not statements of fact. People are entitled to an opinion not based on any facts. That's the reality of the world we seem to be living in.

And we've all seen that in each one of our political parties, at different times.

Well, absolutely. People make statements stating that their opinion is x. It has no factual basis at all. I mean, you can think of several of them. There are lots in the climate arena, for example. But they are entitled to have their opinion, which is not based on any kind of fact.

So, you're going to wish your successors well with this, I trust. [Laughter.]

I do, though—. Adam and I have had this conversation a number of times. I do, though, see that stating that politicians should not make misleading statements of fact is something that might be worth saying all by itself.

Well, and that is generally done through the code of conduct, of course, or a similar document, and I've got no issue with that, as it happens. It's creating the criminal offence that I find rather curious to wish to do. But I think we could spend the rest of the day arguing about these matters, and I don't think either of us want to do so.

Okay. So, this is an area that we are exploring here that is limited to the conduct Order, limited to the period before an election, and limited, in extent, to that sort of context. You're not imposing this restriction on Members. Why is that? So, for example, I could say whatever I like now, six months ahead of an election, but three months ahead of an election or whatever, I wouldn't be able to say the same thing. It seems to be a bit odd.

Well, that's really complicated, isn't it, because Members also have privilege when they speak in the Chamber, and I don't think any of us—

But speaking outside the Chamber, for example.

Well, I mean, to some extent, you have privilege speaking in a committee as well.

Absolutely, I think.

But it's qualified here in the Senedd, of course—

Qualified, yes.

—but we have been asking the UK Government to give us absolute privilege in the same way all Parliaments should have, in my view. So, these would be statements that were made outside of the forum of the Parliament, and they would be subject to the code of conduct. But my view is that the same broad definition of wrongdoing should apply to both Members and candidates in the period of time that you're in the run-up to an election. So, I don't disagree that they should be held to the same standard, but that's why we're saying it should be replicated in any associated Standing Orders and guidance for Members.

I think we'll leave it at that.

I should say, actually, just at the end of that, that the Standards of Conduct Committee is also doing a piece of work on this as we speak as well.

Adam is going to take a different view now.

Yes. Well, I think that, probably, Chair, you wouldn't want us to stray into having a debate in the committee on the provision.

Just take us back, Counsel General, to the Standards of Conduct Committee report. They did recommend, in relation to this provision, didn't they, introducing a wider offence of making a false or misleading statement, because of course there already is, isn't there, a criminal offence of making a false or misleading statement, or words to that effect, but at the moment is applies narrowly to the character or conduct of another candidate. What this does, effectively, is to widen the scope of that existing provision. Am I right in identifying that—

Yes, absolutely.

—as the starting point? The explanatory notes say this about section 22, that

'The effect of these amendments is to clarify what the scope of the power is and always has been.'

Could you just clarify exactly what that is referring to?

So, again, what we're trying to do is we're trying to make sure that the new provision doesn't alter the scope of the existing provision, so we don't inadvertently narrow the scope of the existing provision by attempting to put another one in that complements or widens it, as you say. So, we just have to make absolutely certain that we haven't done that. The point about it is that we're making cumulative law. So, you want to make sure that you're not putting something in here that would eventually lead to a judge saying, 'Well, if you've put that in here, it must mean it's not included over here or you wouldn't have done it.' So, it's that; it's trying to avoid having done that, effectively.

Yes. You'll know, and it'll come as no surprise, Counsel General, that I have some sympathy, in general terms, with the principle of putting as much as possible on the face of primary legislation. You'd expect this committee in particular to support that view. In addition to competence issues, is there another reason why you are doing it this way, if I can put it in those loose terms? Is it to do with timing, really? There will be a further opportunity, then, for consultation and refinement, et cetera. The Senedd will be passing this, if everything lines up, on the last day of the Senedd.

Indeed. So, Royal Assent will be after the Senedd rises for the Easter recess; I think probably before dissolution, which I believe is on 7 April. But, anyway, after the Senedd rises. And if it's referred at all, it will fail, therefore, because it will go out beyond the limit of the Senedd. So, there would be no opportunity to correct anything that—. There would be no opportunity to correct it. So, if it falls, the next Senedd would have to start again, effectively. We're very keen that that doesn't happen, so we are perhaps being hyper cautious about it, because we want to make sure that it isn't referred and that it's inside the envelope for competence.

But you're not wrong either that we think that this is really complicated and requires quite a lot of consideration with stakeholders and others. Lots of civic society should be engaged in this, and so on, and it will give the next Senedd the opportunity to do that, and the standards committee in particular. We also think that the guidance needs to be looked at very specifically as well. So, it's got two parts to it, really.

And then, as you know, this issue about proximity to the elections, making sure that it is to do with the conduct of a Welsh election, it's a little bit, 'How long is a piece of string?' So, making sure that we don't get into a position where it's arguable, even, is one of the things that we want to make sure doesn't happen. Frankly, if we were doing this as a year 1 Bill, we might be a little bit more willing to push that envelope because we would be able to do something to correct it, but at this point we aren't. So, as you rightly say, if we manage to stay within the pretty tight envelope for this Bill, we would be doing the Stage 4 on the last sitting day—the last Government sitting day of the Senedd, the Tuesday of that last week.

Section 22(3) sets out at (2B) a long list of elements, features, that the regulation may include. Is there anything that that provision could not include? Effectively, this is a—

No, that's a without limitation list. It's indicative.

Yes. Right, okay. So, it doesn't exclude the possibility that there could be other elements.

No.

Right. So, given that, why set out these particular elements, then? So, if any of these elements weren't there, you could still include them in a draft regulation, yes? So, why are these elements highlighted? For public understanding, in order to frame—

So, all of those: for accessibility, for public understanding, to give people an idea of what was intended, to give a starting place for the development of it. But it's not intended to limit. It specifically says so, actually.

So, it's a kind of proxy for policy intent, to some extent, is it?

Yes, I suppose you could put it like that.

Right, okay. And moving on to subsection 4, what types of criminal offences could be created under the new section 13(4A)? And again, why have you decided—? So that subsection 4 that creates a new 13(4A) of the Government (Wales) Act, yes? Why, again, is there no further detail about the criminal offences that could be created, or that you have in mind, or any limitation on the nature of those offences and the appropriate sanctions et cetera?

So, it's just a clarification. It's for what the lawyers always say is for the purposes of avoiding doubt. It's clarifying that this is within the power. So, we've always interpreted it like this. We're just putting it beyond doubt. So, it's literally for the avoidance of doubt.

Okay. And there's no justice impact assessment in relation to the Bill. Why is there—? Would you normally produce one in relation to a Bill that does create the capacity for—

Because we've already done a justice impact assessment on the conduct Order, which is an enormous piece of work we did earlier, and the justice impact of any new conduct Order, which is where this would be included, should be done at the time of making the Order, so this isn't changing the justice impact at this time, so we think the justice impact would come with the new conduct Order.

Because it's contingent upon the detail rather than the general framework?

Yes.

Okay. That's everything from me.

Sorry, just to add: there is a justice impact assessment alongside the Bill, but it focuses just on section 4 in relation to the impact—[Inaudible.]—

But not on this.

Thank you for the clarification. Sorry—[Inaudible.] I think I might have inadvertently misled. [Laughter.] But it wasn't—[Interruption.] It wasn't deliberate, Alun, so we're okay.

Back to me. Why do you think the Henry VIII power contained in section 23 of the Bill is appropriate and necessary?

So, Schedule 2 contains an extensive range of minor and consequential provisions, including all of those currently identified as necessary to primary legislation. We've tried our very, very best to identify all of them, but the power enables a savings and transitional provisions type regulation to be made, and it's drafted in similar terms to the consequential powers in most Bills. It can only be used to give full effect to the Bill as enacted, so it doesn't give us wider powers to do that, so it's to carry out any missed—if you like—provisions, consequential amendments and so on.

I'll move on to how could the power in section 23 be used to amend this Bill.

So, exactly as I say, it allows the Welsh Ministers to make incidental or supplementary to or consequential on any provisions of the Act. So, it's just to make sure that there's a cohesive fit with the legislation. Obviously, this legislation has been developed at some pace, so it's just to make sure that we don't—. And with one of my other hats on, Chair, I have a duty to ensure the accessibility of Welsh law, so this is a way of making sure that we haven't made any errors that can't be corrected later.

I've been told—I think that's the best way to start this sentence—that there is a discrepancy in the terms used for 'disqualification' in the Welsh text of the Bill and the explanatory memorandum, and do you agree that 'anghymwyso', which is being pronounced very badly by me, is the correct term?

I mean, I have absolutely no idea. My Welsh is absolutely not up to that, so I'm going to defer to one of my officials.

Yes, we accept that the terminology in the Bill in section 18(4) at the minute isn't correct, and we would, subject to the Counsel General's approval, obviously, seek to amend that.

Okay, thank you very much. As you've discovered, my Welsh wasn't up to that, either. [Laughter.]

I don't think, in all honesty, Chair, that most people who speak colloquial Welsh are very familiar with those terms, but, very fortunately, we have parliamentary draftspeople and committee clerks who are.

Yes, but, as we know, it had a major effect when we both first came here when the Welsh and English said different things, which led to one person being disqualified and one person not.

I remember it well.

So, it is really important that the Welsh and English do say the same things.

Absolutely. I believe this one is a matter of consistency all the way through the legislation as well.

Some of your colleagues are nodding as well, so that's a good sign.

When do you believe this will be fully operational?

So, the necessary regulations will be developed and agreed, we hope, early in the seventh Senedd. We're working on making sure that whoever the incoming Government is will be able to do that. We'll need to do that—the next Government will need to do that—in time to allow electoral administrators to prepare for delivery of the next election, and, obviously, it will not be wholly within the gift of the incoming Welsh Ministers; we will also make sure that the standards of conduct committee have to carry out a set of things that they need to do in order to make sure that this happens as well.

Finally from me, how satisfied are you that you've had enough time to think through all the necessary issues such that no unintended consequences will arise from the legislation?

Well, Chair, the Bill sets out to enable the system of recall to happen and to strengthen the existing standards regime, and we've tried very hard to make sure that the provisions set out in the Bill minimise the risk of unintended consequences, and that's why we've got a power in section 11 for the Welsh Ministers to make provision about the conduct of recall polls and the consequential and transitional power in section 23 you've already mentioned. They're precisely to ensure we have safeguards against any unintended consequences arising from the way that the legislation has been developed.

Adam.

A further supplementary that was, really, sparked by the exchange you had with Alun Davies in relation to this issue of the conduct Order versus the primary legislation. There are jurisdictions like Australia, for example, that have an electoral code. They have qualification. So, for example, there was a proposal by the last Government to actually introduce similar provisions through changes to their electoral code, which has everything in it. Do you see an argument for codification in the context of electoral law so that we don't just have single conduct Orders at every election, but we follow the principles of codification that you've been seeking to—

I'm a huge fan of codification. I have to say, given the amount of law we have that could benefit from codification, I'm not sure I'd start with electoral law. There are several other areas of law that are much, much more complex and distributed. Agricultural law is one of the prime examples, for example. I'm not averse to codifying electoral law, but, given the list of things that the Welsh Parliament and the Welsh Ministers ought to be looking at, it's relatively low down that list.

But the same principle would apply—

That's my personal view, obviously. But, I mean, it would benefit—all laws benefit from codification.

Yes, sure.

Okay?

Thank you.

I was wrong. We have completed our questions. Can I thank the Counsel General for coming along and answering our questions, and her colleagues as well for attending? I will tell you that you will be sent a copy of the transcript to check for factual accuracy. Okay. Thank you. Thank you very much.

Diolch.

In accordance with Standing Orders 17.42(vi) and (ix), I invite the committee to resolve to exclude the public from items 4, 11, 12 and 13. Do Members agree? Yes.

Welcome back to this meeting of the Legislation, Justice and Constitution Committee.

Item 5 is instruments that raise no reporting issues under Standing Order 21.2. The Council Tax (Administration and Enforcement) (Amendment) (Wales) Regulations 2025. These regulations amend the Council Tax (Administration and Enforcement) Regulations 1992 by introducing changes to the administration and enforcement of council tax collection. These regulations ensure that a reminder notice and a final notice must always be issued when a council tax instalment is missed before enforcement action can be taken, and they set out when a final notice must be served, when the taxpayer becomes liable for the annual balance, and when a billing authority may apply for a liability Order. Senedd lawyers have identified no reporting points. Do Members have any—? Okay.

Affirmative resolution instruments, the Agricultural Subsidies and Grants Schemes (Appeals) (Wales) (Amendment) Regulations 2025. These regulations amend the Agricultural Subsidies and Grants Schemes (Appeals) (Wales) Regulations 2006, updating procedures for appeals related to agricultural subsidies and grants in Wales. Senedd lawyers have identified no reporting points. Do Members have any comments? No.

Instruments that raise issues to be reported to the Senedd under Standing Order 21.7. 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. These regulations update the code of practice issued under section 145 of the Social Services and Well-being (Wales) Act 2014, requiring local authorities to comply with its provisions when delivering social services. They introduce the lesbian, gay, bisexual and transgender financial recognition scheme as a form of capital to be fully disregarded in financial assessments for care and support, reflecting changes made by the 2025 amendments. Senedd lawyers have identified nine reporting points, so I pass it over to Jen.

Thank you, Chair. The report notes that the committee previously considered this code at its meeting on 16 June, where 30 reporting points were identified. So, the code was withdrawn and it's now relaid, but there are some outstanding issues that remain, as set out in the report. One point highlights that the revised code doesn't include wording that the Welsh Government's original response to this committee's previous report confirmed would be included. A point is identified regarding the inconsistent use of terminology, and five points relate to issues between the English and Welsh texts. Finally, the report also notes that a three-week consultation has now been undertaken in relation to this code, as required, and that no responses were received. So, a Welsh Government response is awaited in relation to the points identified in the report.

Members, any comments? Are we happy to agree the reporting points? Yes. Thank you very much.

Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. Made negative resolution instruments, the National Health Service (Optical Charges and Payments) (Amendment) (No. 2) (Wales) Regulations 2025. These regulations amend the National Health Service (Optical Charges and Payments) Regulations 1997 to increase the value of optical vouchers from 1 April 2025, with transitional provisions for vouchers issued but not used before that date. Senedd lawyers have identified two technical and two merits reporting points. A Welsh Government response has not yet been received. Firstly, I pass over to Jen from our legal team.

Thank you, Chair. The first reporting point notes that the regulations have retrospective effect, but the authorising enactment doesn't give express authority for this. This is because the regulations came into force on 11 November, but their effect is backdated to 1 April. The explanatory memorandum does explain the reasons for this, but, as this issue arose in similar regulations earlier this year, the Welsh Government is asked to confirm how it intends to avoid having to repeat this in the future. The second technical point notes that the new Schedule in the regulations that are inserted into the National Health Service (Optical Charges and Payments) Regulations 1997 refer to the 2006 Act, but no indication is given as to which 2006 Act it refers to. The two merits points note that the 21-day convention was not adhered to for these regulations and also that no public consultation was carried out.

Thank you. Any Members got any comments? No. Are we happy to agree the reporting points? Yes.

The Bathing Water (Amendment) (England and Wales) Regulations 2025. These regulations amend the 2013 bathing water regulations by removing automatic de-designation of bathing waters after five years of poor classification and introducing feasibility tests for water quality and safety. They also provide for adaptive local management of the bathing season and modernise regulatory practices. Senedd lawyers have identified one technical reporting point. A Welsh Government response is not required. Jen, over to you.

Thank you, Chair. The point simply notes that the Order has not been laid bilingually, as it is also subject the scrutiny by the UK Parliament.

Are we happy with that reporting point? Yes.

Affirmative resolution instruments. The Agriculture Support Schemes (Eligibility, Enforcement and Appeals) (Wales) Regulations 2025. These regulations set out a framework for the Welsh Ministers to provide agricultural support in Wales, setting out eligibility criteria, conditions and mechanisms for enforcement and appeals. Senedd lawyers have identified five technical reporting points. A Welsh Government response has still not yet been received—

That's right, Chair.

Jen.

Thank you, Chair. One of the technical points notes an inconsistency between the Welsh and English texts. The remaining four relate to the need for further explanation from the Welsh Government regarding investigations and decisions taken by the Welsh Ministers, specifically in relation to whether refusing an inspection by an authorised person would breach the regulations, and, if not, whether it's appropriate for such refusal to be taken into account when determining what action the Welsh Ministers should take, also whether the Welsh Ministers considered imposing a limit on how long an investigation can take, or placing a limit on how long support can be withheld, pending the determination of such an investigation, and also what constitutes an independent appeals panel for the purpose of the regulations. A Government response is awaited, Chair.

Thanks, Jen. Do Members have any points they want to raise? No. Are we happy to agree the reporting points? Yes.

The Basic Payment Scheme (Tapering, Payment Entitlements and Closure) (Wales) Regulations 2025. These regulations amend the law relating to the basic payment scheme in Wales, introducing a tapering of payments from 2026 until closure on 31 December 2028. They restrict the transfer and use of entitlements, prevent new entrants, and close national and regional reserves. These changes support the Welsh Government’s transition to a new agricultural support framework under the Agriculture (Wales) Act 2023, alongside related 2025 regulations. Senedd lawyers have identified three technical and one merits reporting point. A Welsh Government response has not yet been received. Jen, do you want to go through the reporting points?

Thank you, Chair. The first technical point is a defective drafting point, as the regulations appear to repeal a provision that only applies to Northern Ireland and Scotland. Two other points request further explanation as to the omission of a date from the title of an EU regulation, and also an explanation as to why further consequential amendments haven't been made to the EU regulations that this instrument amends. The merits point relates to the omission in the explanatory memorandum to the regulations of details of a more recent consultation that's been carried out and is relevant to these regulations, where the findings were unfavourable for changes to the basic payment scheme. A Welsh Government response is only requested in relation to the technical reporting points.

Thank you. Do Members have anything to raise and are we happy with the reporting points? Yes. Thank you very much.

Item 8, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3, previously considered. The Health Impact Assessment (Wales) Regulations 2025. Members are invited to formally note a letter from the Cabinet Secretary for Health and Social Care in response to our October letter. The response from the Cabinet Secretary reiterates that the resource demands of Brexit and the pandemic, alongside engagement with stakeholders, are the primary reasons for the delays in laying the regulations under the Public Health (Wales) Act 2017. Do Members have any comments before we move on to the next item? All right. There are no comments.

The Land Transaction Tax (Modification of Special Tax Sites Relief) (No. 2) (Wales) Regulations 2025. The committee considered this instrument at its meeting on 10 November and laid it on 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 from the Welsh Government response?

Thank you, Chair. Just to note that the issue here related to a lack of clarity in terms of the time of day at which the regulations come into force. The Welsh Government's response clarifies that the text of the regulations will be amended prior to making to provide further clarity and consistency on this.

Thank you. Moving on to the Land Transaction Tax (Modification of Special Tax Sites Relief) (No. 3) (Wales) Regulations 2025, The committee considered this instrument at its meeting on 10 November and laid it on 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?

Again, the issue here is related to the time at which the regulations come into force. The Welsh Government has confirmed that there was an oversight in the drafting, and although it doesn't consider that would affect the operation of the regulations, the oversight will be rectified prior to the regulations being made.

Thank you.

Item 9, notifications and correspondence under the inter-institutional relations agreement—correspondence from the Welsh Government on meetings of inter-ministerial groups. We have a number of notifications this week of inter-ministerial group meetings taking place. Firstly, the Deputy First Minister informs us of a meeting of the Net Zero, Energy and Climate Change Interministerial Group, which took place on 21 October 2025. He's also issued a written statement detailing the discussions. Then we have a written statement by the Minister for Children and Social Care, who chaired the British-Irish Council early years work sector ministerial meeting on 6 November. Finally, the Inter-Ministerial Group for Justice will meet on Thursday 11 December to discuss prison capacity, court caseloads, legal aid, digital innovation, and approaches to violence against women and girls. An update will follow after the meeting. Do Members have any comments? No.

Item 9.2, correspondence from the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs on the Biocidal Products (Data Protection Periods) (Amendment) Regulations 2025. The Deputy First Minister informs of his intention to provide consent to the Secretary of State to make the Biocidal Products (Data Protection Periods) (Amendment) Regulations 2025, which will extend data protection for certain biocidal product substances from 31 December 2025 to 31 December 2030. This extension is to prevent companies from withdrawing important substances from the market that could negatively affect sectors like pest control, transportation and water treatment, and potentially increase public health risks. The Deputy First Minister states that, on this occasion,

'it is considered appropriate for the Secretary of State to legislate on a GB-wide basis, as Welsh Ministers do not have the powers and a GB-wide approach ensures timely implementation and policy continuity.'

The regulations are expected to be laid before the UK Parliament on 26 November. Do Members have any comments? No.

Correspondence from the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs: the Phytosanitary Conditions (Amendment) (No. 2) Regulations 2025. The Deputy First Minister informs us that he has given consent to the Secretary of State to make the Phytosanitary Conditions (Amendment) (No. 2) Regulations 2025. These regulations update the lists of regulated plant pests, introduce or amend protective measures against high-risk pests, deregulate certain pests based on new evidence and make technical corrections to ensure consistency and effective enforcement. The regulations were laid in the UK Parliament on 7 November. Do Members have any comments? No.

Correspondence from the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs: independent inter-governmental relations secretariat annual reports. The Deputy First Minister informs us that the independent inter-governmental relations secretariat has published annual reports covering inter-governmental engagements, agendas and resolved disputes for the periods covering 2022–23 and 2023–24. The reports have been checked for factual accuracy by the Welsh Government. The Welsh Government has previously published its own reports on inter-governmental relations covering the same periods. Do Members have any comments? No.

On to item 10, papers to note. Correspondence from the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs: Environment (Principles, Governance and Biodiversity Targets) (Wales) Bill. We have a number of items concerning the Environment (Principles, Governance and Biodiversity Targets) (Wales) Bill, including, in particular, the Government’s response to our report. Do Members have any comments? No.

Correspondence from the Cabinet Secretary for Education: the Healthy Eating in Schools (Nutritional Standards and Requirements) (Maintained Primary Schools) (Wales) Regulations 2025. The Cabinet Secretary’s letter informs us of the forthcoming 2025 regulations, summarising the consultation findings and outlining key changes to nutritional standards for nursery and primary schools in Wales. The letter also offers committees a technical briefing on the new regulations once they have been laid in December, and describes ongoing work to review secondary school provisions in the future. Do Members have any comments? No.

As agreed earlier, at item 3, we now move into private session for the remainder of today’s items.