Legislation, Justice and Constitution Committee

Welcome back to today's Legislation, Justice and Constitution Committee meeting. Item 4 on today's agenda is an evidence session on the Senedd Cymru (Electoral Candidate Lists) Bill, and I'd very much like to welcome Jane Hutt MS, Trefnydd and Chief Whip, and her officials. Would you like to introduce yourselves, please?

I'm Anna Hind. I'm the senior lawyer on the Senedd reform Bill—sorry, on the electoral candidates Bill.

Thank you very much.

Will Whiteley, deputy director for Senedd reform in Welsh Government.

Excellent. Thank you very much.

So now we will proceed straight to questions, and I am asking you questions to begin with on general matters. So, to begin with, please can you explain why a draft Bill was not published for consultation, given the constitutional importance of the legislation?

Thank you very much, Cadeirydd. I'm really pleased to be in front of the committee this afternoon. You will recall, of course, the special purpose committee report, ‘Reforming our Senedd: A stronger voice for the people of Wales’, and that was published back in May 2022, and that made recommendations for policy instructions for legislation to be developed and to be introduced and, importantly as well, in terms of the timescale, that those reforms should be in place by the 2026 Senedd election, and indeed the Senedd voted in favour of endorsing that report. Then that was part, as you know, of the programme for government commitment and co-operation agreement. So, in terms of draft Bills, I think about 20 per cent of our Bills start as draft Bills, but I think the fact so much work had been done, policy instructions and timing, meant that we did not feel it was necessary to produce a draft Bill.

Okay. Thank you very much. And are you satisfied that the Bill is within the Senedd's legislative competence?

Yes, I am satisfied. Based on all of the information available to me, I'm of the view that the Bill is within the legislative competence of the Senedd. I've obviously given evidence to the Senedd Reform Committee on this Bill. The Bill's purpose is a more effective Senedd, and I think, again, it's very important to say that the Bill's been through the usual processes and checks within the Welsh Government, and, as I said, I've reached the view that it would be, the Bill would be, within legislative competence.

Thank you very much. I'm going to bring in Alun Davies here.

On what basis have you reached that view? Because, clearly, it touches on the issues of equal opportunities, which are reserved.

Well, I don't think that the Bill, that there is a purpose—there isn't another purpose—for equal opportunities. This is about the purpose of a more effective Senedd, and this is key in terms of recognising that this is about a more effective Senedd, as really evidenced in the special committee’s reform report, as I’ve already mentioned. I don’t consider that there’s another purpose of equal opportunities, but, of course, in terms of equal opportunities, the effects of a provision may be relevant, but they’re not themselves its purpose. I think it’s quite useful, actually, to look at this issue about the equal opportunities purpose, because, if you look at the tests laid down in the Government of Wales Act 2006, it says that the question whether a provision of an Act of the Senedd relates to a reserved matter is

'determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.’

The Bill’s purpose is a more effective Senedd, which is sought to be achieved through greater gender balance amongst its Members.

But it also—. That is an incomplete, if you don't mind me saying, quotation from the Government of Wales Act, of course, because what the Government of Wales Act goes on to discuss is the effect of the legislation, and there is also a test about modifying UK legislation, and that no purpose, no clause, of an Act of the Senedd will be lawful if it modifies an Act of the UK Parliament in a reserved matter. This clearly does that, and whilst I recognise what you're saying about the purpose of the Bill, it clearly has an effect on equal opportunities legislation and on the reservation.

Well, I don't consider that the Bill breaches the restriction on modifying the law on reserved matters; I have quoted from GOWA 2006. But also I would say—. This also relates specifically to section 104 of the Equality Act 2010—you mentioned equality legislation—I don't consider that the Bill breaches section 104 of the Equality Act 2010. And I think that's important, just to recognise that this is very much part of a package of all the reforms in terms of Senedd reform, including, of course, our Senedd Cymru (Members and Elections) Bill that we're considering tomorrow at Stage 3. It has the purpose of making the Senedd more effective for and on behalf of the people of Wales.

Now, clearly, any effects on equal opportunities in terms of that purpose, general purpose, are incidental. They're the means to the end of a more effective Senedd, not an end in itself. So, I don't consider the Bill breaches the restriction on modifying the law on reserved matters, and I think it's important that we look at this in terms of that clear understanding that it doesn't breach the restriction, and also the fact that we do believe that the Bill would operate separately from but alongside section 104 of the Equality Act, and generally does not prevent that section from continuing in force without conflict.

But the provision has more than one purpose if one of those purposes is greater than a loose or consequential connection with a reserved matter. Now, one of the issues you've got with reserved matters, of course, is that the equal opportunities reservation does have some areas where this place may legislate and those are carved out of the legislation. But one of the issues that is explicitly on the face of the reservation is that of regulation, and this clearly creates a process of regulation; it does nothing else, in fact, as a Bill, than to create a process of regulation. And therefore, it clearly falls foul of the reservation that exists within GOWA.

Well, I've given my clear advice—

So, how do you tackle that then?

—that has been given to me, the fact that there isn't that—. The main purpose of the Bill is a more effective Senedd, and I've commented on the fact that there could be incidental equal opportunities effects on it. They're not in themselves its purpose, and of course we'll go on, I'm sure, to discuss the Order in which we will look to subordinate legislation, but Anna, would you like to come in here to strengthen the point, as a senior Government lawyer?

I'd agree with everything the Trefnydd said. The test is whether it relates to the reserved matter, and, as you've identified, the equal opportunities matter. But then how we look at purpose, it's 108A(6), and it's the effect of the provision amongst other things—having regard to the effect of the provision, amongst other things. So, as the Trefnydd said, the effect is relevant in determining purpose, but it is not the most relevant thing. The most relevant thing is the purpose, and I think we talked in the Senedd Reform Bill Committee previously about how the courts have looked at this, and that what's one of the very important things is the subjective purpose of those introducing the Bill, and the subjective purpose of those introducing the Bill is about a more effective Senedd, along with the package of reforms that the other Bill looks at as well.

And so the position is, as the Trefnydd has said, that we don't consider there is a secondary purpose. There is a single purpose for this Bill of a more effective Senedd, and therefore any impact on equal opportunities is no more than incidental, and therefore doesn't amount to 'relating to'.

I think it's very difficult to argue that this is incidental. Have you taken account of the For Women Scotland v. the Lord Advocate and Scottish Ministers decision of the Inner House of the Court of Session?

I don't know. I don't think we have—

I'm asking—. I was thinking your lawyer might be able to answer.

Anna, do you want to follow that up?

Yes, we've taken account of it, but again—

So, why do you think that applies but this Bill is different?

Because they accept—. They said their purpose was equal opportunities. That's the reality. The purpose of their Bill, and they were relying on a—. As you've indicated, much as we do, they have slices of competence within equal opportunities, and they were relying on one of those slices of competence, and their asserted purpose was it was equal opportunities, but within that slice of competence. And that's simply not the case here; we're not doing the same thing and our purpose is not that.

[Inaudible.]—is to do the same thing, isn't it?

No.

No. I mean, I think it is important to look at our statement of policy intent, and particularly in terms of the statement for subordinate legislation, which makes it very clear the purpose of the Bill, within that package of reforms, is to deliver on the recommendations that we approved as a Senedd, in June 2022, to make Senedd Cymru

'a more effective legislature for, and on behalf of, the people of Wales.'

The aim is to ensure that the Senedd is broadly representative of the gender make-up of the population,

'in particular with regard to the representation of women.'

And I'm sure that, Alun and Members and Chair, you have seen the legal advice that's come in as well, through a call for evidence.

Yes.

I think that legal advice is very helpful in terms of addressing the issue of competence.

Okay. Thank you very much. Sam Kurtz will come in after my last question now and probably delve into that a little bit more, so thank you. I suppose, following on, then, from what you've said, that you don't believe that this is something, then, that you need to consult with the UK Government about, because, in the reform committee, which I'm also a member of, in March, you said that there's no need to engage with UK Government on this matter. However, in the media, it was reported that the Secretary of State for Wales, David Davies, was going to write to the Welsh Government about the Bill. So, could you let us know what discussions you've had with the UK Government in relation to the Bill, before and after it was introduced, and what was the outcome of those discussions?

Well, thank you for that question, and, yes, I'm obviously very much aware of the exchange of correspondence, as it is now, between the Secretary of State for Wales and the First Minister. Now, the First Minister has responded to the Secretary of State's letter, and I'd be very happy to provide a copy of that letter, if the committee would find that of interest.

Thank you.

But also, just to say, because there was an offer of a meeting between our officials, the First Minister has replied to say he'd be happy for our officials to meet to discuss the Bill. But I think the important thing is that it's at the appropriate time in the future, and that's certainly after committees have actually completed their Stage 1 scrutiny of the Bill.

Okay. So, just to clarify, though, this is something that you didn't reach out to the UK Government to discuss; they came to the Welsh Government after seeing that this was being proposed.

Well, we have engaged, as officials do, prior to any legislation. We've engaged with the UK Government departments on the introduction of any Bill, but specifically on this Bill, I think, Will, it's right to say the Ministry of Justice and the Information Commissioner's Office—those are very specific to the nature of the legislation—but not specifically to the Secretary of State for Wales.

Okay.

Yes, just to confirm, in the preparation of the impact assessment, specifically the justice impact assessment and the data protection impact assessment, we engaged with the Ministry of Justice and the Information Commissioner's Office, to ensure that they were content with the impacts, as we saw them. But, as the Trefnydd has said, we didn't engage with the UK Government on matters of competence, prior to introduction.

Okay. Thank you very much. Sam Kurtz.

Diolch, Cadeirydd. Good afternoon, Trefnydd, and colleagues.

Good afternoon.

What assessment has the Welsh Government made of the risk of the Bill being referred to the Supreme Court?

Thank you for that question. Actually, this is not the time when a referral to the Supreme Court needs to be considered. The moment, as I'm sure you're aware—

No. Have you considered that it could be brought forward?

Well, as I said, it's—. The moment for us to consider this is when a Bill has—. When it can be considered is when a Bill has passed and then final provisions are known. And, as you know, only the Attorney General and Counsel General can refer a Bill to the Supreme Court, and we don't want to speculate about their view. But it would be at the relevant time.

So, if you've not considered that, why have you split this Bill with the Senedd reform Bill?

Clearly, it's important that this is a part of a whole package of Senedd reform that we're taking forward, and—

So, why not keep them together?

Well, this was the judgment, in terms of our Government legislative advice, that we should have two separate Bills.

And what was the advice to split them based on?

Well, I think it was based on the fact that we needed to make sure that the main Senedd reform Bill was able to progress at pace, as it has, and we'll be hopefully moving forward to Stage 3 tomorrow. But, Will, do you want to—? You were very involved at that stage.

Yes, just to say, obviously, as the former First Minister said—. I think it was in June of 2023 when he announced that the Bills would be taken forward separately. There was a recognition, given the nature of this Bill, or rather the provisions within this Bill, that there would be those that may seek to challenge it. It was in response, actually, to one of the special purpose committee recommendations, obviously, to not put the main reforms and the delivery timetable for that ahead of the 2026 Senedd elections in any way at undue risk. So, it was in relation to that.

So, on the First Minister's comments there, that some may wish to challenge this, isn't that then contradictory, Trefnydd, to what I've asked around the Supreme Court challenge, in that, no, you haven't been looking at a potential challenge of this Bill in the Supreme Court, if the previous First Minister said that there could be those who wish to challenge this?

I mean, I answered your question by saying that this is not the moment when we would consider whether a referral to the Supreme Court is likely to take place. It is not the time. It is not the moment for it. But, yes, as Will has said, and the First Minister, we need to make sure that our whole package of reforms is moved forward. Clearly, there is legislation—not just this legislation, but past legislation—where there is perhaps more likelihood that a Bill could be challenged. I'm very much mindful of that in terms of the need for our primary and secondary legislation to be robust in content and drafting, and also that we have full consultation.

I think I would say, Chair—you're a member of the Senedd reform committee—it has been incredibly useful to have this whole parallel work to be done on the scrutiny of this very important Bill, and that we have been confident, as I said, in terms of the fact that this is in competence, that the Bill is in competence, but, clearly, it's been well tested, hasn't it? I referred to the legal opinions submitted by professional consultees, and was very impressed, particularly with the legal opinion of Professor Thomas Glyn Watkin KC. But recognising that this—. I think, Chair, we've been described as 'groundbreaking'. This is being looked at across the world, and we need to give it the attention that it deserves in terms of that specific focus. And I do say again, moving forward in this way with a Bill of this kind, as part of Senedd reform, was passed by the Senedd in June 2022, and it goes back to the special purpose committee report. It goes back to the expert panel. And I know you've had evidence from all of the academic and legal advisers in terms of other committees of course, but, for this one, I hope that you will recognise particularly the legal opinions submitted by professional consultees.

So, looking at the Secretary of State for Wales and his potential powers under the Government of Wales Act on prohibiting the Llywydd from submitting a Bill for Royal Assent, have you any concerns about that? Has that been raised within Government discussions around this Bill?

Well, I think it's important, as I said, that the First Minister has responded to his letter and that he has agreed that our officials should speak to each other when we get to that point. But it is not appropriate at this stage. It's only after a Bill is passed where the Secretary of State could exercise such a function. We can't speculate what his decision would be at the relevant time.

Okay. Can I ask, then, with regard to what assessment the Welsh Government has made of the risk of individual legal challenges and their potential disruption to Senedd elections, should the Bill be passed and enacted and not referred to the Supreme Court?

Well, obviously, we want to make sure that our legislation, as I said—. We recognise that there could be challenge, and that that could be, of course, as you say, individual legal challenge. But that's where I think I've mentioned the fact that our primary and secondary legislation must be robust and also subject to consultation, but I think also that we do need to look at implications for implementing this legislation, and that's why we've got such a close engagement, haven't we, Will, with all of the stakeholders, particularly those involved in managing and running elections, to identify and test out and also to see whether such challenges could be made. But, you know, at this point in time, we don't see that this is likely. Anything else, Will?

Well, only, I suppose, to make the broad point that all primary legislation passed by the Senedd, all secondary legislation made by Welsh Ministers, may be subject to challenge—that's the nature of it. And, obviously, if challenge does come, that can have implications for the implementation timetable. We acknowledge that. I mean, that's the case for all legislation and it's the same here.

But the impact would be much broader, wouldn't it, because it could call into question the whole 2026—? If this is brought forward ahead of the 2026 Senedd election, then it could call into question the whole Senedd election that takes place in 2026, could it not, if it's challenged?

I don't think so. Anna, do you want to respond to that?

I think—[Inaudible.]—if that scenario arose, then advice would be given to the Trefnydd about what steps could be taken in order to mitigate those risks of disrupting the election.

So, there is an opportunity that a challenge could disrupt the result of the Senedd elections in 2026.

If this were brought in before that, and, obviously, the aim is to bring this in for 2026, but, obviously, there are a lot of steps along the way. In particular, you'll know that the commencement of this is by Order, so that, should there be challenges, there are steps that can be taken; it's not automatic commencement. So, there are steps that could be taken to protect the election if that situation arose.

Okay.

But I think it is important to say, you know, we've looked at this in detail in terms of the possible impacts. Obviously, Alun's come up with the broader issue about competence and referral, but, I mean, this is why we have such close engagement and preparation, and, indeed, there will be consultation on secondary legislation to identify whether there could be any—. As with all legislation, as you said, Will, there can always be examples where there could be individual legal challenges, but I can't see how, quite apart from taking things a step at a time, as, Chair, we're doing, in terms of progressing with Stage 1 of this Bill, and then as it progresses, moving into consultation on the Order.

So, have you looked at clarifying the boundary of legislative competence with a section 109 at all?

Well, I think we've covered that already quite well, hopefully, this afternoon. I do consider that the Bill is within the Senedd's legislative competence, as I've said, but what's good is that you are questioning, and you, as a committee now are considering the Bill—

So, because the Government's analysis—

—and the question of competence. But, also, your consideration, all the considerations, will help inform the next steps and the way forward, but we are very clear that the Bill—. We're very clear that it's within the Senedd's legislative competence.

So, the Welsh Government's analysis is such that it not even entertained the thought of a section 109.

At this stage, I've made my point. I don't think there's anything more to be added to that.

No. Thank you, Chair.

Thank you very much. I'm going to bring in Luke Fletcher now. Thank you, Luke.

Great. Diolch, Cadeirydd. Looking at the human rights elements of this Bill and looking at the explanatory memorandum, there seems to be a lack of detail within that memorandum as to the impact of the Bill on human rights. Why is that?

Diolch yn fawr, Luke Fletcher. We've taken a full assessment of the human rights implications. We're satisfied that the Bill is compatible with convention rights. Of course, you will have seen the fact that we published the equality and human rights impact assessment at the time that the Bill was introduced. So, I think the assessment does cover all the implications and considerations of the matter of human rights.

One of the things I'd be interested in understanding a bit better here is what steps the Welsh Government has actually taken, then, within the Bill to limit the interference of the Bill on human rights. That hasn't come across particularly clearly to me, so I'd be very much interested in your response to that, Minister.

Well, we have, obviously—. In terms of the equality and human rights impact assessment, you will have seen that we have looked at particular convention rights, specifically article 8, the right to privacy; article 3 of protocol 1, the right to stand for election; and, in conjunction with those articles, article 14, the non-discrimination and the enjoyment of convention rights. So, the impacts and potential mitigations to address them, of course we'll consider as we progress through subordinate legislation, as that's developed. But I think the key point really is that the rules in the Bill are clear, the consequences will be foreseeable and proportionate to the legitimate aim of a more representative Senedd, and we also believe that the proposals for the subordinate legislation are objectively justified. But, of course, we always need to be mindful of the need to ensure that there is compatibility with convention rights.

So, looking specifically then at the articles, you mentioned article 3 of protocol 1, which is the right to stand for free election, and then you mentioned article 14 as well, the prohibition of discrimination. The committee has taken evidence over its last few sessions where there has been some concern raised about how they interact with each other. So, do you have any concerns? Do you share those concerns around how article 3 of protocol 1 and article 14 might interact with each other?

Well, I certainly acknowledge that we needed to look at and consider both article 3 and article 14. And I think, just perhaps to say in terms of article 3, that's really important to put on the record, that the point about that is the right to stand. And I think it's important to say to the committee, and it may be very obvious, but I would say here to put it on the record that nothing in the Bill prevents a person from standing. Nothing in the Bill prevents a person from standing. And I think that's crucial. The impact assessment recognises this. And I think, if you look at this, for example, in terms of article 14, the rules may result in people who would have stood not being selected, or it may affect the likelihood of their being elected. As I've said, the conclusion of our assessment is that any interference with this right or any of the rights can be objectively justified.

And I think that's, as you say, bringing the interaction of those two articles together, because the impact on people's rights and parties' rights to stand is not restricted beyond that which is necessary to safeguard a proportion of the more favourable list positions for women, with a view to achieving that legitimate aim of a more effective Senedd by having a more representative gender make-up of the Welsh population. Perhaps I could just say, Chair, at this point, to remind our colleagues and Members, that 51 per cent of the population are women, 43 per cent of our Senedd Members are women, but we only had 31 per cent of candidates at the last election. That's not good enough, is it, in terms of having an effective, representative Senedd that reflects the people of Wales.

Diolch, Cadeirydd.

Thank you very much. I'm going to bring in Alun Davies here. Thank you.

I don't think anybody is concerned about the purpose of having a more representative Senedd, and there are all sorts of conversations that have occurred about that. I think the concern we have here is the methodology being adopted by the Welsh Government. We know that this Bill has been subject to some considerable discussion, debate, and there is no consensus on it being within competence. I think it would be a stretch if the Government were to claim that there is that consensus on competence. And what concerns me, Minister, is that you've repeated today what you've repeated a number of times in front of the legislation committee, that the purpose of the Bill is to create a more effective Senedd, and Ms Hind said exactly that in answering the question on the Scottish legislation, and that's perfectly fair and reasonable. What surprises me, then, is that that's not in the title of the Bill.

I would disagree about there being no consensus on competence. Clearly, we've just discussed that in terms of the earlier questions on the Bill. It's really important this is tested out, as you say, in the questions that you're putting to me today. But I think what I'm going to say is there are a range of views, some of which are very supportive of the Government's position, and you'll see that, as I've already mentioned, particularly the eminent Professor Thomas Glyn Watkin KC, but also other legal—

That's one out of four.

—advice, which is on balance. It's really important that we recognise that that legal advice is looking at the position of comments, and recognise it's finely tested. But I think the important issue here that we're discussing is how the Bill's purpose is to make a more effective Senedd, and that, in terms of the balance, particularly in the long title of the Bill, I think it's very clear that we see this as being taken forward in terms of the Order.

I think also, just to recognise in terms of the explanatory memorandum, I'm sure the committee's looked at this in detail, because as a whole, the explanatory memorandum is extensive evidence as to why this Bill could create a more effective Senedd through greater gender balance. And I think, as I said, I might not have said this before, but, clearly, the point about this Bill is it's a means to an end—the end being a more effective Senedd—and it's very good to see some of the evidence that came through last week to the Senedd reform committee, because that was the very clear evidence that was coming from the majority of organisations that have come forward backing this Bill as a route, as the means to ensuring that we have a more effective Senedd.

Minister, we're not here to discuss the policy side of this. I have no observation to make on the policy side of things in terms of the debate that we're having this afternoon. My concern is about the status of the Bill, and I have significant concerns that this is going to lead to a significant challenge in the courts if we proceed in the way that the Government are currently suggesting. The long title of the Bill is:

'An Act of Senedd Cymru to make provision about the proportion and placement of women on lists of candidates to be Members of the Senedd; and for connected purposes.'

It's not to create a more effective Senedd. That's not what you've placed there in front of the Senedd, so I think in terms of answering the question, I think we need to understand why, if to create an effective Senedd is so fundamental at the heart of this legislation, it doesn't appear at the front, as the name.

I mean, obviously, the long title of the Bill and the Bill itself is there to tell you how you will deliver on your purpose. All Bills do that, don't they? Here's the lawyer; you can—[Laughter.]

Yes, that's the point that we would make, that the long title, the purpose and the way in which we use long titles in our drafting in Wales—and obviously, that is a matter for the legislative counsel when they're drafting—we use those to set out expressly what the Bill does; we don't use them generally to express the purpose of the Bill. And if I could refer to the long title of the other Bill in this package of reforms, the Senedd Cymru (Members and Elections) Bill, the Government's view on that is that that's about a more effective Senedd as well. That's the purpose of that Bill, but it doesn't say it in that long title either. That's

'An Act of Senedd Cymru to make provision about Members of the Senedd and offices held by those

Members; Senedd Cymru constituencies; returning and maintaining Senedd Cymru',

et cetera. I won't read it all. But what it does is it says precisely what each part of the Bill does, so we don't expressly say in there what the purpose is. So, that's why the long title doesn't express the purpose of a more effective Senedd, because we're just saying what it does.

I accept that, but the problem you have is that the second Bill you referred to, the Members and elections Bill, doesn't engage the same reservations and the same competence issues as this Bill does. And I'm not sure the Government helps its case by claiming there is a consensus here, when the Presiding Officer herself has ruled that this is not in competence. So, I'm not sure that helps the Government's case.

But where you are seeking to carve out this competence—and this is why I am very concerned about this legislation—you are seeking to be very precise in terms of the language you use in front of this committee, the way in which you're describing the purpose of the legislation, but what you're not addressing is what the Bill actually is. When that goes to the Supreme Court, I think you're going to have some very, very difficult issues there if you haven't addressed that during the process of legislating. This is an opportunity to do that, I think.

Will, would you like to come in?

I suppose, just in case the committee would find it helpful, it isn't in the long title, but if you were to look at the explanatory notes, which would, of course, sit alongside the Act if passed, then that does, in paragraph 2, quite clearly state that

'The Bill is intended to make the membership of Senedd Cymru...broadly reflective of the gender make-up...This in turn is intended to make the Senedd a more effective legislature for, and on behalf of'—

And that is the problem. Because what you're saying there is that there is more than a loose or consequential relationship between the Bill and a reserved matter, and that, as you've just described, Will, is the heart of the issues that this committee are struggling with, and probably why the Presiding Officer believes that this is not in competence.

If we want to go back to some of—. I hope you will be looking at some of the evidence from external legal advisers. As I said, the evidence that had come from Professor Thomas Glyn Watkin KC, his overall conclusion, is that, although finely balanced, the Bill is within the Senedd's legislative competence. I think it's important to recognise where we've got this external as well as internal, and all of the legal guidance that has been given. But, please, can colleagues look at the whole of the explanatory memorandum? Because as Will has outlined, it gives a clear case. It is what it says: an explanatory memorandum as to why we feel this Bill is within competence. And it's been explained that of course it doesn't appear in the long title, because the Bill is about how we would deliver on that legal case.

Just to make the point, though, whether the Bill is in the Senedd's legislative competence ultimately can only be decided by the Supreme Court. So, that's not what we are going to be commenting, of course. But I think the questions that we're asking are trying to assess the risk, and, at the moment, what I'm hearing is that you don't think that there's any risk.

No. We've recognised that any Bill, and this is a Bill that is a groundbreaking Bill, it is trying to develop a new path to a more effective Senedd, and clearly we understand that it is being contested, it's scrutinised. But we're not ruling that out at all, that's why we're here today.

Okay, wonderful. Alun, are you—?

I'm fine.

Thank you very much. So, I'm just going to ask a question, then, about the balance between the detail on the face of the Bill and the delegated powers. Do you consider that the Bill strikes the right balance between providing sufficient detail and the delegated powers to the Welsh Ministers, and if so, why?

Well, of course, the approach we've taken in the Bill is really very much in keeping with existing ways in which we separate primary and secondary legislation, particularly governing Senedd elections, which, mainly, are between the Government of Wales Act and the conduct Order. So, we recognise that there are going to be further changes required to the conduct Order to give effect to this Bill, but it is in keeping with existing separation between those primary and secondary legislation arrangements for Senedd elections.

Thank you. My next questions are looking at section 1, so the proportion and placement of women on lists of candidates to be Members of the Senedd. So, what consideration did you give to including an expressed definition of 'woman' and 'not a woman' on the face of the Bill? And does the lack of definition make the legislation less precise or increase the risk of legal challenges to the election process, in your opinion?

Thank you, Chair. We considered several options in developing a Bill, and not including a definition is our preferred option, because the Bill is not about defining a woman. The Bill's not about gender recognition, and, indeed, it's not uncommon for legislation to use the term 'woman' without a definition. So, I don't think that it could lead to particular or increased risk of challenge, because even if the Bill contained a definition of 'woman' or 'not a woman', the precise meaning of it would still be, ultimately, for the courts to determine.

Thank you. Do you foresee any unintended consequences arising from not including a definition of 'woman' and 'not a woman' on the face of the Bill?

That's where it's important that we have, in section 2, a review mechanism. Because, obviously, in terms of review, unintended consequences are then—. Once you implement a Bill or any legislation, you have to learn from it and then the option for a review under section 2 can be considered. But, obviously, we'd hope to get through the first election when the quotas would apply and then you could consider that.

Is there a possibility that definitions could be included in subordinate legislation made under the Bill?

No. The Bill doesn't provide a power for any meaning or definition in that respect to be provided in the conduct Order or other secondary legislation.

Thank you very much. I'll hand over to Luke Fletcher again now.

Diolch, Cadeirydd. Just following on from some of the questions that Sarah Murphy put there, with the candidate statements declaring whether they are a woman or not a woman, how will that actually work in practice?

We are talking about candidate statements, as you're aware. What we will be asking for in the conduct Order will be for mandatory statements. We will be setting out the terms of the statement in the conduct Order. We are, at the moment, talking with colleagues and stakeholders about the format of the statement, but there is no issue, as far as we're concerned, in terms of the statements about defining a woman or not defining a woman. It's not the case that it becomes an issue in other circumstances when we're using this definition. But I would want to say that it's important that we do look, in terms of the candidate statement and the conduct Order, at issues about privacy and tighter rules around access to home addresses, et cetera, which I'm sure this committee will be concerned about. It's not strictly a legal issue, it's a policy issue, but I think this is important in terms of the candidate gender statements. But I don't know, Will or Anna, do you want to say anything else on this point?

Really just to reiterate that the way it's been set out in the statement of policy intent is to fit into the way the existing nominations process works. So, with all the information that candidates are already required to bring forward, it will be in the same vein as that. And as the Minister has said, there are some policy considerations to be given to precise details, but a lot of that is set out in the statement of policy intent.

Putting that to one side, then, and just thinking generally about the candidate statement in its whole, what sanctions are there if candidates make false statements? What would happen?

There is not going to be any criminal offence for making a false or incorrect statement. I think it's really important that political parties have been giving evidence to the Senedd reform committee about what they feel about this Bill, because it's going to be very much up to political parties to make sure and take care that their nominations comply with the rules. Obviously, this is something that they undertake anyway, in terms of checks in terms of due diligence. So, it is candidates and political parties that should be prepared to take responsibility for accuracy of statements, and they will, of course, have a clear interest in statements being accurate, because they would be concerned about reputational damage and challenge. But ultimately, there is a route to challenge, which is through an election petition, and this Bill doesn't change anything about the process or grounds for bringing an election petition to challenge an election.

Diolch.

Could I perhaps just say also that a returning officer could reject a nomination if the candidate's particulars are not as required by law? But that applies at the moment in terms of elections.

Thank you. Sam Kurtz.

Diolch, Cadeirydd. Section 1 of the Bill inserts a new section 7B into the Government of Wales Act 2006. How will non-compliance with this new section be enforced?

Thank you for that question. All the functions of the constituency returning officers and, indeed, the new national nominations compliance officer will be provided for in an Order under section 13 of the Government of Wales Act, as I've already referred to—it's the conduct Order—but also, the statement of policy intent, which you will have all received with the Bill, sets out the details of the provisions we intend to make in the Order.

Why, then, are you proposing to include so much detail in a section 13 conduct Order, rather than placing it on the face of the Bill?

I think this goes back to the earlier points that we need to have flexibility, we need to understand the detail. It is a new process. It's a new process for our returning officers. We will have our new national nominations compliance officer. It's good that there's plenty of detail laid out in the statement of policy intent for subordinate legislation, as we published when we published the Bill, and it is the right balance. It's the right balance between what's on the face of the Bill and, indeed, what will come through subordinate legislation on the Order.

Were there any barriers to putting more detail, or was it just a decision that you felt it was the right balance? Were there any barriers to putting more detail on the face of the Bill?

We've been through this question already, I believe, this afternoon, but if anyone wants to add to what I've said.

The only barrier, I think, we were mindful of was the current balance of primary and secondary legislation, GOWA and then the conduct Order. Obviously, the national nominations compliance officer is a new role, but it will interact, very much so, with constituency returning officers; their functions need to be cognisant of the functions of constituency returning officers. All of that is currently set out in the conduct Order, and therefore we felt it was appropriate that any functions were in relation to the NNCO, and that whole process of compliance checking for the horizontal rules in section 70, were set out there.

So, that would be the reason why the functions of the national nominations compliance officer and constituency returning officer are not placed on the face of the Bill. Diolch, Cadeirydd.

Thank you very much. Just to check, Minister, if we do go over a little bit today, so that we can get through the questions, are you able to stay a little bit longer for us?

Yes. Obviously, it's very important, this hearing.

Thank you very much. We really appreciate it. Before we move on to Alun Davies, on your last point, Thomas Glyn Watkin takes a different view on this, doesn't he? Could you talk us through that?

Who's taking—? Sorry. What did you say?

Thomas Glyn Watkin.

Do you want to answer this, Anna?

On the conduct Order.

Yes, he makes comment on the balance—he thinks the balance isn't appropriate. He thinks there should more detail on it. But I really can't say anything more than has already been said. Both this Bill and the other Bill work within the existing balance of primary and secondary legislation for Senedd elections. So, currently, with the Government of Wales Act, before the first Bill even amends that, there's very little detail about Senedd elections—it just says that you may have candidates. All of the detail of how you get from being selected, right through to election, is all in the conduct Order. The conduct Order is an unusually large piece of secondary legislation, and so it's that balance. And because this Bill fits into that system—. And, as has already been said, the NNCO is a new office that is dependent on the CRO, and the CRO is already in the conduct Order. Those were the practical barriers. If you were to put more detail in the primary legislation, you would have primary legislation referring to secondary legislation, and that's a practical barrier. That's the reason for it. So, whilst we accept that Thomas Glyn Watkin has made that point about balance, those were our reasons for it.

And just to ask as well, as you've referred to, the conduct Order is a very significant and lengthy piece of subordinate legislation—we're looking at over 200 pages, I believe—and that's due to be consulted on in the autumn. What if the Bill is referred to the Supreme Court? What impact will that have on your plans to consult on the draft of the conduct Order in the autumn? Have you considered that?

We are going to consult on the conduct Order, which will be an amendment to the conduct Order for the Members and elections Senedd reform Bill anyway. There'll be a full consultation. This has been discussed extensively with all of the organisations involved with electoral arrangements, hasn't it, Will?

Yes. And just to echo what the Trefnydd has said, the main conduct Order is remaking the existing conduct Order and also taking account of changes that will be brought into effect, if passed, to the Senedd Cymru (Members and Elections) Bill, but also the Elections and Elected Bodies (Wales) Bill. The intention is that, to implement the electoral candidate lists Bill, a second Order would be made to amend the first, and insert any provision into the main conduct Order. So, it would be dealt with separately from the main one, but the consultation timescales and timetable for that are not dissimilar in terms of consultation, and then, obviously, making through, mindful of the Gould convention and all legislation needing to be in place six months prior to the Senedd election.

Thank you very much. Alun Davies.

Thank you. So, you're essentially creating a conduct Order at the moment that doesn't include reference to this current Bill.

There is already a conduct Order for our Assembly elections—you know that—through GOWA.

Well, there's been one in the past, but there's going to have to be a different conduct Order.

There's one that's going to be consulted upon for the Members and elections Bill, and this would be an amendment to that conduct Order. So, it'll be very much following through the consultation. Also, on this balance between primary and secondary legislation, this is very much reflected in the Assembly and elected Members Bill anyway that the conduct Order does deal with much of the detail about implementation, as this will for this Bill.

I suppose just to add to that, the conduct Order commitment has already been made by Ministers to remake it in full and bilingually for the first time. So, that project was happening in any event. Obviously, taking account of the Members and elections Bill and the elections and elected bodies Bill needs to be done if the Senedd passes it, and there's no presumption being made there, of course. So, that conduct Order is required for the Senedd election. That's the approach that we're taking to that.

I understand that. My conclusion from those remarks is that there is a conduct Order currently under development, being led by the Counsel General, that will be laid in front of this committee, and that conduct Order will be for the 2026 elections but will not, in the first instance at least, include reference to this Bill that is currently under consideration.

Not in the first instance, but then depending on how this progresses, we will then amend it.

So, there will be a conduct Order in place, because it's clear to me that the Bill we're debating this afternoon will be subject to—

Yes.

You say 'Yes'; you don't know what I'm going to say yet. It's going to be subject to challenge and will undoubtedly go to the Supreme Court. And so my concern is the disruption to the development of the conduct Order, and therefore to minimise the disruption to the 2026 elections by a referral.

The conduct Order for the Members and elections Bill is going to proceed.

That's what I wanted to hear, as it happens. So, we will have a conduct Order. The Chair has outlined some concerns that this committee will, I have no doubt, share about the breadth of the powers being taken by Government on these matters. You're familiar with that coming from this committee, but it is important that the Senedd also has an opportunity to shape that conduct Order and is not just given it as a 'take it or leave it' conduct Order. And I hope that the Minister will—although it's not her responsibility in this instance, it's the Counsel General's—be able to give us that assurance this afternoon.

The conduct Order for the Members and elections Bill is the responsibility of the Counsel General, and it will be subject to consultation. Will is the head of the Senedd reform Bill team, so we can assure you that that's the case. As this Bill progresses, then that will be subject to a separate consultation in terms of amending that conduct Order.

If you say—. Thank you; I'll just finish with this bit. You must have, Minister, given significant consideration to what if this Bill doesn't proceed. Because there is no consensus, and let's not pretend there is, on this matter of competence. It's what is troubling this committee, it's what's troubling the Llywydd, it's what's troubling many people, legal minds, who have reviewed it, and—. Because one person takes a particular view, it doesn't mean that everybody else does, as we've seen from our evidence. What is plan B, Minister? Do you have an alternative view to how you would take this forward, if you are found to be acting outside of competence?

Well, I do feel that we've answered all these questions earlier on, Chair, this afternoon. We believe it's not one person; this is the programme for government and the co-operation agreement, the special purpose committee—we voted on that we should proceed with the gender quotas route. This is what we're doing, we're bringing the Bill forward. So, it is not one person's view.

Well, I was—

It's not one person's view in terms of the legal advice, in terms of the advice the Government has received, or we wouldn't be here, Alun, would we—

All right. Fair enough.

—if it was the case. But, obviously, I think, just in terms of the importance for this afternoon, the conduct Order for the Members and elections Bill is on its own, and we will then see how this progresses in terms of whether, then, we can progress with our statement of policy intent for subordinate legislation, which is about the conduct Order, what we'd be consulting on. I also would say I hope you have read all the evidence, Alun, from the Senedd reform Bill, all the evidence from all the organisations, all the academics, all of those—

Minister, this committee is not concerned with policy—

—who have spoken so powerfully in favour of this Bill.

But we're not concerned with policy on this committee; we're concerned with the legal aspects of it, and it's the legal aspects I'm commenting upon.

If I can just bring this back—. Before you move on to the last bit, Alun, but just on the—

I'm through. I'm through.

Okay. No problem. But, just going back to what you said about the conduct Order, so the Counsel General said that the conduct Order would be consolidated, but that does now not appear to be the case. How can that work with what you're describing?

Do you want me to—?

Yes, Will.

So, it is to be consolidated and remade as a new single Order—that is the plan that's in place. But, as the Trefnydd has said, that initial Order, the draft Order, will be consulted on in the autumn and is intended to be made certainly in line with the Gould convention. That, in the first instance, won't include implementation of this legislation. It's to be commenced by Order. Obviously, there will be, subject to the timings around that—. The intention is to implement this for 2026. If we are able to do that, then it will be implemented through a second Order that will amend the first. So, in terms of accessibility, it will ultimately be in a single conduct Order, but it will be given effect by way of an amending Order to the main conduct Order.

Okay. Thank you very much. And I'm going to finish now with a question asking—. So, in the written evidence to the reform committee, Thomas Glyn Watkin KC highlights that the Henry VIII powers in section 3(2)(a) of the Bill, which enable the Welsh Ministers to make regulations that may

'amend, repeal, revoke or modify this Act or any other enactment (whenever passed or made)'—

and he quotes—are 'astonishingly broad'. Why is it necessary to include such broad delegated powers in the Bill?

Anna, do you want to answer that point?

Yes, I can take that one. You'll be aware from being on this committee that those are not unusual powers. Many Bills from this legislature involve those kinds of powers, and, although they do enable us to use secondary legislation to amend primary or secondary legislation, they are nonetheless still curtailed, because they still have to be in consequence of the provisions of the Bill. They aren't just to do anything; it still has to be within the scope of doing something that gives full effect to the provisions of this Bill or is incidental to that and so on. So, although they do appear very broad in what they can do, their scope is nonetheless limited. And they are necessary to ensure that—. Obviously, we hope, always, to do everything we need to to the statute book to make legislation work, but, if we were to miss something or if something becomes apparent when the Bill becomes operational, we have that power, without further primary legislation, to amend what we need to, again, within that limited scope, to give full effect to the Bill.

Thank you very much.

And perhaps we could also just say, you know, it's important that that power's used to ensure quotas fit cohesively with the other Senedd reforms and wider electoral landscape. It's really important that we recognise that, if the power's used to amend primary legislation, it's subject to the affirmative procedure, so that the Senedd always has a role in the making of that legislation.

That's a nice note to end on, so thank you very much. I'd like to thank you all for giving evidence today, and you will be sent a copy of the transcript to check for factual accuracy. And here we will take a short break. Thank you.

Diolch yn fawr.

Hello, and welcome back again to our public session of today's meeting. We have our usual statutory instruments to consider, as well as correspondence that we've received.

So, moving on to item 5, we have instruments that raise no reporting issues under Standing Order 21.2 or 21.3. We have one item under this section today, under item 5.1, which is a made negative resolution instrument. This is SL(6)482, the Education Workforce Council (Additional Categories of Registration and Further Education Teacher Qualifications) (Wales) Order 2024. The Order requires community-based adult learning practitioners and principals and senior leaders in further education institutions to register with the Education Workforce Council. The Order also sets the associated registration fees and includes a requirement for teachers who work within the further education teacher category to hold a specified qualification. Additionally, adult learning practitioners and further education teachers are added to the list of Welsh regulated professionals. Senedd lawyers have identified no reporting points. Do Members have any comments or observations? I can see that's a 'no', so are we happy to agree the reporting points? Diolch.

Moving on to item 6, we have instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. Items 6.1 and 6.2 are made negative resolution instruments.

Item 6.1—we have SL(6)479, the Medical Examiners (Wales) Regulations 2024. These regulations make provision in respect of medical examiners, and form part of the wider reform of the death certification process, with the introduction of a statutory medical examiners system. The Welsh Government say that this instrument puts the role of the medical examiner on a statutory basis and means that there will now be an independent review of all deaths in England and Wales.

Senedd lawyers have identified one merits reporting point and we have also have a written statement by the Cabinet Secretary for Health and Social Care. A Welsh Government response is not required, but do our legal team have any issues they wish to highlight arising from the draft report?

Just to note that the merits point is simply drawing Members' attention to the wider context of these regulations.

Thank you very much. Do Members have any comments or observations? I can see that's a 'no'. So, are we happy to agree the reporting points? Yes. Thank you very much.

And at item 6.2, we have SL(6)480, the Education (Student Support) (Postgraduate Master's Degrees) (Wales) (Amendment) Regulations 2024. These regulations amend 2019 legislation to alter financial support available for eligible students studying postgraduate Master's degree courses in Wales. The current support package comprises loans and grants, and these regulations replace the grants with a loan and increase the maximum support value by a measure of inflation. These changes will apply to new postgraduate Master's students who begin courses on or after 1 August 2024, and Senedd lawyers have identified two merits reporting points. A Welsh Government response is not required. Do our legal team have any issues that they would wish to highlight arising from the draft report?

If I could just draw your attention to the second merits point, the draft report is noting the potential impacts of these regulations, which are set out in the regulatory impact assessment contained in the explanatory memorandum, and, in particular, the regulatory impact assessment notes that the replacement of the grant element of support with a loan is likely to increase a student's debt, which may deter some prospective students from undertaking postgraduate study. So, that's just a point to note.

Thank you. An important point to note. Do Members have any comments or observations? No. Are we happy to agree the reporting points? Diolch.

item 6.3 is a draft affirmative resolution instrument. This is SL(6)481, the Plant Health etc. (Miscellaneous Fees) (Amendment) (Wales) Regulations 2024. These regulations amend 2018 and 2019 legislation, namely in regard to fees for documentary checks, physical and identity checks and importation in relation to plants, plant products and other objects. Senedd lawyers have identified one merits reporting point and a Welsh Government response is not required. So, do our legal team have any issues that they would highlight arising from this draft report?

The merits point is welcoming the inclusion in the explanatory memorandum of a clear explanation of the corrections that have been made to the draft of these regulations that were previously considered and reported on by this committee in March. And the committee has previously written to the Counsel General to ask for this type of information to be included in the explanatory memorandum, so it's positive to see Welsh Government doing this.

Excellent. Thank you very much. Do Members have any comments or observations? No. And, then, are we happy to agree the reporting points? Yes. Thank you very much.

And then moving on to item 7, we have instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3, which have been previously considered by us.

So, item 7.1 is SL(6)477, the Building Safety Act 2022 (Commencement No. 5 and Consequential Amendments) (Wales) Regulations 2024. The committee considered this instrument at its meeting on 22 April and laid its report the same day. Members are invited to note the Welsh Government response to the report, which has since been received. Do our legal team have any issues they wish to highlight from the response, please?

Members may just wish to note that the Welsh Government have agreed with the technical reporting point, which noted a drafting inconsistency, but Welsh Government do not consider that this will cause any confusion to readers. So, we don't have any further comments from a legal perspective; it's not an ideal situation, but, on balance, the meaning of the provision is probably clear enough to the reader.

Thank you very much. Do Members have any comments or observations? No. Thank you.

And, at item 8, we have notifications and correspondence under the inter-institutional relations agreement. So, at item 8.1, we have a letter from the Cabinet Secretary for Economy, Energy and Welsh Language in relation to a meeting of the Interministerial Group for Trade, which took place on 16 April. The Cabinet Secretary states that the group discussed some of the outcomes from the World Trade Organization's thirteenth ministerial conference, as well as the ongoing negotiations with the Gulf Co-operation Council and India. And he states that he will write to inform us of the date of the next meeting. Do Members have any comments that they wish to make? And, if not, we'll note this and move on to the next item.

So, moving on to items 8.2 and 8.3, I suggest we group these together for convenience. We have written statements and correspondence from the Cabinet Secretary for Climate Change and Rural Affairs in relation to the Official Controls (Miscellaneous Amendments) Regulations 2024 and the Official Controls (Extension of Transitional Periods) (Amendment) Regulations 2024. At our previous meeting, we noted correspondence received from the Cabinet Secretary informing us of his intention to give consent for the Minister for Biosecurity, Animal Health and Welfare to make these statutory instruments. These items of correspondence today confirm that consent was given. The Cabinet Secretary states that consent has been given as a result of the agreement on the border target operating model. The regulations at item 8.3 also make England-only provisions in relation to meat preparations, and the Cabinet Secretary informed us that he has made similar amendments for Wales in the Meat Preparations (Amendment) (Wales) Regulations 2024, which were laid before the Senedd on 12 April. Are Members content to note these items of correspondence? If so, we'll move on to the next item.

At item 8.4, we have correspondence from the Cabinet Secretary for Climate Change and Rural Affairs. The Cabinet Secretary informed us of his intention to give consent for the Minister for Biosecurity, Animal Health and Welfare to make the Phytosanitary Conditions (Amendment) Regulations 2024. I hope I've said that right. Yes. The regulations update aspects of the phytosanitary conditions regulations, including preventing the import of pests and regulating seeds that harbour pests, as well as correcting some errors. The Cabinet Secretary states that introducing separate regulations in Wales and England may cause an additional burden on the Animal and Plant Health Agency, business, traders and growers. He further states that

'Regulating on a GB-wide basis ensures a coherent and consistent statute book with the regulations being accessible in a single instrument with no risk of legislative divergence in Great Britain.'

So, are Members content to note this? Okay. If so, we will move on to the next item.

At item 9, we have papers to note, and there are a few items in this section today. At item 9.1, we have correspondence from the Cabinet Secretary for Finance, Constitution and Cabinet Office in relation to the Welsh Tax Acts etc. (Power to Modify Act) 2022. The Cabinet Secretary has offered a presentation by Welsh Government officials to the Finance Committee and to us in relation to essential parts of any future architecture for making changes to Welsh tax Acts. We may wish to discuss a response in private session, but do Members have any initial comments that they would like to make in public? Okay, then we'll move on to the next item.

At item 9.2, we have a written statement by the Cabinet Secretary for Climate Change and Rural Affairs. The Cabinet Secretary provides an update on proposals to introduce legislation to ban the supply of wet wipes containing plastics and single-use vapes. His statement informs us that the intention is for the ban on single-use disposable vapes to come into force in Wales on 1 April 2025, and for the ban on wet wipes containing plastic to come into force by June 2026. Do Members have any comments that they would like to make? If not, I'll move on to the next item.

And then at item 9.3, we have another written statement by the Cabinet Secretary for Climate Change and Rural Affairs. This is an update on the development of a deposit-return scheme, and the Cabinet Secretary makes a joint statement along with Ministers responsible for the development of the scheme in England, Northern Ireland and Scotland. Do Members have any comments that they would like to make? If not, we will move on to the next item.

As agreed under item 2, earlier this afternoon, the committee will now return to private session for the remainder of today's meeting.