Legislation, Justice and Constitution Committee

I'm Dawn Bowden. I'm the Minister for Social Care.

Mike Lubienski. I'm a lawyer from Welsh Government legal services.

Tracy Hull, lawyer, Welsh Government legal services.

Anthony Jordan, head of programme and legislative implementation within the Welsh Government, and the Bill facilitator for this Bill.

Thank you very much. Can I welcome you all to this meeting, and can I start directly with the first question? Are you satisfied that the Bill is within the Senedd's legislative competence, and can you provide us with an update as to whether Minister of the Crown consent has now been received, as referred to in the Llywydd's statement relating to legislative competence?

Thank you, Chair, for that question. As I said when I introduced the Bill, I'm satisfied that the provisions do fall within the legislative competence of the Senedd, subject to Minister of the Crown consent, which I will come on to in a moment. That's the result of the careful consideration of the human rights implications of the Bill, which has supported our view that, where human rights issues are engaged, a fair balance has been struck, in proportionality terms, between the human rights impacts of the aims underlying the Bill and the relevant provisions of the Bill.

Particularly now in relation to the care of looked-after children, what we are seeing is a growing body of evidence that demonstrates that radical reform is necessary to meet these children's needs. We've just really allowed for-profit providers to dominate the market for too long, and the risk to disruption of services across the sector is something that we didn't feel that we could continue with any further. We are seeing large providers carrying significant debts, and we are seeing them still extracting profits of between 20 and 25 per cent from the looked-after children's services sector. So, from our point of view, we feel that this is a proportionate piece of legislation, and it is within competence.

In terms of the Minister of the Crown consents, there is a consequential amendment for which Minister of the Crown consent is required, and the Government has requested this from the Secretary of State. I don't know whether officials have got any update in terms of whether that has been received yet.

It has not been received, but we have had official-to-official confirmation that there is no argument in principle about it, because it puts our health bodies in the same position as analogous bodies in England.

Diolch. Nesaf, Adam.

Diolch yn fawr iawn, Gadeirydd. Rydw i eisiau mynd ar ôl y cwestiwn ynghylch a ydy’r Bil yn gyson â’r confensiwn Ewropeaidd ar hawliau dynol.

Sorry, Chair, I'm not hearing the translation. Apologies, Adam. I'm not hearing the translation, sorry. It was working when we tested it at the beginning.

I'm hearing it now. Are you?

Is it channel 1? Okay, let's try again. I'm not hearing anything at all at the moment.

It still isn't coming through to the Minister.

Okay, yes, I got that. Sorry, Adam.

Mae'n flin gyda fi, Adam.

Popeth yn iawn. Fe wnaf i ddechrau eto, felly. Dwi eisiau mynd ar ôl cwpwl o gwestiynau sydd yn ymwneud â'r cwestiwn o hawliau dynol ac i ba raddau mae'r Bil yn gyson gyda'r darpariaethau yn y confensiwn Ewropeaidd ar hawliau dynol. Rydych chi newydd gyfeirio at y ffaith, yn eich tyb chi, eich bod chi'n meddwl bod bwriadau a darpariaethau'r Bil yn gymesur o ran eu heffaith ar hawliau dynol. Allwch chi roi rhagor o fanylion i ni felly ynglŷn â'r casgliad hynny rydych chi wedi dod iddo fe? Mae'r Llywydd wedi ysgrifennu at y pwyllgor ar sail cyngor cyfreithiol y tîm Seneddol ynglŷn ag adrannau o'r confensiwn sy'n cael eu cyffwrdd gan y darpariaethau. Allwn ni ddechrau gydag erthygl 8, sydd yn diogelu'r hawl i fywyd preifat, cartref, teulu, ac yn y blaen? Allwch chi ddweud wrthym ni sut rydych chi wedi dod i'r casgliad bod y Bil yn gyson gyda'r ddarpariaeth, a hynny o ran ei effaith ar blant a theuluoedd?

Sure. Thank you, Adam, for that question. I think, if we look at article 8, the rights of looked-after children are protected in the Bill's transitional arrangements, which enable for-profit providers to continue to accommodate children in settled placements, and it also allows new placements to be made with for-profit providers, where that's the most appropriate place for a child to reside.

One of the reasons we've got to this point—and I reiterate partly what I said in answer to a previous question—is that the current market is so highly dysfunctional and, in the view of the Welsh Government, is unsustainable in its current form, and that dysfunction in the market has adverse affect on the service provisions in Wales. Consequently, the well-being and life outcomes of looked-after children in local authorities are adversely affected. The Welsh Government has concluded that, because of all of those points that I've made previously, the status quo is not an option.

What we do recognise is that a placement for a child who's looked after by a local authority is a child's home, and they may well be settled and they may have developed positive relationships and attachments to their carers. We also understand the importance of stability for their well-being and educational outcomes. So, where a child is settled and is having their needs met in a placement, then everything possible should be done to maintain that placement. The Bill's transitional arrangements and the provisions in the new section of the Social Services and Well-being (Wales) Act 2014 ensure that local authorities can prioritise and stabilise this for children.

You've directly asked the question, Adam, about how article 8 impacts on all those policy directions, and I'll turn to Anthony, one of my legal officials here, to say a little bit more about that.

Thank you, Minister. Just touching specifically on new section 81A, which will be inserted by the Bill into the 2014 Act, we see that as being crucial to ensuring that local authorities will prioritise stability for children. It should do this by requiring local authorities, when making placement decisions, to meet their duty to safeguard and promote the well-being of the child, which is defined in a holistic manner in section 2 of the 2014 Act, and also by ensuring that the local authority must have regard to whether the child will be disrupted by moving to another placement. We think that covers considerations of best interest and some very specific considerations around disruption and avoiding that, for reasons the Minister's articulated.

Dwi'n ddiolchgar am yr ateb hynny. Gaf i droi, felly, i adran arall o'r confensiwn sydd hwyrach yn cael ei effeithio gan ddarpariaethau'r Bil, sef erthygl 1 o'r protocol cyntaf sydd yn ymwneud â'r hawl i fwynhau eiddo yn heddychlon? Mae hynny'n cynnwys, yn ôl ein dealltwriaeth ni, elw. Felly, mae'r Bil, wrth effeithio ar gwmnïau sydd er elw, yn effeithio ar hawliau, o dan erthygl 1 o'r protocol cyntaf, perchnogion y cwmnïau hynny. Felly, sut ydych chi wedi mynd ati i ymateb i'r traweffaith mae'r Bil yn ei gael o ran yr hawliau penodol yma o dan erthygl 1 y protocol cyntaf?

Thank you for that further question. What we've had to do is to carefully consider the impact of the Bill's provisions both on providers and on looked-after children. We dealt with the issue of looked-after children in the answer to your previous question. We do acknowledge absolutely that what is being proposed engages the property rights of for-profit providers of children's homes and fostering services. There are currently no registered for-profit providers of secure accommodation in Wales, so it doesn't impact on them. The convention doesn't protect future property rights, so there would be no impact on any future for-profit providers in the secure sector.

The Welsh Government considers that any interference with the rights of the provider is proportionate, again for all the reasons I set out in terms of what we believe the aims of the Bill are, and that the Bill is a vitally important one to achieve a more sustainable children's social care sector and to ensure that social services improve life outcomes for children looked after by local authorities in Wales. So, what we've sought to do is to try to strike that careful balance between the needs of looked-after children in terms of social services and the proportionate impact that that would have on for-profit providers that currently provide services in the sector. The impact on providers and the need to allow time for business adjustments will be made within the Bill, and they will be able to continue to operate in Wales within a period of time that meets the transitional arrangements.

But what I would say, Chair, is I'm conscious that this is quite a complex legal area. I was just discussing this with officials beforehand. Before I came into this role, I was about to take the statutory licensing legislation through, and we were talking about article 1 in terms of the property rights of holiday accommodation owners and so on. It's the same article, and it's got the same complexities, and I am more than happy to write to the committee with a more detailed explanation, if that would be helpful, because I'm also conscious that we're going to be tied for time today as well.

Yes, very much so.

Ydych chi, yn eich asesiad cyfreithiol, wedi adnabod unrhyw risg i her lwyddiannus, er enghraifft, trwy rywun yn y sector er elw yn dadlau y gallwch chi, yn lle tynnu mas y posibilrwydd o gwmnïau er elw'n darparu'r gwasanaeth, osod uchafswm, er enghraifft, ar ganran yr elw a fyddai'n dderbyniol yn y sector yma, gan gyflawni rhan o'ch bwriadu polisi, ond heb gael gwared yn llwyr ar allu'r sector yma i ddarparu?

It was certainly one of the considerations when we looked at what the alternatives to the current system would be, but there was no fair way that we could identify a minimum or a maximum level of profit. It's either for profit or it's not, because you then move into very grey areas. That's why we've written into the Bill the necessity of the transitional arrangements and recognition of contractual arrangements and the recognition of not disrupting children that are in for-profit placements while we go through the transition period. But we're setting out very clearly what it is we're seeking to achieve. We've set out very clearly the alternative models of delivery that will be not-for-profit and we're continuing to talk to the sector, for-profit providers that are operating in the sector, about how they can best adapt to these transitional arrangements and be part of that transitional process, because a number of these providers are very good providers. We wouldn't want to lose their expertise, but what we don't want to see is the continuation of the for-profit provision within the sector.

Gaf i yn olaf, Cadeirydd, jest gofyn ar y pwnc yma, oes yna unrhyw elfen arall o'r Bil neu o'r confensiwn dŷch chi wedi’i hadnabod? Hynny yw, unrhyw bwnc arall sydd yn ymyrryd ar hawliau dynol sydd yn deillio o'r Bil. Oes yna unrhyw gamau penodol eraill rych chi wedi'u cymryd i sicrhau bod y Bil yn gyson gyda'r gofyniadau o ran y confensiwn dŷch chi ddim eisoes wedi sôn amdanyn nhw yn eich tystiolaeth?

Yes, we're satisfied that we've looked at the requirements of the convention. We've undertaken integrated impact assessments and those impacts are identified in chapter 9 of the explanatory memorandum. The human rights implications of the provisions of the Bill have also been fully and carefully considered, and we will be publishing a summary of those integrated impact assessments shortly.

Diolch. Alun.

Thank you very much for your time this afternoon, Minister. I don't actually have many questions on this piece of legislation, as it happens. I'm interested to understand and to confirm from you—. Just in terms of the technical aspects of the explanatory memorandum, you talk about the justice screening process that you've been through. I'm reading this to mean an impact assessment. Is that correct?

I'll ask Anthony to say a bit more about the impact assessments, yes.

Thank you, Minister. So, what we've undertaken there is part of an internal process we have, which we've referred to as a justice screening tool. The official title is a justice system impact identification. So, it's a part of the justice impact assessment, probably the first stage, as you might say. It's essentially a checklist to identify further areas of assessment in order to guide officials through the various aspects of impact that need consideration. So, that's what that is.

We've been through it. We think there is going to be a very limited impact on the justice system as a result of our provisions, and we discuss that in the explanatory memorandum per the requirement in Standing Orders. But, as we're going through scrutiny, we're obviously going to keep that assessment under review and come back to it if we think any changes suggest that there's going to be a greater impact on the justice system.

I'm grateful to you for that clarification. I'm very grateful to you, in fact. In terms of the development of the Bill, as you know, some of us here were victims of the Renting Homes (Wales) Act 2016, which seems to have more impact on the justice system than it's had on the homeless. In terms of taking this forward, have you had to make any amendments to the legislation as a consequence of understanding the impact on the justice system? Or are you very confident that the Bill as you've developed it, in terms of the clauses that we see in front of us at introduction, is actually providing us with the certainty that we require according to the explanatory memorandum?

At the moment—and I will just defer to my legal colleague in case I miss anything here—I don't think we've identified any changes that we feel are needed at this stage.

Okay. And—

I'll just see if Mike wanted to say—

No, I concur with you all. Thank you.

Okay. In terms of data protection, one of the issues that some of us have been concerned about, in terms of wider issues—not this portfolio necessarily but wider issues about data protection, data management within Government—has been how that is controlled. You've stated—again, in the explanatory memorandum—that a data protection impact assessment is being prepared. I presume you will be sharing that with the scrutiny committee.

Yes, absolutely. We'll publish a summary of all the impacts. We're continuing to have discussions as well with the Information Commissioner's Office because it is a complex area, as you say, but we will publish a summary of the impacts when those assessments have been completed.

I'm grateful to you for that, Minister. I'm also interested as to why you're doing that now and not prior to introduction.

Okay, so—. Yes.

Yes, thank you. So, within the explanatory memorandum, we were specifically discussing the provisions regarding restricting of profit, elimination of profit. We did undertake some consideration and identification of impacts that we were giving further consideration to. Where we are or where we were up to the point of introduction was we had to look again at the data impact assessment because we were developing some additional proposals around the approvals process for supplementary placements, and also for the sufficiency plans. So, essentially, what we have been doing in the recent weeks is just going back to our assessment of the data protection implications of the Bill in order to update it to align with those extra areas. And as the Minister said, we'll bring a summary of the codified impact assessment back to the committee and publish it as well.

Okay. There's always a balance to be struck, isn't there, between policy development, and when you feel you've reached a particular stage where you can introduce legislation, and then continuing to develop the legislative proposals as a consequence of the parliamentary scrutiny that is undertaken on the legislation. And getting that balance right can be difficult; I've got no issue with that. But if the issues around data protection have not been resolved when you're in Stage 1 scrutiny, not only does the committee not have the ability to scrutinise your proposals, but other bodies. Because the beauty of Stage 1 scrutiny—I think it's the most important part of the process in many ways—is that there is a collective national debate, if you like, around a piece of legislation. And certainly, when I legislated, I always felt that that was a very valuable part of the whole process. But if people don't have the information available to them at the beginning of that Stage 1 scrutiny, then two things happen. First of all, people are unable to comment fully and in an informed manner on the proposals that you intend to become law, and that is very much a disenfranchisement of people who want to take part in scrutiny. And secondly, the committee will not be able to fully scrutinise that part of the proposals. So, there is an issue there, but I accept there's a balance in getting these things right; I've got no issue with that. But would it not have been better for you to have, perhaps, ensured that those matters were fully completed, if you like, in terms of your work, prior to introduction to enable a much fuller Stage 1 scrutiny?

I guess from my perspective, Alun, that would be the ideal scenario, absolutely, but I think, as Anthony was saying, this was something that came up in the development of the policy, and it is very specific around the local authorities making supplementary placements, and that was something that came up as we were actually developing the policy. So, we will be working to ensure that you do have that information available through the Stage 1 scrutiny. It may not be while I'm sat in the room, but I'm always happy to come back and have another session with you, if you need to. But we will make sure that that information is with you as quickly as possible, and that it will be in time for the completion of the Stage 1 scrutiny.

Every time you answer a question I think of another. [Laughter.] Look, I've got no issue with that, but if the deadline is by the completion of Stage 1 scrutiny, that, by its very nature, precludes scrutiny of it, so it needs to be, this information needs to be, available to be scrutinised, not necessarily by this committee, but by the relevant scrutiny committee. So, that implies to me a greater urgency, perhaps, or that the Government might well seek consent to have a longer Stage 1 scrutiny; it seems to me those two options.

Yes, okay. Anthony.

Yes. We'll try and get that to you as soon as possible, and well before—

Give me a deadline. Give me a deadline.

I'll take that away, if I may, because I do need to speak to my policy colleagues.

Nice try. Nice try.

An excellent piece of lawyering there. Excellent. [Laughter.] Thank you.

Diolch, Alun. The Welsh Government carried out a public consultation on the proposals in the Bill during 2022. Why did you not consult on a draft Bill?

The draft Bill now—. What we consulted on was the policy development, and what we considered was that, actually, having the policy development consulted on was more important than, if you like, consulting on the draft Bill, because it's the policy development that informed the drafting of the Bill. So, there's nothing in the Bill that we haven't consulted on. So, that was, really, the purpose of that. I don't know, Anthony, Mike, whether you wanted to add anything to that.

I think probably just the only thing to say, Minister, is that there are a few minor things where we identified changes to the 2014 Act, largely technical things to do with the way that the regulators operate, where we took those forward in discussion with the regulators. But the position is as the Minister's articulated.

Okay, thank you. What does this Bill enable you to achieve that you cannot within the existing legislative framework? I'm always drawn to the fact that comprehensive education came in from a Department of Education and Science circular.

Yes, indeed; you're quite right. There's a couple of things here. So, restricting the extraction of profit from social care services provided to children—we do need primary legislation to do that. We're also placing new duties on local authorities to prepare sufficiency plans, and those duties can't be created under the existing statutory framework. And in relation to the plans to introduce direct payments for continuing healthcare, which is in Part 2 of the Bill, there are currently no powers to allow direct payments for healthcare, so the Bill needs those powers.

Okay. Diolch. Sam Kurtz.

Thank you very much, Chair. The new Schedule 1A to the Regulation and Inspection of Social Care (Wales) Act 2016 provides that the transitional period begins with the day on which section 6A(1) of the 2016 Act comes into force. Which provision in the Bill gives you the regulation-making power to start the transitional period, and when do you anticipate making regulations to bring it to an end? And if I could just add: why is the end date not on the face of the Bill, with a power to amend, if needed?

Okay. Thank you for that couple of questions, Sam. I'll bring Mike in, the legal officer, to deal with that, if I may. Thank you.

So, there's no regulation-making power for the commencement of the transitional period, because it will commence when section 6A is brought into force. So, that would be by commencement Order—that's what paragraph 1 of the new Schedule 1A tells us. And the reason for not specifying the end date for the transitional period is because part of the issue, which is being protected by the design of the scheme, is the article 8 rights of the children who are in placement and who are going to be potentially affected by the eventual disqualification of those providers who are for-profit providers and don't transition into the new arrangements. And setting a date on the face of the Bill would have been artificial. It wouldn't have allowed officials and Ministers to gauge the progress of the change in the sector as the provisions take effect, and would have set up instability and anxiety for those in placements who would potentially be affected because of an impending date coming up and their not knowing what might happen to them.

Okay. So, if the intention—

Sorry, Sam.

Sorry, go ahead.

I was just going to say that I absolutely appreciate the need for certainty, and I'm fully anticipating having to account for this in the Senedd and keeping the social care sector fully apprised of where we're going and our implementation and timetable and the progress for it. So, this will be an ongoing timetable that we continually adapt as we're going along, and we'll be updating the Senedd as we go, but it's important, for all the reasons that Mike has set out that, we retain that flexibility in the timetabling so that we don't stray into the difficulties that were highlighted by Adam in his previous questions around some of the human rights aspects of this.

So, sticking with that theme of dates not being specifically on the face of the Bill and then the regulation-making powers to change them if necessary, why the intention in that flexibility? Can you provide a bit more clarity on that, then? Surely, if you're pretty set on the dates of 1 April 2026 and existing providers on 1 April 2027, as noted in the explanatory memorandum, then why not put them on the face of the Bill? Is it just for flexibility's sake alone?

Because what we're talking about in terms of the timescale is when certain things will come into force, but within the Bill there will be flexibility, as I said at the outset—there will be flexibility for for-profit providers to continue where that is appropriate for them to do so, whether that's in the interest of the child or whether there are particular needs that have to be met. Tying that into the face of the Bill, I'm afraid, doesn't provide us with that flexibility that will necessarily be needed to introduce the objectives of this Bill.

Thank you. And with regard to Part 2 of the Bill and introducing direct payments for continuing healthcare, can you confirm whether the provisions of the Bill could be used to allow payments to people who have not been assessed as having a primary health need and, therefore, entitled to receive continuing healthcare?

So, continuing healthcare is a package of NHS-funded support that is provided to adults aged 18 and over, and the policy intent behind the Bill has focused on these adults because this is where the demand for direct payment in lieu of the provision of NHS services has been greatest, and that's what's led to the programme for government commitment. Only adults assessed as having a primary health need are entitled to receive continuing healthcare, and our policy intention is that those adults who will receive CHC will be able to seek the direct payments to secure the services that they need to meet their eligible needs, and there is no intention in this Bill to extend it beyond that at this stage.

Ocê. Diolch, Weinidog. Diolch, Gadeirydd.

Diolch. The Bill extensively amends both the 2014 and 2016 Acts. Why was it not considered appropriate to make this a free-standing Bill?

Mike.

As the question indicates, the key reference points for the two bits of legislation are these two pre-existing Acts, the Social Services and Well-being (Wales) Act 2014 and the Regulation and Inspection of Social Care (Wales) Act 2016, and even if a separate piece of legislation had been drafted to try and be self-contained, there would have been a need for people reading the law to understand how those two pre-existing Acts would have been affected in the sense that there would need to be some amendment to them to make them make sense. So, given that they are the pre-existing primary reference points for those two areas of law, the most logical thing was to make amendments to those two central points.

Okay. Diolch. Adam. Sorry, Alun wants to come in first.

Diolch, Gadeirydd—

Can I come in on that very quickly before Adam comes in? That means we now have three considerable pieces of legislation passed within a decade or so, or a few decades, managing this area of law. Now, it's reasonable to have all sorts of different pieces of primary legislation, I accept that, but, to me, it implies as well that there is a requirement for consolidation of this law at some point. Is that something that you're going to be looking at?

That isn't something that we're planning to do at the moment because our focus is on bringing this new piece of primary legislation in. But, I think, as with any legislation where there is overlap, Alun, that's always something that Government has to keep an eye on in terms of whether that would be an effective way forward. So, we've got the two Acts—2014 and 2016—and now this one. There are some overlaps, but there are some very distinct differences as well. But I absolutely take your point that they are covering similar areas of policy, and that's something that the Government would have to keep a watch on.

Mae'n flin gyda fi, Adam—wyt ti'n barod nawr?

Diolch, Cadeirydd. Felly, cyfres o gwestiynau eithaf manwl a thechnegol ynglŷn â drafftio, ac yn y blaen. Trwy gydol y Bil, mae yna ddefnydd o'r termau 'rhagnodedig' a 'i'w rhagnodi mewn rheoliadau', yn ein tyb ni, mewn ffordd anghyson. Os yw 'rhagnodedig' i'w ddefnyddio ar ei ben ei hun, ydych chi’n ystyried y dylai fod darpariaeth sydd yn esbonio bod 'rhagnodedig' yn cael ei ddiffinio fel 'i'w rhagnodi mewn rheoliadau'? Oes yna berygl bod yna ddryswch fan hyn?

Okay, well, I'm going to happily hand over to a legal officer to deal with those issues. Anthony.

I'll gladly handle that, Minister. So, yes, essentially, the rationale behind this is that where these words—'prescribed' and 'prescribed by regulations'—are inserted into other legislation by the Bill, the style used follows the style of the legislation into which those words are inserted. So, whichever is inserted into the 2014 Act follows and makes sense in the context of that Act, and vice versa for the 2016. So, essentially, we had a choice between either an inconsistent approach in relation to this Bill, or creating inconsistency within the Acts being amended, and the judgment made that it was preferable for those Acts to be internally consistent to themselves.

So, naill ai fyddwch chi wedi drysu drwy ddarllen y Bil yma neu byddwch chi wedi drysu drwy ddarllen y Biliau eraill. Mae e’n tanlinellu, efallai, y pwynt roedd Alun Davies yn gwneud, onid yw e—yr angen i ddod â phopeth ynghyd ac mewn ffordd gyson cyn gynted ag sy'n bosib. Mi wnaf i adael y pwynt rhethregol yna, felly.

Gaf i symud ymlaen i gwestiwn arall i chi? Mae rhai o’r darpariaethau yn y Bil i'w gweld i ni yn syml yn ailddatgan y gyfraith fel y mae ar hyn o bryd. Fe allaf i roi enghreifftiau i chi, ond rŷch chi’n derbyn bod y Bil yn ailddatgan y gyfraith fel y mae hi. Pam mae'n rhaid, yn syml iawn, ailddatgan y gyfraith bresennol yn y Bil?

Okay. Anthony.

I think Mike—

Oh, Mike's going to cover that side.

In particular, the amendments that were made to what is currently section 81 of the social services and well-being Act are now divided up into three sections—81A, 81B, 81C—with the amending provisions in it, and 81C, effectively, restates some of the law. There are elements of 81A that are restatements of the law, but the division into three sections is simply because, if it had been left as a single section, it would have been extremely lengthy and cumbersome. It's easier to break it down into smaller units. So, that's more a drafting choice for accessibility of law rather than anything of any underlying policy rationale. I think that more or less answers that.

There's a certain amount of restatement in the direct payment provision as well, but that is, again, to improve the accessibility of the law. The same provision exists, in effect, but it's done by modification, which is a cumbersome way of creating a legal effect, and is more difficult for the reader to do. So, again, there's a sound reason for that, drawn from accessibility of law.

Ocê, rŷn ni'n deall y rhesymeg, felly. Mae Pennod 1 o Ran 1 o'r Bil yn dechrau gydag adran trosolwg, fel y mae Rhan 3 o'r Bil. Ond mae gan bob adran ym Mhennod 2 o Ran 1 o'r Bil ei darpariaeth trosolwg ei hun fel is-adran gyntaf. Felly, y cwestiwn syml: pam, felly, nad oeddech chi wedi cael yr un patrwm o ran trosolwg cyffredinol, fel sy'n cael ei ddefnyddio ym Mhennod 1, ar draws y Bil cyfan?

Okay. I'll ask Anthony if he could explain that.

Thank you, Minister. In a sense, it's a similar theme to the previous question and answer. The difference is driven by a slight difference in the nature of the parts or chapters that are in question. So, Part 1, Chapter 1 of the Bill, and also Part 2, deal with distinct policies, or topics, themes, if you will. So, the one deals with eliminating profit as a whole entity, and the other one deals with direct payments for continuing healthcare as a whole entity. So, in that case, it was sensible to describe them than as an entity, whereas, with Part 1, Chapter 2, those are very much miscellaneous amendments to the two Acts, in order to address specific issues, as I say, mainly around regulation, inspection and the way that the regulators operate, and, therefore, it didn't seem to need an overview description in the same way, because, essentially, the overview would have been, 'This section makes a series of miscellaneous amendments'. So, that's the reason for that drafting choice.

Diolch.

Diolch yn fawr, Cadeirydd.

Alun.

Thank you. This Bill contains a wide range of delegated powers. I presume, Minister, you are content—since you published the Bill, I presume you are, but let's put it on the record—that the Bill strikes the right balance between what is on the face of the legislation and what you're seeking to do through secondary legislation.

Yes, I think we are. The Welsh Government's starting point is always that we should put as much as possible on the face of the Bill, and this Bill certainly does include a significant amount of detail on the face of the legislation. Where there are powers to make subordinate legislation, those powers are also aligned with the existing statutory frameworks and procedures into which they're being incorporated, and many of the new powers mirror existing powers, as is outlined in chapter 5 of the explanatory memorandum.

I'm grateful to you for that, but I think the committee has a somewhat nuanced view, shall we say, about the balance that we are seeing in different pieces of legislation at the moment, in terms of what is on the face of the Bill and, increasingly, where we're seeing powers being taken by the Government to be used at another time. But what that does, of course, where that balance isn't where, perhaps, it should be, is it doesn't enable the Senedd, or the public for that matter, to have a richer debate about what the legislation is actually seeking to achieve, and how the Government intends to take powers, use powers and then deliver its policy objective by the use of those powers, because those powers are held back in terms of secondary legislation. And that impairs our ability both to scrutinise you and also then to have a wider debate about the use of this legislation.

I hope that won't be the case, Alun, because I think, as I say, we have put an awful lot on the face of this Bill, and we've been very clear about the policy objectives, and very clear about the need for certain flexibilities in terms of why certain things are not on the face of the Bill. But I hear what you say. We have several stages of this Bill to go through, and people will be able to make those comments and those points as we progress with this Bill, but, at this stage, I am satisfied with the way that the Bill looks and what we're seeking to put on the face of the Bill, for the reasons I've already outlined.

Okay. Let me give you an example of perhaps what I mean. There is a new section—I think it's 6A(3)(b)—inserted into the 2016 Act, and that's about what is a public good. Now, 'public good' is a term that's used in many different sectors to mean different things. We've had, I think, a very rich debate, for example, on what is a public good in terms of the agriculture legislation and what we're asking farmers to do to deliver public goods in exchange for the funds, which are public funds that are made available to them. So, we're able to have that debate. In this area, we're unable to have the same sort of debate, because what we've got is public good that isn't fully defined except in terms of welfare of children, which is very clear and I don't think there's any issue about that. But because we don't have 'public good' defined in this context, although it is defined by the Welsh Government in other contexts, then the debate that we're able to have is somewhat limited, and it isn't the sort of debate that perhaps both this place and the wider public would wish to have.

Well, you're quite right: in this Bill, the term 'public good' is about the welfare of children, and it's the collective rather than the individual responsibility. So, I'm very clear about why that terminology has been used in the way that it has been used, but to answer the kind of technical, legal points that you're raising, I'll ask Mike if he can respond to that.

Yes, I think, just to build on what the Minister said, the intention of including some ability through regulations to widen the range of purposes and objects that a qualifying not-for-profit entity might have is simply to allow a little more scope. If it proves, through time, that it's a disadvantage or an advantage [correction: If it proves, through time, that it's an advantage] to have a slightly wider range of not-for-profit entities engaged in this area whose objects might go beyond something that is simply captured by the words 'welfare of children', then that will give us scope to enable us to do that, if that's what time proves to be required.

I was going to say we're in the last quarter of an hour and Sam Kurtz is waiting to come in.

Yes. Look, I'm very happy to have a wider conversation and a wider debate about these things. Perhaps, given the time constraints, Chair, we could ask the Minister to write to the committee outlining some of those, how she would define 'public goods' in this context, so that perhaps we can put that into the public domain to enable that debate to take place.

The final point I want to raise with you is about the statement of policy intent. Now, the committee received the statement of policy intent on Friday afternoon, I think, and this speaks back to the conversation that we had earlier in this session about the development of policy and the development and preparation of this legislation. Good scrutiny is informed scrutiny, and it isn't very well informed, shall we say, when we are scrabbling to read papers at the last moment. I'm concerned, therefore, about the way that policy has been developed within the department. It speaks to me of a bit of a panicked response. It's like myself as an undergraduate getting my work there done by the deadline. My lecturers could see through me, and I'm wondering if we can see through a bit of you, Minister, here, that we are not fully developing the policy properly before the legislation is being introduced.

Thank you for that, Alun. I understand exactly what you're saying and where you're coming from and how that would appear. We are, as you would appreciate, on a very, very tight legislative timescale, and that is something that we're very conscious of. This is a very important and complex piece of legislation that we need to ensure is delivered. Officials have been working very, very hard to get the statement of intent available in time for committee. I know you had the draft statement with your pack for today. Ideally, we would have liked to have had that with you earlier, and we're working very hard to make sure that the final statement of intent is with all the relevant committees in short order. I'm not sure, Anthony, if we have a timescale for when the final draft will be available.

I would hope the final version, completed and published bilingually, this time next week, hopefully.

Thank you very much. On to you, Sam, and now we're down to the last 10 minutes.

Diolch, Cadeirydd. Yes, we are, and forgive me, this is quite a long question, Minister, so bear with me while I recite this. But, through section 4 of the Bill, a new Schedule 1A is being added to the 2016 Act. New paragraph 2(4)(b) of that Schedule gives a regulation-making power to the Welsh Ministers enabling them to prescribe enactments that may also be captured by the provisions in paragraph 2 of the new Schedule 1A that relate to existing service providers and exemptions from being a not-for-profit entity. Can you explain why the negative procedure is appropriate for this exercise of this power, and why haven’t the relevant enactments been listed again on the face of the Bill?

So, at this stage, Sam, we saw this very much as a technical power to ensure that the provisions of the Bill function effectively, and, on that basis, considered it was appropriate to be subject to the negative procedure. It was as simple as that, really.

Okay. And the new section 81B(5)(c) of the 2014 Act, as inserted by section 13(3) of the Bill, gives the Welsh Ministers the power to direct a local authority to reconsider its application to place a child in a supplementary placement, taking into account reasons and information specified by the Welsh Ministers. No procedure is applicable to such a direction. Given that this power allows the Welsh Ministers to interfere with a subjective decision-making process of the local authority, why is it not subjected to a scrutiny procedure?

Well, because the direction relates specifically to a supplementary placement—. Sorry, moving back: this relates directly to a local authority's decision on a supplementary placement, and, because it's about an individual looked-after child, we didn't feel that that would be appropriate to be the subject of a Senedd scrutiny procedure.

Okay. So, even though it's done—. Will that be then, in my understanding, on a case-by-case basis, per an individual child?

So, the individual—. As I say, because it's about an individual child, that would not normally—. As Ministers, we quite often have to make decisions, based on current legislation, around placement of individual children and reasons for doing that, and none of that is subject to Senedd scrutiny, so we would not see that as being appropriate in this particular case, because it is about the placements of individual children. The general principles of what we're seeking to do is what would be the subject of scrutiny, but not the specifics of placements of individual children.

Okay, thank you for that clarification, Minister. And finally from me: section 24 of the Bill, which relates to direct payments for healthcare, provides for regulation-making powers that are subject to the affirmative procedure the first time that they are exercised, but the negative procedure thereafter. It is not clear, in relation to the new section 10B(5) of the National Health Service (Wales) Act 2006, whether on this first occasion the power can be exercised in relation to just one local health board. Can you confirm whether this is the case?

Okay. I think, Tracy, you can perhaps deal with that.

Technically, yes, it could; it could be used in that way. However, it wouldn't be appropriate to do so, because if we were to use that power in that way, then people in different parts of Wales would be treated differentially. Had we wanted to pilot this, which commencing in relation to one area only would effectively be, we would have sought appropriate piloting provisions. That wasn't the Government's intention, so, therefore, the power in 10B(5) will be used to bring the provisions into force in relation to all local health boards at the same time.

I think, probably—

Thank you. Sorry.

—it's just important to say, Sam, that, of course, the introduction of continuing healthcare payments for—. Direct payments have been in place for around 10 years in England, so, arguably, this is a tried and tested procedure that we didn't feel we needed to pilot, as it had been operated quite successfully, already, for 10 years in England.

Okay. Thank you, Minister. Thank you, panel. Diolch, Gadeirydd.

Thank you. Finally from me, in your evidence to the Health and Social Care Committee, you stated that this legislation should be seen as part of a wider transformation programme. Do you envisage that further primary legislation will be required in the near future as part of that programme?

No, at this stage, I don't see that. What I was talking about in the Health and Social Care Committee was the transformation of children's services, which is a raft, if you like, a suite of policies that we are implementing to change the way that children services are delivered. The health and social care Bill is one aspect of that. It's a whole programme of transformation, most of which can be done within the parameters of existing legislation. Where that couldn't be done within existing legislation, as per the Bill that you're now scrutinising, where we needed to move towards elimination of profit, then, of course, we've looked at legislation, but all other policy areas on the transformation of children's services can be done within the existing regulations and legislation.

Okay. It only falls to me to thank you, Minister, for coming along and answering our questions, and to your officials for coming along and supporting you. You have promised to write to us—

We have.

—on a number of items, so we look forward to receiving the written correspondence.

Diolch yn fawr.

Thank you very much.

Thank you.

And can I suggest we go into a five-minute break until 2.35 p.m.? Don't tell me that's more than five minutes; I know.