Legislation, Justice and Constitution Committee

With that, we will get straight under way, and it's great to see our Counsel General and Minister for the Constitution with us this afternoon, Mick Antoniw, Member of the Senedd for Pontypridd. Along with you, Mick, you've got two colleagues. Do you want to introduce your two colleagues, please?

Perhaps if I ask Claire Fife and Dylan Hughes to introduce themselves.

I'm Claire Fife. I'm the policy adviser to the Counsel General and head of the legislative codes office within Welsh Government.

Good afternoon, everyone. My name's Dylan Hughes. I'm the first legislative counsel.

Diolch ichi. So, we'll get straight into questions here. Let me begin, Minister, by asking you: with regard to the Legislation (Wales) Act 2019, which puts a duty on Welsh Ministers to improve the accessibility of Welsh law, can you outline for the committee how this was taken into consideration in the development of the Welsh Government programme for government in this sixth Senedd session?

Well, firstly, thank you for the question and, of course, accessibility really goes to the heart, I think, of all we want to do and achieve legislatively, and that is access, really, for all—for the lawyer, for the academic, for the citizen. But in achieving that, as we develop the programme for government, as we look at the legislative programme, we have a process of engagement with all the Ministers and their departments. As you probably know, I chair the Cabinet committee on the legislative programme. So, that is something that is very much an ongoing piece of work, and within all of that and all the demands that are there, there is an engagement process that takes place within those departments. It is important how we legislate and that the legislation and the work that’s going on in each of those departments actually reflects what we want to achieve. So, it’s not just an issue for the formal programme to improve the accessibility of law, but when we consider the legislative programme, the implementation and the roll-out of the subordinate legislation. So, there is an ongoing process of identifying, not only legislation within that programme, but also the specific items of legislation within the accessibility programme, and that leads us in, obviously, to the issue of codification and the issue of consolidation as well.

And you can assure us that all Ministers and all departments were engaged in the design of the programme, and took into consideration the duty on Welsh Government to improve the accessibility of Welsh law. And I wonder if you can tell us, if you can give us that assurance, how you did that, how that was achieved.

Well, the main way it's achieved is, firstly, by the fact that the underlying objectives of the accessibility programme are outlined and they are there, and Ministers and departments, obviously, are aware of that programme. But, of course, in respect of each aspect of the programme for government, in respect of the legislative aspects to it, I have bilateral meetings with each of the Ministers and I also have overall meetings with officials, looking at the collective picture in terms of that programme. So, the message is very strong there; it is enforced. There are, of course, many, many challenges, as you know. The whole programme and all the legislative requirements throughout Government and the Senedd are a bit like a jigsaw: you have to see the overall picture to see where you fit within that. But I'm satisfied that that message is there, that engagement takes place and, of course, it's not something that sort of happens and is done; it is very much an ongoing process. And it is a difficult one, because there has to be a lot of give and take in terms of the demands of what is happening from time to time as well.

Thank you, Counsel General. Well, let's take this forward a little bit, and if ever there was a loaded question it is this one, bearing in mind that we might come back and explore this further later in this session today. Is it Welsh Government's aim for its programme that citizens of Wales—all citizens of Wales—will be able to access Welsh legislation and to interpret it for themselves?

Well, the answer to that is 'yes'. It is easier to give that answer than the actual delivery of it, because we want legislation to be—. Well, we want it within a context that accessibility will be different for different people. For the lawyer, perhaps for the academic, even for the politician, the issue of the law—reading it, understanding it, accessing it—may be on thing. For the citizen to access it, it's incumbent on us to ensure that our law is as clear as possible, in as simple language as is possible within the demands that legislation naturally has, but then there is all the supporting access as well, through technology and so on, in terms of helping to understand it.

So, I don't think it is a simple process and it is one that is not easy to deliver, but that is the objective and I think we do work quite hard to try and achieve that. And then how we communicate that through the supportive materials and through the guidance that's available, and also how we, I think, identify and address the issues of inaccessibility that emerge. Of course, as you know, and it's something we've discussed many times, the issue of accessibility in terms of support, and that takes us back into a broader issue, not just accessibility for the lawyers, the politicians and the academics, but the actual real access where people need support in terms of accessing the law and being able to understand it as well.

Okay. Thank you for that answer. Whilst I'm tempted to delve deeper, I know my colleagues will. But we take the overriding principle that you want to extend the accessibility of Welsh legislation to all citizens of Wales, be it that their needs and level of interpretation may be different, but the need for accessibility is the same for each citizen, whether they are legally qualified or not. You've already started to touch on that it's perhaps easier to deliver that as an overall objective than somehow to follow that through on each area. But we'll come back to that and try and probe that a little bit.

Let me ask one final question before I bring in my colleagues. Welsh Government has laid out, partly due to resource issues currently, which is a constant factor within any Government system, resources, but particularly at the moment, and you can't rush at all of this, so there will be a series moving from classification of Welsh legislation by subject matter onto the consolidation of it, and then to the codification. Now, on that basis, can you give us a clear date when the classification of Welsh legislation by subject matter will be finalised?

That's actually quite difficult to do, because it's partly dependent on the actual scale of the work and the programme of work in terms of the consolidation. As a way of getting to it is, of course—. I'm sure Members will have seen in the past the draft taxonomy that was consulted upon. That was back in 2019 and 2020. And I think the consultation, which, again, is with a relatively small and niche group of individuals, certainly identified the need for further work to take place. I think what then happened is, because of the pandemic and the demands of that, things were put on hold for a period of time, but I know that officials have returned to it. They've looked at the statutory instruments that have been made since 1999, and they've used that information now to start trying to refine the various proposals.

I think what is now important is that we start testing the work that is being done with users in order to understand how we would actually use the classification terms and structure to find legislation. So, I know that work has restarted on it. We're looking, I think, at about three to six months to get that advanced, and then the next step is to start looking at the functionality on the legislation.gov.uk site. So, the work has had stops and starts for reasons I think Members will fully understand. It is under way. But I think it is also important to see this as work in progress and something that's going to be work in progress for some time, as we also get on with the other aspect of it, the core bit, which really triggers the importance of the classification, and that is the consolidation process itself.

Thank you for that answer, Counsel General, but I just wonder if I can push you a little bit further, because the danger is, with an ongoing piece of work, that the horizon keeps disappearing further into the distance. So, let me see if you can help us with some specifics: has the detailed mapping work to map the enactments been done? When will the classification be published? Have you got any idea when it might be made available, be surfaced a little bit, even though you're talking at the moment about working this through with stakeholders? So, in that case, can you tell us have you got in mind a schedule, for example, for a review process or stakeholder feedback process and when that might start and when it might be completed?

Well, I will certainly want to look at that process in three to six months in terms of when that further bulk of work has been done. Perhaps I might go over to Claire, who's been doing much of this work in terms of the update on it.

Claire, over to you.

Thank you, Counsel General. Thank you, Chair. You asked about the detail of mapping, we've taken, for the 2019 consultation, a high-level look at all the primary legislation passed by the Senedd, and then, for the detailed mapping, we took a bottom-up approach by looking at all the statutory instruments. Most of the statutory instruments since 1999 have been mapped and tentatively allocated to a subject area. That has resulted in some refinement of the detailed second layer of the subjects, not the high-level 'education', 'housing', 'health'—they've maintained a fairly static position based on the 2019 work that we did.

The Counsel General has outlined that we're going to go to test this now further, so it's not so much a general consultation; we want to do some detailed user testing. How do people use the terms? So, if I called it 'agriculture', would somebody else call it 'farming'? How would they find and use those terms? We think that'll take the next three to six months. We're hoping to work with the National Archives and their user research, because, as the Counsel General has mentioned, we are going to use this information in the first instance to apply additional functionality to legislation.gov.uk. So, it's important we work with the team in legislation.gov.uk to make sure that whatever terminology we come up with inside this taxonomy, this classification system, it can be rolled out effectively. So, after the next three to six months, I don't think I'm in a position, and maybe the Counsel General isn't either, to put a clear date on when we would be publishing or making anything available. It really depends on user testing, and we know that's quite an in-depth process that can take quite a lot of time. But that's where we are at the moment.

If I can say, Chair, one of the advantages of the approach that we've adopted, whereby, within our legislation, I have to report every year, is that there will be an annual review, so it will actually be a measurement from year to year in terms of the progress that's made, and I think that is an important aspect of that programme. It is difficult to give precise dates because of the very nature of the work that's ongoing and the particular demands across the board that there are, but I certainly see that annual reporting as being a very fundamental measuring tool. It means, effectively, there will be four, five reports over the course of this Senedd, all of which will be able to identify and compare where we were, where we are now and where we're going to be year on year.

Okay. That annual reporting will really help, but you've even more helpfully suggested to us that if we keep in close contact with you, we might see some sort of update on progress on this in the next three to six months as well, in terms of your targeted work with stakeholders, and so on. Sorry, Dylan, did you want to come in on that?

It was just simply to say that, as both Claire and the Counsel General have said, we have to work with legislation.gov.uk, which means that we have to work with the National Archives, so it was just to express a word of caution that not all of this is in our hands, because they are responsible for the website itself and the database itself. So, what we are doing is identifying subject matter to feed into the database—which is ultimately what the statute book is—but the technical work to make that happen will have to be done by the National Archives. But we are speaking to them about having a programme of work over a period of time, which will cover this and a number of other things, and there have been some very positive developments with the National Archives recently, and we can perhaps go into that in a little bit more detail later on. But a lot of this, as the Counsel General said, had to be put on hold at our end and at their end because of the amount of activity dealing with both Brexit and the pandemic.

There we are. Thank you for that. Okay. If it was easy, somebody else would have done it before you, Counsel General. Okay.

Next this afternoon, we'll go to Rhys.

Rhys, do you want to take us on?

Thank you very much, Chair, and good afternoon, Counsel General.

It's timetables I want to ask my first questions on, with regard to the consolidation Bills. A year's been given to us as regards the introduction of the historic environment Bill 2022. What about the other consolidation Bill—planning—and the two further consolidation Bills?

Thank you for the question. Historic environment, of course, was one of the first of the consolidation Bills identified. I think we're on course for that to be brought forward for the beginning of the summer. I'm hoping, by the end of May, beginning of June, that that will be tabled then. There have been a number of complications with it that have been identified, as I think is almost inevitable when you start looking at some of the legislation and going back over long periods of time, and pulling that legislation together. But it is on progress.

I think the other one, of course, is the planning Bill. That is an enormous piece of work and, of course, it's been assisted by considerable work, as you know, from the Law Commission. Drafting is under way with that, but the scale of the task, in terms of precisely when, I don't think that is clear yet. I will ask, perhaps, Dylan to come in and see if there's an update on that in just a minute. On the statute law repeal Bill, which is very much a tidying-up exercise, I think that is on target, and I think a lot simpler. Perhaps I'll ask Dylan where we are specifically on those two at this moment in time.

Yes. I'd say to begin with that it is important to consider how long these Bills will be, so this isn't a process that can be done overnight. As the Counsel General has said, the historic environment Bill is going to be tabled next year, and here's work that's been done on that Bill that is also relevant to the planning Bill. The planning Bill more than likely will be 400 pages long, just to explain the scope of the work that needs to be done, and 400 pages in one language, of course. So, that will come forward soon, and we hope that we'll be able to do at least two other Bills. The intention was to do five Bills in each Senedd, and we still intend to do that.

In terms of deciding which Bills we will be working on next, we have been considering some of the work that we've been doing at the moment to reform the law for the main legislative programme. Very often, there are decisions that have to be made to reform the law in the swiftest possible way and in the easiest possible way. We're very aware that the law that we are reforming is inaccessible—it's law that's available in English only, and it's England-and-Wales law or British law. So, one of the things that we do in reviewing the statute book is to consider, in every case where we reform the law—and we consider situations where the UK Parliament is still legislating on our behalf in Wales—in all of those cases, we consider what we can do next under the Counsel General's project to improve the accessibility of the law, by consolidating the law and creating modern, bilingual legislation for Wales. So, it is a process that will take time, but we are continuing to do it, and I would ask the committee to be patient for a little while longer, because things will come forward in due course.

Well, what I asked was whether you can outline a timetable, or years, in terms of the four Bills. Can you tell us, or is the answer 'no'?

The answer is that, as far as the historic environment Bill, that is completely clear. We're looking forward to bringing the planning Bill forward as soon as is possible. The reason why it's not quite as simple as being precise as to when it's coming is because, for years 2 and 3, we're still looking at the legislative programme as a whole. One of the challenges to doing that is because it does impact in terms of where there are opportunities for further consolidation Bills coming forward, and one of the particular challenges, of course, is that it's all very well to have the policy developing in respect of a piece of legislation, but getting that to the stage where you're actually in a position to deliver the legislation, the complications that arise, and when that can be delivered—. So, at the moment there is an ongoing review that I'm carrying out, and will be reviewing again very closely in January, as to what legislation can be coming forward in years 2 and 3, but also where the opportunities are within that in respect of the consolidation Bill, within the criteria that have actually been set. Now, as you'll know, there are four or five areas that we're particularly looking at where there might be the opportunity there, and I think those are set out in my report—allotments, building regs, hazardous substances planning, which again is another planning-related area, housing and public health. So, I can't give you precise dates now, but I do hope, certainly in the early new year, that that will become a lot clearer.

Okay. Well, I won't ask about the subordinate legislation, because I take it the same answer would be for that, and so I'll move on. As you've mentioned the criteria for consolidation, I'll move on to that. You mentioned four criteria: complexity, significant impact on citizens, feasibility and being topical and being a priority of Government. It doesn't say why these four additional areas have been chosen and how they match up with your criteria. So, how were they chosen, and when will you choose the next two topics that will form part of the next two consolidation Bills?

Well, the next two topics I'll be looking at, really, at the start of the new year, and looking at it in the context of the totality of the legislative programme, and, of course, as you know, the demand on legislative resources is an enormous one. It's important to have that overall picture. And I think you'll also be aware that there may be some additional demands in terms of that legislative programme, or where the prioritisation of bits of it are. So, it is a bit of a legislative jigsaw, because as well as the work going on with UK Government Bills, legislative consent motions, the legislative programme, implementation, which is a big one, stuff that is still happening on Brexit and COVID and other reforms, and so on, what we've done so far is to identify that we think, within the issue of allotments—a relatively small piece but, again, one that is raised in terms of communities—public health is one that not only is important, as we see within COVID, but is one that might be quite suitable for consolidation, just because of the very nature, the confined nature, of it. Housing is one of considerable importance, I think, one of the most important areas of legislation, but also one where we have an enormous amount of implementation work that is still going on from the last Senedd. So, the reality is that, out of those, when we have a better understanding of what is happening with, for example, the implementation, the fulfilment of that and the demands of that, and then those other areas, is to go for another two particular pieces of legislation that will probably be out of those five that have been identified.

As I say, it's—. The reason I'm being a little bit cautious over it is because, I suppose, it's necessary to look very closely at where the policy stage is and the policy work that is going on in other areas that overlap; planning is perhaps the classic example. But what I do hope is that, certainly in the early new year, I'll have a much better picture to be able to move forward and to identify where the two additional consolidation Bills will be, but also where they will be in the remaining four and a half years of the time that we have left before the next Senedd elections.

If I could just push back slightly with regard to these new topics, Counsel General, let's take allotments, for example. Now, I know Labour leaders past and present are very fond of their allotments, but can you really say that they fall under these categories? For example, is it a significant impact on citizens? Are they topical, and do they really relate to the priorities of Welsh Government? Is it really just the fact that, probably, it answers question 3, feasibility—they're probably easier to deal with, allotments, than the other large areas you've mentioned?

Well, I think—. I'm afraid that last point you make is certainly a very valid one—that we also do look at where are the quick wins, where are the things where we can get the consolidation programme moving and under way. Because it's not a—. The programme isn't one that's for this Senedd; this is a generational thing. This is the next 10, 15 years that the consolidation programme is going to be taking place. So, when there are enormous pressures and so on, being able to look to say, 'This is an area where we think it is of interest to communities; it may not be the biggest issue in the world, but it's one that is of sufficient importance, but it is very feasible at the moment to actually deliver that, so it is another piece of consolidation that is under way.' And when you look at the area of housing and public health, or even the issue of hazardous substances and building regs, those are areas that certainly are going to be much more complicated. Now, it may be that we don't do allotments; it may be that we will focus on housing and public health, or it may be building regs and hazardous substances, planning. But, either way, we've taken those five because those are ones that seem to be areas where we may be able to actually move forward within those categories, and feasibility is a significant factor within it.

Diolch yn fawr. I'd like to move on to scrutiny of the Act. There have been concerns about the lack of scrutiny, quite understandable with COVID laws, not so with regard to using Westminster Bills, in my view. But it's so important to get these first consolidation Acts correct. It'll set a precedent and, if it's done correctly, it'll be an impetus for more and then create greater accessibility. Now, do you agree with the comments of your predecessor, who said that he couldn't foresee a consolidation Act being passed through urgently—and I agree; I can't see any reason why it would need to be passed urgently—and him also saying that there will be enough time for proper scrutiny? Do you stand by those two comments from your predecessor?

Well, listen, the answer is 'I do', and I think it would be a contradiction in terms, wouldn't it, to say a consolidation Bill is of urgency, because the very nature of it, what it is doing, is pulling together the legislation to put it into a structure, ultimately, of codification and to make access to legislation much easier for the future. I think the point about consolidation is that it is, essentially, a process of not changing the law other than where there are technical corrections and so on that need to be made, or the elimination of terms that are no longer valid et cetera. So, it's not actually changing the law—it is just bringing the law together in a far more acceptable and clear format.

So, the process of scrutiny, it seems to me, is one that is: 'How effectively has that been done? To what extent does the consolidated Bill actually represent the consolidation of all those bits of legislation into a piece of legislation that now has probity and integrity?' That should be very different. I know, the Legislation, Justice and Constitution Committee, that is its main focus when it looks at legislation, rather than other policy committees, which will look at the intent of the law and so on. But it is important to distinguish, I think, what would be the scrutiny of a consolidation Bill from what would be the scrutiny of a new piece of legislation that is changing the law or that is implementing a particular piece of policy. When this whole process was considered over the past couple of years, the intention very much is that this should be a fairly fast and efficient process if it's done properly. It does require, of course, a considerable amount of trust and goodwill in order to enable that to happen, because otherwise it becomes as slow and as detailed as any other piece of legislation. But, look, it is absolutely right that committees have to have the proper time to scrutinise it, but I think it has to be scrutinised within the context of understanding that it is a consolidation Bill and not a piece of legislation that is reforming the law and changing policy in some way.

Diolch yn fawr. Finally from me, with regard to this section, the small topic of EU retained law. You mentioned in Plenary, Counsel General, last week, that you listened to Lord Thomas's evidence, even saying that the additional complexity that this has created within the devolution settlement—he said it was difficult for ordinary citizens to understand; he went further than that and he said it's difficult for us to understand. And that 'us' meant the former Lord Chief Justice himself. So, when the former Lord Chief Justice of England and Wales says he struggles with understanding the devolution settlement and struggles to find it accessible, there are real concerns indeed. He also said that not enough attention had been made—. Because the devolution settlement had been premised on us being members of the EU, not enough thought had been put into us no longer being a member of the EU. When you gave evidence to us last September, you mentioned that you were aware of a review by Lord Frost into EU retained law. You didn't have much detail about it and you invited us to ask further questions at a later date. Well, this is the later date, and you will be aware that, in the middle of this month, Lord Frost announced not one but two reviews with regard to EU retained law—one with regard to the substance and one with regard to the status of EU retained law. Do we now know what role Welsh Government will have in those reviews, and what are your plans to reconcile domestic law with retained EU law?

Okay. Well, firstly, thanks for that very, very detailed question, and you are absolutely right about the contradictions that exist in not only the legislative process vis-à-vis the Senedd and London, and then also then the comments of the Lord Chief Justice on his understanding, and I suppose, just as Marx spoke about the contradictions of capitalism, the Lord Chief Justice speaks about the contradictions of the devolution settlement, and of course those contradictions are going to be even greater over a period of time.

In terms of Lord Frost's proposals, I'll go over to the officials in a minute, but I think the latest position is that we know probably as much as you do about it. We haven't been directly engaged in that process. We're trying to find out precisely what that means and also what the implications are for the devolution settlement. It is an area that I am extremely concerned about: what exactly is proposed, what it means, how it will be done. What has been said by Lord Frost, of course, is that of course they will engage with the stakeholders. I was very concerned about that, because I don't regard Welsh Government as a stakeholder; it is another Government within the process that has to be fully engaged. So, that automatically, I think, triggers a certain amount of concern. So, we are trying to find out, and of course we will update the Senedd when we know more about precisely where that is, but it is very much on the radar. I don't know, from Claire's side, whether you know any more about this.

I'm afraid, Counsel General, you've fully covered all that we have available to us at the moment.

Okay. I'm afraid the answer is incomplete, but it's incomplete because we don't know, but we're trying to find out and it is one of those things that I'm sure is being raised at a very senior level, and there will be further discussions about that, because you quite rightly raise it as an issue of concern.

Okay. Diolch.

Thank you, Rhys, for that line of questioning. I could sense a little frisson there amongst one of our committee colleagues, Counsel General, as you threw in the word 'Marx', but I won't mention who it was. But we're going to pass now to Alun Davies to continue for us.

Yes. I don't know where to go after that. [Laughter.]

In terms of where we are, you've spoken, both as Counsel General and prior to your appointment, about the importance of accessibility to law and you've always described it as a fundamental issue of social justice and I've always agreed with that. Is it not the case, though, that the actions of the current Government are actually making Welsh law less accessible rather than more accessible by the increased use of legislative consent motions to put legislation onto the statue book without any scrutiny?

Well, I think the answer to that is that that is certainly the case. When you have a very substantial legislative programme being undertaken by the UK Government that then intrudes, in many ways, into devolved areas—. So, each of those pieces of legislation have to be considered. Some of them, like the police, crime and sentencing Bill, are actually three pieces of legislation that are pulled together, some parts of which are very controversial.

And of course, then there are many areas that are grey areas in terms of the devolution settlement. I say 'grey areas'—often not grey from our perspective, but grey on the basis that, when we engage with UK Government on them, if we identify a dispute over whether something is reserved or not, the response is, 'We don't agree with you and our view is what counts', and that isn't a helpful way of doing things. I think it is also the case that it does complicate the law, because you continue with law, really, in two areas—law that's being made at UK level being made in England, some of which we might want to consent to because it improves the situation for Welsh constituents and is something that we might not be able to legislate on for some time. So, there are very complex decision-making processes, I think, balancing out the pros and cons of that. But I think you're right, I think the current arrangements and the grey areas that exist as well do cause confusion and I think, ultimately, lead to confusion in what the law is, and one example of that would be the reform of elections for parliamentary elections and the increased divergence that we will inevitably have.

I don't disagree with your analysis, Counsel General, on any of that. And the examples you've given to us I think are very reasonable and fair examples. The actions of the United Kingdom Government of placing I think it was 18 pages of law into the policing Bill after the House of Commons stage is quite an extraordinary way to legislate. But isn't that exactly what the Welsh Government is doing as well? And this is getting to the heart of my question. Because, if, for example, you look at the environment Bill, the building safety Bill and leasehold reform, there are huge chunks of law, Welsh law, being placed on the statute book without any due process in this place, without any scrutiny in this place, and with barely any scrutiny across in Westminster as well. So, by using the LCM process, is the Government, the Welsh Government, not avoiding scrutiny of any kind?

The point you make is a fair one. I don't think it's a deliberate choice to try and avoid scrutiny. I mean, there is scrutiny within the LCM process, but, of course, the point you're—

No, sorry. Can I stop you there? There is no scrutiny in the LCM process.

Well, there is the—

There's scrutiny of the LCM, not scrutiny of the legislation.

No, no. The scrutiny is, of course, that the Government recommends a position on giving legislative consent and the Senedd has the opportunity to debate that and to actually reject it. But, the point you're making is, of course, there isn't the scrutiny of the line-by-line process that takes place within the Senedd, and that is fundamentally important. The difficulty, of course, is, I suppose, the choices that have to be made when you see a piece of legislation that comes from UK Government. The first thing is we have no option other than to choose whether or not to give legislative consent to it. We also have to evaluate the extent to which there is a dispute on whether it is reserved or not reserved, and what the implication is as to where we go on that. There is also a process of negotiation over potential amendments to make changes and so on, and there are advantages and disadvantages to that. You work within that process to minimise the impact on devolution integrity. Sometimes that is successful, sometimes it is only partially successful, sometimes it absolutely fails. The dilemma is that you don't have a choice, once that legislation is tabled in the UK Government, et cetera, if it does intrude, there is no option other than to deal with it by means of a legislative consent process.

But you do have a choice, don't you? You're quite right in terms of legislation that affects the settlement, I've got no disagreement with you over that, and there are LCMs—the Armed Forces Bill, the policing Bill that you've described—where that would be a reasonable and fair argument, and it's an argument I would accept as well. But, that's not the case when it comes to the Environment Bill, building safety or leasehold, where the Welsh Government is pursing its policy objectives by way of a UK Bill. It's not a matter of amending and it's not a matter of ensuring that the Bill fits the settlement, it's delivering legislation to deliver its policy objectives by choosing to go down an LCM process rather than our democratic processes. It's bypassing our democracy as a direct choice.

Well, you're right, there are those circumstances. Let's take the issue of leasehold reform. One of the challenges there is that there are things that we can do, certainly things we can do in terms of the future positions with regard to leasehold reforms, but there are things we would also want to do that we can't do. We can't change the past contractual arrangements. We can't change the position with regard to some of the existing management committees, et cetera. And also, we would not want Welsh citizens not to have the advantage of the extension of the limitation period in terms of taking legal action against developers. So, the option, for example, within that piece of legislation would be to say, 'Well, we don't want you to legislate at all in this area.' But, if we were to do that, then there would be hosts of areas where the reform can only come in terms of UK Government legislation because of the reservations that exists, or that we might end up with a situation where we say, 'Well, we don't want anything to do with this', and the UK Government will say, 'Well, that's okay, we won't apply it to Wales', in which case Welsh citizens would then lose out on being in the stronger position, for example, in terms of the limitation period extension. So, I think those are the challenges that actually emerge. They emerge out of the contradictions I referred to earlier in the devolution settlement, things which clearly there is no logic as to why they are not devolved, why we should not be able to do them, but that is the nature of the 2017 Act that we have at the moment.

And I don't disagree with that analysis, but that's not the question I was asking you, is it? It's about the whole-scale use of an LCM to deliver law, not just to amend law, to ensure that those jagged edges of the settlement are smoothed as much as they can be, to ensure that Welsh citizens don't lose out and the rest of it. I don't disagree with that and, if that was the purpose of the LCM, I would have no hesitation in voting for it. But, it's not, is it? It's part of a reform process which is a much wider reform process.

If you look at the buildings safety legislation, that's legislation I worked on in Government three or four years ago, so it's not new and it's not unique and it's not novel. I'm interested as to why the Welsh Government is going down the LCM route, because if there is legislation that is urgent, that needs to be on the statute book, then there are means of delivering that. I delivered two pieces of legislation using means to expedite the process, the Control of Horses Act 2015 and the Agricultural Wages (Wales) Order 2020, which you remember very well, and both of those needed to be enacted reasonably quickly to meet timetables. And we used the Senedd processes in order to do that, with scrutiny. What this Government is choosing to do is to avoid those processes, and it's actually taking longer to get this urgent legislation on the statute book by going via Westminster than it would do if it was delivering it here through our own processes.

There is always the option in terms of we take the whole of an area and we do it within our own legislative programme, and you fit that within the programme as it is. But you'll know as well as I do that the position that the Minister's taken on this is that the best way, and the most effective way of achieving what was wanted to be achieved environmentally, and, I suppose, in collaboration with the UK Government as well, was through the Environment Bill, and there were other options within that. But that was a political choice that was made, that was felt the most effective way of identifying or bringing forward those environmental reforms.

The point you make, of course, includes what impact does that have in terms of the scrutiny process, and that's a valid point, but I think that is just one of those practical political decisions that gets taken on legislation where you have enormous demands of legislation.

And that's the point I'm trying to get at, where the Government is on this. You've fought for Welsh democracy all your life, and there are very few people in this country who've shared such a deep and lasting lifelong commitment to creating democracy in Wales as yourself, and I remember you campaigned on it same as others here have done. And, so, I don't think there's any doubt about the commitment of individuals within the Government, but what is the Government stance? Because I would have anticipated that the Government would say, 'We want to see our democracy working to scrutinise legislation and to create the sort of statute book which is understandable and accessible' in the way that we've described already this afternoon.

And yet, you're actively then undermining that objective by putting pieces of Welsh law in all sorts of different acts and pieces of legislation which confuse and break that approach to the statute book, and it leads to a situation that was described earlier, where the former Lord Chief Justice is not altogether sure where Welsh law stands.

Well, this is a fair point. [Interruption.] No, this is a fair point. There are quid pro quos in terms of, within the five-year term, what do you want to deliver, how can you best deliver it et cetera, what are the demands on that particular delivery? And somewhere along the way, in there, there are choices that are made that this was an effective way of actually delivering in terms of the environmental legislation. The quid pro quo is, I suppose, really, that, in an ideal world, we would want every single piece of legislation that we could do, that is within our devolution settlement, to be coming within Wales. For a variety of reasons, that often isn't feasible, either because of shared areas of responsibility because of the devolution settlement, or the practical delivery of legislation.

Chair, we could continue this conversation for the rest of the day and night.

Yes. It's a fascinating line of enquiry because, Counsel General, as you've heard, we've expressed our concerns over this, and whether this is a temporary necessity, unavoidable, or if this is going to be a continuing trend and so on, but I think we'll also as a committee return to this in some detail. We'd be very interested in continuing this discussion with you and your officials as well, because what we cannot grasp at the moment is whether, at each time a consideration of a potential LCM is being put in front of the Welsh Cabinet, the starting point is: can we do this ourselves, for all the principles we laid out about accessibility for law, but also for ensuring that effective policy, as well as legislative scrutiny is done here in Wales, or is there a more flexible approach that says, 'Well, it's coming down the line anyway'?

Now, rather than continue this one for now, because I know Alun has got some other questions he wants to go onto as well, we would like to come back on this though, because, clearly, we want to work with Government, but our job is to scrutinise, and our worry is that, in terms of accessibility of law, we might be inadvertently hamstringing ourselves here by this very issue.

Anyway, Alun, back to you.

I'm grateful to you for that, Chair. It may be useful if we agreed with the Counsel General that perhaps an exchange of letters or a memorandum of understanding may be appropriate, so that we agree with the Government the criteria that are used to take judgment on these matters. Because I think the danger is that, when we address these matters in a piecemeal fashion, as we are doing and we have done over the last few months, we take judgment about what's in front of us rather than about the issue, and it may well be that an agreement between either this committee or the Senedd and the Welsh Government on these matters may be a useful way forward.

I'm certainly happy to explore that further. It is an important area of discussion.

Okay. I'm grateful to you.

Counsel General, thank you. Alun, over to you again then.

So, what does it look like then? What would a code of law look like? To myself, who's in the best tradition of a barrack-room lawyer—no legal qualifications at all, but plenty of opinions—if I was to look at the code of law for social care, for example, what would I find?

Well, it's a very good question, and I don't think there is a very simple answer. I think the starting point is what codification is, and codification is really, I suppose you'd say, a sort of mechanism that's designed to retain the order that you eventually achieve through consolidation. So, you have the consolidation and you actually have a structure, which enables you to retain that. Now, where things appear within that—what that classification actually is and what it amounts to—I think is something that is still being worked on. For example, where would you, within planning—. Historic environment, as was mentioned earlier, it has aspects that are not to do with planning, but a big chunk of it is actually planning; do you put it under planning, or do you put it under historic environment, and so on?

So, the code would be a series of headings within different categories. How those categories would break down I think is the area where work is still ongoing and what it would look like, and will be partly determined by, I think, the process of the consolidation Bills as they begin to go through, and where you start placing them within that code. So, I think we're not quite there yet, but we will be there soon, because, obviously, with things like the Historic Environment (Wales) Bill, we will want to place it within that code, and we will want to have that structure there in place. So, I think it's important to realise it's really merely a structure within which the laws fit, which affects the way in which you would change them in the future.

I'm grateful to you for that. I'm one of the few people in the country who's probably quite excited about this prospect. It's something that we've discussed in the previous Senedd, and it's something I look forward to seeing.

In terms of maintaining the integrity of that statute book, part of the essential process is updating legislation.gov.uk, so that Welsh legislation is available to users. Can you perhaps outline how that process is being pursued at the moment, and, also, whether you have any progress to report on the Renting Homes (Wales) Act 2016? I sat on that committee two Senedds ago, so I do have some interest—personal interest, if you like—as to when that Act will actually be commenced.

Can I start with the renting homes Act? Because one of my first tasks, I think, as taking, I suppose, stewardship of the legislative programme committee was to ensure that what we did do was catch up with all the implementation, because the implementation of the secondary legislation is as important as the primary legislation. And in many ways, it seems to me that there's a grave error if we see the primary legislation as being the main achievement, and then you don't go down the road of actually ensuring that you implement it. Now, there's a whole series of reasons as to why implementation can get delayed, but that is a priority area at the moment. There is a considerable amount of work that is ongoing in respect of, I think, six or seven very substantial pieces of subsidiary legislation that are being worked on at the moment. There may be lessons to learn, I suppose, from the way the renting homes Act is operated or comes forward, and how you need to actually have a process for the continuation of the implementation programme, with all the skills that exist in the preparation of the primary legislation. So, that work is under way. The intention is that those will be coming forward. I think one of them is coming forward shortly. I don’t know, Dylan—do you have any updated information on the state of play with those?

I don't have a date, I'm afraid, but I can confirm what you've just said. I think the scale of the task is the problem and, I think, because the Bill itself—. Because the reform that's instigated is wholesale reform of residential landlord and tenant, that means carving Wales out of the entirety of the existing statute book, and that has proved to be a very difficult process. There have been other reasons why there have been delays as well, but a lot of work is being done on it, with the intention of bringing this forward as soon as we can.

One thing I can tell you, Alun, is that, as we go into the new year, we’re looking very closely at the legislative programme—the legislation is going to come forward in years 2, 3 and possibly looking at year 4—and implementation features equally within that. So, it is not a question of, 'Well, we’re going to have all these Bills, and somewhere along the way we’ll squeeze in the implementation.' For me, in many ways, the implementation is actually more important, because there’s no point having high-profile pieces of legislation—important pieces of legislation—that then aren’t implemented, and that’s certainly and area that I wanted to focus on.

You did ask me about something else that has now totally gone out of my mind. If you could just remind me of the other part of the question. I got distracted by renting homes.

Minister, whilst Alun looks to remind himself there, can I just ask whether you are really strict on time today and whether you could spare us another five or 10 minutes? If you have to go, I understand.

I can probably do another 10 minutes.

That's fantastic. Thank you very much for that. Alun.

The other question was on updating legislation.gov.uk. But if I could, given that exchange, squeeze one tiny question in as well—and perhaps you might wish to write to us, Counsel General, with a response to this—about capacity with Welsh Government. Because yourself this afternoon, the First Minister, and other Ministers have spoken repeatedly about the pressures on the legislative programme and the rest of it. There are in fact two Bills in front of the Senedd at the moment, only one of which is a Government Bill. So, it’s difficult for us in this Senedd to understand these pressures, if I’m quite honest with you. And you will have heard me repeatedly say to the First Minister that I am concerned about whether Welsh Government is sufficiently powered to deliver on its ambitions. So, it might be useful for you to write to us on the capacity that you have in order to manage the legislative programme across the whole breadth of Government, because I think at the moment it feels that you don’t have the capacity that you require in order to deliver the programme that you wish to deliver.

I will write to you on that. Just to say on that, of course, I think it is important that the Senedd and the committee actually understand the scale of the legislative demands that there are, not just from Brexit, the pandemic, and so on, but in terms of the UK Government, the nature of that legislation—the whole scale of it is absolutely enormous, and implementation, of course, is a major factor. And can I also say, within these issues, it’s not just a case of, ‘Is it about having more money to do it?’—it isn’t. It is the very high-quality, technical skills that are needed. It’s almost a bit like the doctors argument—how many years it takes to train someone up to really become skilled at the levels you need. So, I will write to you separately about that.

On legislation.gov.uk, I will defer to Dylan, because there is, obviously, work that’s been under way in terms of updating, and Dylan, of course, has been overseeing that. Dylan.

Diolch, Cwnsler Cyffredinol. This is an old issue. This goes back several years. So, legislation.gov.uk has been working through a backlog of what we call 'updating work'. And what that means is that, for quite a few years, the legislation was always published, but what wasn't available online was the amended version of any legislation that was changed. So, if you had an Act passed in 2015 that changed an Act from 2010, you want to be able to read the 2010 Act as it's been amended, rather than having to read the 2010 Act and the 2015 Act. This work has been successful in the sense that the primary legislation is now available in up-to-date form on legislation.gov.uk, but what they haven't been doing is updating the Welsh language version of our legislation. As you can imagine, that's something that we have not been happy about, but we've been working with them, and the intention is that this will be something that we will take over responsibility for, but prior to doing that, the National Archives have to do a number of technical changes to the legislation.gov.uk website, and they also have to train the officials that we now have in Claire's office. So, that process is under way.

I mentioned the positive meeting that we'd had with the Queen's printer, who is chief executive of the National Archives, recently. This is all in the programme and this is our top priority. So, the top priority is making sure, first of all, that all the technical changes are implemented, and secondly that we ourselves work on the backlog, and once the backlog has been cleared by Welsh Government officials, Welsh Government officials will be responsible for this in future. They will be delegating the task of updating all Acts and subordinate legislation that is made in Wales to us, and we feel that, by having control of that process, we will be able to make sure that we are doing it as we want it done, and to look at our priorities in the backlog work as well.

Alun, thank you very much. We are in extra time, but, Rhys, we're going to come back to you if you have any final questions there that you'd like to put. I think we've probably got seven or eight minutes, maybe.

Thank you, Chair. Counsel General, you'll be aware that the Llywydd has asked us to look at a short inquiry about the accessibility of Welsh law and your proposals. I think, maybe, again, this could be answered in writing. What I would find useful is what external expert advice have you received to come to your conclusions. You mention in one place an example from Scotland of placing the header to say what exact part of the Bill you are on. Are there other international examples that have led you to that conclusion? For example, what led you to, 'That's the best font'? I think that would be very useful.

What would also be very useful is the consideration of this committee—the fourth Senedd's committee—into this. I think Alun Davies is the perpetual survivor of that committee; everyone else has gone now. But in that report they mentioned the difference they saw in the long title and in the overview, and that an overview has a different role to that of a long title. So, I'd like to know: what really is so complicated about a long title? Why do you think a long title complicates things that much? And, really, is there a chance of adding an overview at the beginning—is there a chance that that complicates things even further?

And then, the only other thing I wanted to mention with regard to that is that previously you've said that the overview would be non-amendable, that we wouldn't be able to amend the overview. Well, surely, it's such a large text, and it could be a large text in various parts of an Act, having such a large text without being able to scrutinise that as Members—surely that's not right. Is that still your position?

And the final question was in regard to the jointly procured software between the Senedd Commission and Welsh Government last year. Is that compatible with your proposals?

I'll bring Dylan in when we come to the software issue. I'm afraid I am part of the slide-rule generation, so software's not one of my specialities, other than that we can see its growing importance, both in terms of digitisation within the legal profession and artificial intelligence as well. So, I'll bring Dylan in on that.

In terms of the style, I suppose what we're looking at is—. As we are developing our Welsh legal framework and we're looking at classification, codification of Welsh law, accessibility, simplicity and so on, the question is: how can we best present legislation in a way that is as clear and as simple as possible? Is it the case that the current versions that we use are in the best format and that the approach that's being suggested is one that would actually make the legislation clearer? Examples have been given, and, of course, we approached the Llywydd on this, and I asked her, really, whether these were things that we wanted to look at, et cetera. Of course, it comes within her domain, and she has referred the matter to the committee. I think what we would like to do is to actually engage and consult. It's a fairly niche grouping of people who we're going to consult with—we're not going to go out to the general public—but, basically to get some views on the various suggestions.

In terms of the various suggestions, I think they are suggestions that have come through experience within the legislative process and how we might do it better. I can ask Dylan, as, really, the expert within the drafting element of this, to perhaps comment on that. But that's the approach I take. Is there a way of doing it better, doing it simpler within the way in which we want legislation to develop and format in the future, and particularly having regard to the processes that we're under with regard to making the law more accessible? Perhaps if I go over to you, Dylan, just really on that point there, just in terms of, I suppose, what the consultation process would be, and also any external influences on that. But also, importantly, the one area, I think, is the software area.

Okay. Diolch. I think the Counsel General is right to say that a lot of this is borne out of our experience, but probably the main thing is that what we are trying to do is to look at this from the perspective of the user of legislation, from the perspective of the citizen. So, taking the Member's example of the long title and the short title, sometimes we forget, because we live in this world, we are in the bubble, so to speak—would people understand what a short title is, what a long title is? I think they would be perplexed, purely by the concept of it. 'Surely', they would think, 'you have a title', and the reason we have a short title and a long title is purely historic. So, what we're trying to say is let's not just assume that things that have gone in the past—many of these things have just emerged from history, from the UK Parliament's history. We are trying to say, 'Right, let's start again, let's decide how we should set out this legislation as if we had a blank sheet of paper, as if we didn't have that history' and I think it's one of the things that, as a relatively new legislature, hopefully, we can do.

You're right to say, however, that we should be making sure that we get that right and that we should look to others. We have looked at Australia, New Zealand; they haven't done all of those things. They have their own histories, I suppose, and maybe certain things that they've kept on to for historical reasons as well. But I think that is what we are trying to achieve. We took various decisions, going back to the beginning of devolution, that, perhaps, we wouldn't have taken with the benefit of the experience that we've had since.

Just quickly on the software, clearly, we're aware of the issue, and the committee's right to point it out, because it's important that we get the software to work. We don't envisage that there will be significant issues. Really, we're talking about styles within the layout within Microsoft Word, so it isn't a hugely problematic thing, but, as the process goes on, we will need to make sure that any proposal that emerges can be reflected. Our initial view is that it's not a problem.

Thank you very much. Counsel General and Minister, thank you very much indeed, to your colleagues Dylan Hughes and Claire Fife, thank you as well, and to my committee colleagues for what I think has been a very interesting session. Thanks for the additional time as well. That has allowed us to go a bit further. If we do have any further questions we haven't covered, we might well write to you—

Of course.

—but I think we've covered most things we needed to. There might be some technical issues. And we'll obviously share the transcript with you for accuracy as well. But thank you very much indeed for your time, and we do genuinely look forward to continuing these discussions with you. We really do.

As indeed I do, Chair.

Yes, thank you very much indeed. Okay, we'll give you a couple of minutes to virtually leave the room and take your belongings with you.

Diolch yn fawr.

And we shall then proceed. Lovely, I think they've left. So, colleagues, we'll continue on then to our normal business. We don't have too much to do, so we'll try and rattle through this, but we do have a lot to do in private session afterwards.

So, if we begin with any instruments that do raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. And we have one, item 3.1, SL(6)086, the Health Protection (Coronavirus, International Travel and Restrictions) (Wales) (Miscellaneous Amendments) Regulations 2021. We're all very familiar with these coming in front of us and what they do in terms of making amendments to the travel and health protection regulations 2020 in relation to vaccinations and isolation. Now, our lawyers have identified three merits points for reporting, but we do not think a Government response is required. Could I invite Gareth to highlight any issues that have arisen and those three merits points?

Diolch. There are just the standard coronavirus-related merits points, but of course rules on international travel have changed significantly in the last few days, with the reintroduction of red list countries. And the regulations that introduced those changes will be before the committee next week.

That's great. So, if Members are happy to note and agree the reporting points. We are. Thank you very much.

We move on to item 4, Standing Order 30B report: 'The European Union (Withdrawal) Act and Common Frameworks' and 'Frameworks Analysis 2021'. They're in your papers, papers 4, 5 and 6. And, as we know, the European Union (Withdrawal) Act 2018 requires the UK Government to report periodically to the UK Parliament on matters relating to common frameworks and the use of section 12 so-called freezing powers to temporarily maintain existing EU law limits on devolved competence. So, the Welsh Government's written statement of 19 November notified Senedd Members of the twelfth such report, covering the period from 26 March to 25 June 2021. Gareth, do you have any comments on this?

Only to note the two main headlines, really: one, there appears to be continued positive work on common frameworks between the two Governments; and two, the UK Government has not felt it necessary to use its power to make regulations that freeze devolved powers in any of the common framework policy areas.

Thank you very much, Gareth. And it's interesting to note, as we've heard before, that this is one of the areas where there's been productive engagement, common frameworks. Okay, thank you very much. So, we note that paper and agree it.

We move on to item 5, papers to note, and we have several papers here. If Members are happy, I'll detail them for the purpose of the record, but then we can—unless you want to shout at me as we go through, we'll actually move them into private session for any discussion. The first one is item 5.1, correspondence from the Counsel General and Minister for the Constitution in respect of the quadrilateral ministerial meeting on common frameworks. So, that took place on 10 November, and the specific information on the common frameworks that will shortly be coming forward. Are we happy to note and defer discussion? We are. Thank you very much.

Item 5.2, we have correspondence from the Minister for Finance and Local Government in respect of SL(6)072, the Valuation for Rating (Wales) (Coronavirus) Regulations 2021. This is in response to the committee's letter querying the timing for the laying of the regulations. Again, are we happy to note? We are.

So, we move on to item 5.3, correspondence from the Minister for Finance and Local Government in respect of the Rating (Coronavirus) and Directors Disqualification (Dissolved Companies) Bill 2021. This is the letter from the Minister to Senedd Members regarding the LCM on the rating, et cetera, dissolved companies Bill 2021. So, again, if you're happy to note, we'll defer any discussion to the private session.

Item 5.4, correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd in respect of the Welsh Government's response to the committee's report on the legislative consent memorandum on the Animal Welfare (Kept Animals) Bill. Just to note that a date is yet to be scheduled for a legislative consent motion on this Bill. So, again, if you're happy to note, we'll defer any discussion till later.

Item 5.5, correspondence from the Minister for Education and the Welsh Language in respect of the supplementary LCM on the Skills and Post-16 Education Bill. Again, if you're happy to note, we can defer discussion. And that brings us then to the end of the business we need to do in public today.

So, under item number 6, can I move, if you're content, under Standing Order 17.42, to resolve to exclude the public from the remainder of the meeting? Are we happy to do so? We are. We'll move into private session, and I'll wait for confirmation that we are in private.