The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included.

Aelodau’r pwyllgor yn bresennol
Committee members in attendance

Mick Antoniw

Llafur (yn dirprwyo ar ran Julie James)
Labour (substitute for Julie James)

Suzy Davies

Ceidwadwyr Cymreig
Welsh Conservatives

David Melding

Y Dirprwy Lywydd a Chadeirydd y Pwyllgor
The Deputy Presiding Officer and Committee Chair

Eluned Parrott

Democratiaid Rhyddfrydol Cymru

Welsh Liberal Democrats

Simon Thomas

Plaid Cymru
The Party of Wales

Swyddogion Cynulliad Cenedlaethol Cymru yn bresennol
National Assembly for Wales officials in attendance

Stephen Boyce

Y Gwasanaeth Ymchwil
Research Service

Gwyn Griffiths

Uwch-gynghorydd Cyfreithiol
Senior Legal Adviser

Gregg Jones

Pennaeth Swyddfa Undeb Ewropeaidd Cynulliad Cenedlaethol Cymru

Head of the National Assembly for Wales European Union Office

Ruth Hatton

Dirprwy Glerc
Deputy Clerk

Gareth Pembridge

Cynghorydd Cyfreithiol

Legal Adviser

Gareth Williams

Clerc
Clerk

Dechreuodd y cyfarfod am 14:32.
The meeting began at 14:32.

Cyflwyniad, Ymddiheuriadau, Dirprwyon a Datgan Buddiannau
Introduction, Apologies, Substitutions and Declarations of Interest

[1] David Melding: Good afternoon, everyone, and welcome to this meeting of the Constitutional and Legislative Affairs Committee. I have apologies from Julie James, but I am delighted to welcome Mick Antoniw, who is a regular substitute. We appreciate your participation this afternoon, Mick. I will make some housekeeping announcements, but they are not the usual ones. For years, I have been saying that you need to switch off all electronic equipment completely, because, even in silent mode it will interfere with our broadcasting equipment. You will be relieved to know that silent mode from now on is okay. You can switch your equipment to silent mode.

[2] Simon Thomas: There will be more ways for us to be naughty now.

[3] David Melding: We do not expect a routine fire drill, so, if you hear the alarm, please follow the instructions of the ushers, who will help us to leave the building safely. These proceedings will be conducted in Welsh and English. When Welsh is spoken, there is a translation on channel 1, and channel 0 will amplify our proceedings.

Offerynnau nad ydynt yn Cynnwys Materion i Gyflwyno Adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3
Instruments that Raise no Reporting Issues under Standing Order 21.2 or 21.3

[4] David Melding: The instruments have been listed. Do Members have any queries? I see that we are all content.

Deddfwriaeth Arall
Other Legislation

[5] David Melding: This item includes the code of recommended practice on local authority publicity in Wales. Gwyn wants to highlight something in this code and bring it to our attention.

[6] Mr Griffiths: Yr hyn yr wyf am dynnu eich sylw ato yw’r broses anghyffredin sy’n gymwys i’r cod hwn. O dan adran 4(6) Deddf Llywodraeth Leol 1986, pennir y weithdrefn anarferol. Fel y gwyddoch, y drefn bresennol yw bod Gorchymyn, o dan y broses negyddol, yn cael ei wneud, ac yna ceir cyfle i’w ddirymu, ac, o dan y weithdrefn gadarnhaol, caiff ei osod mewn drafft ac yna mae’n rhaid cael pleidlais arno. Mae hwn yn gyfuniad o’r ddau, sef bod y Gweinidog yn gosod drafft ac, os na fydd y Cynulliad yn pleidleisio yn ei erbyn, bydd yn mynd ymlaen i wneud y Gorchymyn. Felly, mae’n gyfuniad od o’r ddau beth, a dyna pam roeddwn am dynnu eich sylw chi at y broses hon, i ddangos bod modd amrywio’r broses yn berthnasol i is-ddeddfwriaeth drwy’r ddeddfwriaeth sy’n gosod y fframwaith ar gyfer ei wneud.

Mr Griffiths: I want to draw your attention to the unusual procedure that applies to this code. Under section 4(6) of the Local Government Act 1986, the unusual procedure is set out. As you know, the current procedure is that an Order, under the negative procedure, is made and then there is an opportunity to revoke it, and, under the affirmative procedure, is it laid in draft and then a vote is required. This is a combination of both, where the Minister lays a draft but, if the Assembly does not vote against it, the Minister will proceed to make the Order. So, it is a strange combination of both things and that is why I wanted to draw your attention to this process, to demonstrate that there is a way of varying the process in relation to subordinate legislation through the legislation that puts the framework in place for making it.

[7] Simon Thomas: Diolch am yr esboniad. Roeddwn yn mynd i ofyn beth oedd y broses, ond rydym wedi cael yr ateb. Ond, beth ydym ni’n galw’r broses hon?

Simon Thomas: Thank you for that explanation. I wanted to ask what the process was, but we have had the answer. However, what do we call this process?

[8] Mr Griffiths: Nid wyf yn siŵr. Nid wyf yn meddwl bod enw penodol ar ei chyfer. Gallai rhywun ei galw’n ‘reverse negative procedure’ neu rywbeth fel hynny.

Mr Griffiths: I am not sure. I do not think that there is a specific term for it. We could call it the ‘reverse negative procedure’ or something like that.

[9] Simon Thomas: Diolch; mae hynny’n rhywbeth i’w gofio.

Simon Thomas: Thank you; that is something to remember.

[10] Eluned Parrott: I was wondering whether there is any indication as to why this particular procedure has been done in this way at this time.

[11] Mr Griffiths: No, because it was something that Parliament decided upon in 1986 when it passed the local government Act, and that is why it was done.

[12] David Melding: So, the Minister lays it in draft and then we can vote if we want to.

[13] Mr Griffiths: Yes.

[14] David Melding: We have to trigger that request.

[15] Mr Griffiths: Yes.

[16] David Melding: The Assembly itself has to say. How many Members, or is it—

[17] Mr Griffiths: It is in accordance with our rules for negative procedure.

[18] David Melding: So, they call it in and it is just—

[19] Suzy Davies: That leaves the vote of the Presiding Officer critical again.

[20] Mr Griffiths: Yes.

[21] David Melding: It is because it would need a majority.

[22] Mr Griffiths: Frankly, local government publicity is not the sort of issue where I would think it would go to the casting vote, but you never know.

[23] David Melding: Is this of interest to the purists, or is there a wider point of principle, do you think?

[24] Mr Griffiths: I do not think that there is; I think that it is just a matter of information for this committee.

[25] David Melding: Okay. Are we happy to leave it at that? I see that we are. That was a little treat for us this afternoon.

14:36

Memorandwm Cydsyniad Deddfwriaethol Atodol (Rhif 3): Y Bil Dadreoleiddio
Supplementary Legislative Consent Memorandum (No. 3): Deregulation Bill

[26] David Melding: Item 4 is the supplementary legislative consent memorandum on the deregulation Bill. Is it the third or the fourth that we have had? There is a particular issue here in relation to home-school arrangements, in that this is something that clearly the Government here could have legislated on; it has had two opportunities, really, but it has left it for this procedure. Gwyn, do you want to add any fuel to that particular observation?

[27] Mr Griffiths: Na. Roeddwn i am ei dynnu at sylw’r Cynulliad. Yn aml iawn, fel y gwelwch gyda’r cyngor ar gyfer y ffariars, nid yw’n rhywbeth sy’n disgyn yn hawdd i ni ei wneud ar ein pen ein hunain. Ond mae’r mater hwn o gytundeb rhwng ysgolion â’r cartref yn rhywbeth y gallwn ei wneud, ac nid yw’r Llywodraeth, hyd y gwn i, wedi codi’r peth cyn hyn fel mater yr oedd am ei newid; mae’n cytuno â’r hyn y maen nhw’n bwriadu ei wneud yn San Steffan.

Mr Griffiths: No. I wanted to draw it to the attention of the Assembly. Very often, as you will see with the advice on farriers, it is not something that falls easily to us to do alone. However, this matter of agreement between schools and the home is something that we could do, and, as far as I know, the Government has not raised this as an issue that it wanted to change; it is agreeing with what Westminster intends to do.

[28] Simon Thomas: Mae’n ddiddorol, achos mae dau gyfle clir wedi bod mewn Bil hollol Gymreig ynglŷn ag addysg wedi mynd drwyddo—un yn benodol wedi ymwneud â’r maes hwn, lle gallai’r Llywodraeth fod wedi cael gwared â’r cytundebau hyn. Wedi dweud hynny, nid yw hyn yn gymaint ar gyfer y pwyllgor hwn, ond rwy’n gwybod o’r Pwyllgor Plant, Pobl Ifanc ac Addysg nad yw hyn wedi cael ei godi o gwbl mewn unrhyw ffordd, mewn unrhyw dystiolaeth, neu yng nghyswllt unrhyw agwedd ar y Bil, y polisi na’r ymchwiliad. Felly, mae’n od bod y Llywodraeth yn cydsynio i rywbeth gael ei ddirymu, fel petai, heb unrhyw fath o drafodaeth cyhoeddus bod angen gwneud hynny. Ar yr olwg gyntaf, mae hyn yn bwysig, sef y berthynas rhwng y rhieni â’r ysgol ond, yn ymarferol, wrth gwrs, nid yw’r cytundeb hwn cweit yn gweithio fel y mae i fod, ond mater arall yw hynny, a mater, efallai, i’r Cyfarfod Llawn. Fodd bynnag, rwy’n nodi wrth basio ei bod yn rhyfedd defnyddio Bil yn San Steffan heb unrhyw drafodaeth ar hyn. Nid yw’n fater technegol.

Simon Thomas: It is interesting, because these have been two clear opportunities in an entirely Welsh Bill on education that has gone through—one specifically in relation to this area, where the Government could have gotten rid of these agreements. Having said that, this is not so much for this committee, but I know from the Children, Young People and Education Committee that it has not been raised in any way, in any evidence, or in relation to any aspect of the Bill, the policy or the inquiry. So, it is odd that the Government consents to something being revoked, as it were, without any public discussion having taken place on a need for this to be done. At first sight, this seems to be important, namely the relationship between parents and schools, but, in practical terms, of course, this agreement does not quite work as it should, but that is another matter, and perhaps a matter for Plenary. However, I note in passing that it is strange to use a Westminster Bill without any discussion on this issue. It is not a technical issue.

[29] Mae’r llall yn fwy technegol; mae’r un ynglŷn â phedoli, fel petai, yn fwy technegol o lawer.

The other is more technical; the one on farriers is far more technical.

[30] Suzy Davies: Rwy’n cytuno â hynny, ond, o ddweud hynny, bydd hyn yn dod o flaen y Cyfarfod Llawn, felly bydd siawns i’w drafod. Nid yw cweit yr un peth â’r broses negyddol.

Suzy Davies: I agree with that, but, having said that, it will come before Plenary, so there will be an opportunity for discussion. It is not quite the same as the negative procedure.

[31] David Melding: Are there any other comments? I think that we should report on this saying that we do observe—we can do it fairly neutrally—that the schooling one is a matter that could have been dealt with in Welsh legislation, and that we as a committee always believe that that is the best route where it is available and possible. In a way, it is for the Children, Young People and Education Committee to pick up if it really wants to; that is a policy issue, is it not, but I think that it is important that we point that out?

[32] Simon Thomas: Yes, but you could argue that the farriers could be picked up in the Agricultural Sector (Wales) Bill as well.

[33] David Melding: Okay. So, we will so report.

14:40

Cynnig gan y Comisiwn Ewropeaidd ar Wahardd Rhwydi Drifft COM(2014)265
Proposal from the European Commission on the Prohibition of Drift Nets COM(2014)265

[34] David Melding: There is some very useful briefing material for us, including a note from the research department, which sets out some ways in which the committee may want to proceed. Just to remind you, this is not a subsidiarity issue, but it does raise issues about proportionality, which are peripheral, in a way, to this committee’s work, but are something that we have looked at in our report on Wales’s voice on European matters. Actually, this does show you a very concrete example—although concrete and fishing may not be a very good way of putting it—that these things are not esoteric, and that they can affect the daily livelihoods of people in Wales. So, I think that it is an issue that is worthy of some attention.

[35] Joining us for our discussion is Gregg Jones from the Assembly’s office in London, and speaking, I think, from the Committee of the Regions. So, welcome, Gregg. I think that you are connected up and can hear us.

[36] Mr Jones: Yes, I am, Chair. Good afternoon, and good afternoon to the Members as well. I am joined by Osian McGuinness, who is with me this week on work experience from Ysgol Maes Garmon.

[37] David Melding: Splendid. We are very pleased that that is happening as well and that we are doing our bit for those who are seeking work experience. Gregg, do you want to update us on anything, or is the documentation before us suffice for us to have a full discussion now?

[38] Mr Jones: I think that the documents set out the issues quite clearly, so there is not really anything that I would like to add at this stage, Chair.

[39] David Melding: Okay. I suppose that it is over to you, Members, to put weight on this, and to discuss how much stress we should lay on the proportionality issue, and on this particular example of the drift nets. This is a policy that has been designed, it seems, for the Baltic and the Mediterranean, but that could have quite a deleterious effect on our fishermen—or fisherpeople, or whatever. It is quite useful, as it outlines who we could make our representations to. Simon, did you want to start?

[40] Simon Thomas: A gaf i ddechrau drwy nodi dau beth y byddwn i am eu trafod? Un yw cwestiwn cymesuredd—dyna’r gair, rwy’n meddwl—a pha mor gymesur yw hwn. Rwy’n gwybod, o safbwynt y rhanbarth yr wyf i yn ei gynrychioli—dyna’r arfordir i gyd, wrth gwrs, lle y defnyddir y rhwydi hyn—y byddai’r pysgotwyr yn dweud yn glir iawn bod eu defnydd hwy o rwydi drifft yn gwbl wahanol i’r hyn a welwch, efallai, ym môr y Canoldir ac ym môr Iwerydd, ac ati, ac felly y byddent hwy yn dadlau ar ran cymesuredd.

Simon Thomas: May I just start by noting two things that I would want to discuss? The first is the question of proportionality, and how proportionate this is. I know, from the point of view of the region that I represent—that is the whole coast, of course, where these nets are used—that fishermen would say very clearly that their use of drift nets is entirely different to what you would see, perhaps, in the Mediterranean and in the Atlantic, and so on, and so they would argue for proportionality.

[41] Hefyd, mae cwestiwn mwy cyfansoddiadol yn y fan hon. Os wyf fi wedi deall y papurau yn iawn, mae Llywodraeth Cymru yn dweud nad oedd yn ymwybodol—nid nad oedd yn ymwybodol o’r cynigion i wahardd y rhwydi hyn, ond nad oedd yn ymwybodol o’r ymgynghoriad ar y cynigion i wahardd y rhwydi hyn. Rwy’n meddwl bod hynny’n syfrdanol, a dweud y gwir, ac mae’n tanlinellu’r hyn yr ydym wedi ei ddweud yn yr adroddiad, a wnaethom ond ei drafod tua pythefnos yn ôl ac na chafodd ei dderbyn yn llwyr gan y Llywodraeth, wrth gwrs, sef ein bod yn ei hannog i gyhoeddi memorandwm bob tro y mae rhywbeth o ddiddordeb penodol Cymreig yn codi ymysg y cynigion o’r Comisiwn.

Furthermore, there is a wider constitutional question here. If I have understood the papers correctly, the Welsh Government is saying that it was not aware—not that it was not aware of the proposals to ban these nets, but that it was not aware of the consultation on the proposals to ban these nets. I think that that is shocking, in all honesty, and it underlines what we have said in the report, which we discussed only a fortnight or so ago and which was not accepted in its entirety by the Government, of course, namely that we encourage it to publish a memorandum whenever anything that is of specific Welsh interest arises in the proposals from the Commission.

[42] Felly, mae’n tanlinellu pa mor bwysig yw’r pwynt hwnnw, ond nid wyf yn gwybod a oes mwy o wybodaeth ynglŷn â pham nad oedd y Llywodraeth yn ymwybodol o’r cynigion hyn. Fodd bynnag, rwy’n synhwyro bod staff y Cynulliad wedi canfod y wybodaeth drwy’r polisi rhwydi drifft y maent yn ei ddefnyddio, fel pe bai—yn mynd drwy bethau ac yn dal rhai o’r materion hyn. Felly, gan ei fod wedi dod atom ni, rwy’n meddwl y dylem danlinellu’r ddau bwynt hynny. Nid wyf yn siŵr beth yw’r ffordd fwyaf priodol—mewn llythyr, mae’n debyg—ond byddwn i yn codi’r egwyddor hon o gymesuredd hefyd, oherwydd, rwy’n credu, yn y cyd-destun Cymreig, ei fod yn gwbl wahanol i’r cyd-destun Prydeinig, ac yn sicr yn wahanol i’r cyd-destun Ewropeaidd ehangach.

So, it underlines how important that point is, but I do not know whether there is more information about why the Government was not aware of these proposals. However, I sense that the Assembly’s staff has found this information through the drift-net policy that they use, as it were—they go through things and capture some of these matters. So, as it has come before us, I think that we should emphasise those two points. I am not sure what the most appropriate way is—by letter, I suppose—but I would want to raise this issue of proportionality as well, because I think that, in the Welsh context, it is entirely different to the British context, and certainly different to the wider European context.

14:45

[43] Mick Antoniw: In terms of the scale of the proportionality issue, I am aware that Julie James has raised this issue numerous times, and the very small-scale nature of the Welsh fishing industry has also come up in the Environment and Sustainability Committee. Do we have any idea of the number of potential vessels or the number of people involved that would be affected by this change? The change, as I understand it, to take up the 2.5 km is purely a simplification in order to make it easier to enforce in some way. I did not quite understand why it was easier to enforce or what the nature of those problems was, but we need to have an idea as to how many people are affected by this.

[44] David Melding: There are figures somewhere.

[45] Mick Antoniw: Are there? I have not seen them.

[46] David Melding: I am trying to think where I read them.

[47] Eluned Parrott: They are on page 40.

[48] David Melding: There we are. There are approximately 70 vessels operating in our inshore fisheries.

[49] Mick Antoniw: Yes, but what does that mean in terms of people and the numbers of jobs?

[50] David Melding: There are at least 70 vessels, so probably more, I would guess.

[51] Mick Antoniw: There might be several hundred.

[52] David Melding: It certainly could be into the hundreds.

[53] Simon Thomas: There tend to be two or three—[Inaudible.]

[54] David Melding: The point, Mick, is that we should have had some knowledge of all this to make appropriate investigations and representations.

[55] Mick Antoniw: That is right. We should have known that this issue was coming up that will have an impact in Wales, and there should be a mechanism for us to identify it and comment on it. What is not clear, and I do not understand, is what submissions have gone in from the UK side as well. I presume that there are places around the rest of the UK that are similarly affected. Is this something that we have missed within Wales or is it something that we have missed within the UK? We remember the problems we had on the trans-European transport network. I do not know whether Gregg can help us on whether it is the case that this affects other parts of the UK, and whether any submission was made in respect of the proposal from any part of the UK.

[56] Mr Jones: On the submissions, I can check that point; I do not have that information to hand. On the number of vessels affected in the UK, the preamble to the draft explanatory memorandum at the front gives a figure: it says around 250 vessels in the UK, representing 0.14% of total landings in 2011, would be affected. The core arguments that the Commission is presenting in the draft regulation is that a ban across the whole of the fisheries sector would have a very limited impact; the counter-argument being that if you are affected by that, even if it is on a minimal scale, it can have quite an important effect at local community level. We do not have figures on the total numbers of employment, but that is something that may came out in the answer to the letter that the Environment and Sustainability Committee wrote to the Minister asking for clarification. That is the type of issue that we would expect to see in the reply.

[57] David Melding: Okay. I think that we are agreed that we should make representations that, at the very least, how this is going to affect Wales has not been properly evaluated, and that we are concerned about a possible breach of the proportionality principle, in that something that was designed to check abuse or promote sustainable use, or whatever the correct terminology may be, in the Baltic and the Mediterranean has just simply been applied to, in our case, the Irish sea and the north Atlantic, and it may not affect many people, but the people affected are affected 100%. It is not much compensation to hear that you are one of only a handful in the whole EU that is affected, but if it is you, you know—

[58] Simon Thomas: If I understood Gregg’s figures correctly, there are 250 UK vessels affected and that is a very small percentage of the EU landings, but if you look at the legislation, it says that, overall, it affects 840 vessels. That means that those extra 600 or so vessels are landing 99% of the fish. Those are the big ones that should be dealt with proportionately by this legislation, but there is a disproportionate effect on very small-scale in-shore fishing.

[59] Suzy Davies: Sorry, you will have to forgive me that I do not have the papers in front of me, but was the issue of derogation raised?

[60] David Melding: I do not know.

[61] Suzy Davies: Okay, because that is the alternative way around this, is it not?

[62] Simon Thomas: Gregg might be able to say, but I think that fisheries policy is completely at EU level and we do not have the ability to derogate at all from it. That is my understanding of fisheries policy.

[63] Suzy Davies: I am sure that you are right.

[64] David Melding: Gregg, do you have anything to add there?

[65] Mr Jones: Just on the responses, I have checked on the Commission website and there were 40 responses altogether. The only one that I can see from a UK organisation, while checking quickly, is one from BirdLife International. That is from a quick scan, but I can follow that up with a proper note. However, there were 40 responses overall, and it does not look like there was anything from Scotland or Northern Ireland, although there is a response from a fishing heritage project in Ireland.

[66] David Melding: Okay. I call on Eluned.

[67] Eluned Parrott: I think that before we jump to the conclusion that there is a terrible systems failure here, we should note that 40 responses to such a significant ban might suggest that this was—I apologise for the pun—a consultation that slipped through the net. I apologise, but I could not think of a better way of phrasing it. However, genuinely, this is a massive cause for concern, because while it is a relatively small number of people, we are talking about a whole industry and industrial process being lost to a very specialist, niche market here in Wales, and that is an unacceptable impact. The paper asked the question whether this is evidence of the need for a systematic approach to this. I think that absolutely it is, because we need to be representing people more effectively than this and, in order to do so, we need to know what is coming.

[68] David Melding: May I summarise it then that we feel that we should write expressing our concerns to the European Commission that this may not be proportionate, and also that there has been a problem with the consultation procedures? We will also write to the Welsh Government saying that it is clear that this has been missed and that this sort of phenomenon is what we were worried about when we drafted recommendation 8 of our report, saying that there should be clear co-operation between the Welsh Government and the UK Government, identifying issues and using explanatory memoranda in the right—

[69] Suzy Davies: I am sorry, Chair, but judging from what Gregg told us, the UK has not put in—

[70] David Melding: There may be a huge failure in the system, if that is the case.

[71] Suzy Davies: So, we need to find out where the information gap happened.

[72] David Melding: Is that okay? I see that it is, so we will have drafts provided. Thank you, Gregg.

[73] Mr Jones: Thank you, Chair and Members.

14:52

Papurau i’w Nodi
Papers to Note

[74] David Melding: There is a letter from the Minister for Local Government and Government Business on the Wales Bill. The Minister also wrote to the Finance Committee and that letter to the Finance Committee is also attached. There is an interesting question here about the funding of lead campaigns in referenda, and, obviously, it reflects on what happened in 2011. Do Members have comments?

[75] Suzy Davies: I have only one question: is it a matter of interpretation by the Minister or is it pretty clear in the draft Wales Bill that only one campaign would be funded? I cannot believe that that was the intention, somehow.

[76] David Melding: I think that it is probably designed to stop a situation where there are two campaign organisations, but one spoils the system by saying that it will not take the money and be a lead campaign. So, an organisation is less likely to do that if it cannot stop the other side getting the money. I guess that that is the intention, but I think that it is just a matter to note. I do not see a need to go any further unless Members want to disabuse me of that. I see that that is okay.

[77] There is another paper to note, which is the speech by Dr Hywel Francis MP to the Equality and Human Rights Commission. You may recall that it is part of the committee’s future work programme to look at some human rights issues that may be relevant to us. So, that is there for your information.

14:55

Cynnig o dan Reol Sefydlog 17.42 i Benderfynu Gwahardd y Cyhoedd o’r Cyfarfod
Motion under Standing Order 17.42 to Resolve to Exclude the Public from the Meeting

[78] David Melding: I move that

the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42 (vi).

[79] I see that no Member objects, so we will now meet in private. Please clear the public gallery and switch off the broadcasting equipment.

Derbyniwyd y cynnig.
Motion agreed.

Daeth rhan gyhoeddus y cyfarfod i ben am 14:55.
The public part of the meeting ended at 14:55.