The final group of amendments relates to guidance about entering dwellings. Amendment 30 is the lead amendment in this group and I call on David Melding to move and speak to the lead amendment and the other amendments in the group. David Melding.

Amendment 30 (David Melding) moved.

Diolch yn fawr, Llywydd. I move amendment 30 in my name and I speak also to my amendment 31.

Amendment 30 requires the Welsh Ministers to issue guidance to enforcement authorities, constables and authorised officers about entering premises used wholly or mainly as dwellings, that is, people’s homes under the Bill. It stems from a recommendation in the Constitutional and Legislative Affairs Committee’s report on the Bill and a concern that the communication plan for the Bill will not go far enough in ensuring that human rights obligations are instilled in enforcement officers. The main human rights that are engaged in the context of people’s homes are article 8, which provides for the human right to respect for the home and private and family life, and article 1 of protocol 1, which provides the human right to peaceful enjoyment of possessions.

The amendment, therefore, makes a specific requirement for the guidance to cover those two human rights. The guidance can always include other wider guidance about powers to enter people’s homes, but it must include guidance to cover these two human rights, because they are a very real risk or there is a very real risk, rather, that these human rights might be breached when powers of entry are used.

I accept that there are certain safeguards built into the Bill. For example, a warrant to enter a dwelling must be issued by a justice of the peace, and after pressure from the committee the Minister did agree that enforcement authorities will always be public bodies. That is a significant advance. However, the amendment provides an opportunity to go further by providing for targeted guidance that enforcement authorities can easily find, read, understand and implement. That goes to the core of the amendment that they are there at hand for enforcement officers who are usually local authority employees, and may not be widely knowledgeable about the area and the obligations created by human rights law.

The amendment covers all powers of entry under the Bill, not just the powers of entry that apply to the smoking ban in Part 2 of the Bill. So, the areas covered by the amendment are powers of entry that apply to the smoking ban, the register of the retailers of tobacco and nicotine products, the licensing regime for special procedures, such as acupuncture, body piercing, tattooing and electrolysis, and the offence of performing intimate piercings on people under 18. In my view, requiring guidance to be issued in this specific context would in no way cast doubt on other legislation that does not contain a duty to issue guidance.

In her letter to the committee on 10 March, the Minister suggested that public bodies will see a duty to issue guidance and become confused about the operation of other legislation that does not include this duty to issue guidance. I suppose the Minister has visions of enforcement officers and other relevant public servants meeting occasionally to discuss the whole broad range of legislation, particularly that which pertains to human rights, observing there’s a specific call for guidance in this area because of the dangers of enforcement procedures breaching human rights, and then observing that similar stipulations are not in antecedent legislation, and therefore somehow this throws them into the most dreadful confusion. I invite her to make some sense of that incoherence that I’ve just described.

In a subsequent letter of 18 April, the Minister also commented that the amendment has the, and I quote,

‘the potential to cast doubt on the overall coherence of the law, and on the operation of specific restraints on the use of the powers.’

I do find the latter bit menacing, but I do feel the whole comment and approach by the Minister has been incredibly vague to these very specific and constructive amendments that were made by the Constitutional and Legislative Affairs Committee, and I do think that casting doubt on the coherence of the law, should the amendment pass, is very unfortunate. Perhaps I could bring to the attention of the Assembly the Supreme Court judgment issued last year in the case of the Christian Institute and others against the Lord Advocate of Scotland, where the judgment issued by the Supreme Court warned about the dangers of legislation simply relying on a public authority being aware of its human rights obligations. And in paragraph 101 of that judgment, the Supreme Court said that guidance was needed in order to reduce the risk of disproportionate interferences that breach human rights. I couldn’t think of a better definition of what entering people’s homes to ensure proper enforcement could be, in terms of a better illustration, really, of the danger that we face here.

Can I just say, then, that amendment 31 concerns the commencement of this new provision? And I’ll just explain to Members that without making any specific provision around commencement, this new section, if it’s agreed, would automatically fall within section 133(2) of the Bill, meaning that it would only come into force whenever the Welsh Ministers decide to bring it into force. The purpose of the amendment is to commence the proposed new section on guidance on the day in which the Act receives Royal Assent, there providing a clear message that the Welsh Government intends to issue the guidance within a reasonable period of time. I so move.

I call on the Minister, Rebecca Evans.

Thank you. The amendments in this group would require the Welsh Ministers to issue guidance for enforcement authorities on exercising the powers of entry and inspection across the Bill. The guidance would cover how to ensure compliance with convention rights in respect of premises that are used wholly or mainly as a dwelling. This issue has been discussed by the Constitutional and Legislative Affairs Committee earlier in the scrutiny process for the Bill, and I have engaged in correspondence with the committee on this specific point.

In considering the amendments, my starting point has been that I fully agree that compliance with human rights obligations is of paramount importance. I therefore have no disagreement with the intention underpinning the amendments, and I appreciate David Melding’s strong views on this. However, as I recently outlined in correspondence to the committee, my view remains that specific amendments that refer to compliance with human rights obligations on the face of the Bill are unnecessary. Importantly, they also risk unintentionally causing confusion as similar provisions are not included in other legislation. I note David Melding’s rather sarcastic questioning of this principle, but it does remain my view.

I have reached this conclusion for a number of reasons. Firstly, public authorities are already subject to an overarching statutory duty under section 6 of the Human Rights Act 1998 to act compatibly with convention rights in the performance of their functions. Public authorities such as the police and local authorities are already very familiar with the requirements, and should act accordingly. Secondly, appropriate consideration has already been given to this issue on the face of the Bill. A series of specific restraints and safeguards have been included in the Bill in relation to how powers of entry and inspection are to be exercised by authorised officers. For example, authorised officers cannot enter premises by force unless they have a signed warrant from a justice of the peace, and such a warrant is only valid for a limited period of time. These safeguards were further strengthened at Stage 2 when amendments were agreed that provide additional protection for home owners. These help ensure that powers of entry are exercised in a proportionate and appropriate manner, which is particularly important when considering private dwellings. For example, where the occupier of a premises is present when a warrant is being executed, the Bill provides that the authorised officer would need to provide their name, documentary evidence that they are an authorised officer, and supply the occupier with a copy of the warrant.

I believe that such specific, practical safeguards provide a better way of protecting individual rights than the approach suggested by these amendments. They also demonstrate the detailed thought and work that takes place in respect of human rights considerations, and how seriously the Welsh Government takes these issues. I would also emphasise that public authorities will be the enforcement authorities under this Bill. This means that only organisations that are already bound by and well versed in compliance with human rights obligations will be the enforcement authorities, again helping to ensure that the powers are used appropriately.

There is already well-established guidance in place under the code of practice for the exercise by police of statutory powers of entry, search and seizure, known as PACE Code B, which sufficiently covers this issue. This applies both to the police and local authority officers when investigating offences, and places clear emphasis on acting in accordance with the Human Rights Act 1998. If separate guidance were to be produced for this Bill, there would be a significant risk of unintentionally causing confusion, and of casting doubt on the overall coherence of the existing legislative framework that is already well embedded across Wales. For these reasons, I am unable to support the amendments in this group.

I call on David Melding to reply to the debate.

Well, Presiding Officer, you’ll not be surprised that I’m entirely unconvinced by the Minister’s defence, really, of the Government’s obduracy, despite the very real concerns evidenced. One of the sources I quote is the Supreme Court.

Can I, however, thank her for entering into correspondence and at least telling us of the Government’s position? That was helpful. The movement on defining enforcement officers as having to be public authorities, I think that was useful. I welcome that as well. But, you know, ‘unnecessary and confusing’? So, if something already exists in law, you can never make a clear statement about it. If there’s an antecedence, no matter when—you know, PACE is from the 1980s, I think, originally—you can’t state it because you might confuse those who now read this new law, because of course they’ll be thumbing through legislation dotted about the statute books—some of it decades old. I mean, really, can this pass for serious objection to what I would hope would be a reasonable process of making law? I find it very depressing.

Then this business about public authorities is already captured and may be confused, but they already get captured under general obligations. Did you hear what I said about the Supreme Court judgment saying you cannot rely on that assumption, and that you have to develop in guidance clear understanding of specific actions that may infringe human rights? Like under this proposed Bill, enforcement powers resting with people in local authorities entering people’s homes, because we’re talking, usually, about fairly small practitioners who may be using their homes as part of their premises. I do have to say that I think we can expect a bit better than just a simple dismissal when we use an authority like the Supreme Court.

And then, PACE. Can I just—? I did anticipate that this may be used in a rather desperate form of defence by the Government: the Police and Criminal Evidence Act 1984 and its codes. What the Minister’s talking about mostly are codes for police officers, designed to illustrate how to respond in certain situations that police officers often find themselves in in the practice of their important duties. We’re talking about local authorities and people who work for them, who are designated enforcement officers. They’re not police officers. We cannot assume that they would have the detailed knowledge and training that police officers get in PACE, which was introduced originally because of poor and inconsistent practice, and, above all, the requirements in PACE are dotted all about it. There’s nothing in PACE that says how to act appropriately while enforcing obligations under a public health Bill or public health Act passed by the National Assembly. I do think it’s the task of the Government sometimes to really test and scrutinise its own advice that it’s getting from its advisers, and in this case I think you’ve fallen woefully short.

If amendment 30 is not agreed to, amendment 31 falls. The question is that amendment 30 be agreed to. Does any Member object? We’ll proceed to an electronic vote. Open the vote. Close the vote. In favour 20, four abstentions, and 26 against. Therefore the amendment is not agreed.

Amendment 30 not agreed: For 20, Against 26, Abstain 4.

Result of the vote on amendment 30.

Amendment 31 fell.

Amendment 28, Minister.

Amendment 28 (Rebecca Evans) moved.

Formally.

The question is that amendment 28 be agreed to. Does any Member object?

Dim gwrthwynebiad.

Amendment 28 is agreed.

Amendment 28 agreed in accordance with Standing Order 12.36.

Amendment 2, Rhun ap Iorwerth.

We missed one out there, I think.

Apologies, I’ve made a mistake. Amendment 29, Minister.

Amendment 29 (Rebecca Evans) moved.

Yes, formally.

The question is that amendment 29 be agreed to. Does any Member object? Amendment 29 is agreed.

Amendment 29 agreed in accordance with Standing Order 12.36.

Amendment 2, Rhun ap Iorwerth.

Amendment 2 (Rhun ap Iorwerth) moved.

Formally.

The question is that amendment 2 be agreed to. Does any Member object? Amendment 2 is agreed.

Amendment 2 agreed in accordance with Standing Order 12.36.

Amendment 5, Minister.

Amendment 5 (Rebecca Evans) moved.

Formally.

The question is that amendment 5 be agreed to. Does any Member object? Amendment 5 is agreed.

Amendment 5 agreed in accordance with Standing Order 12.36.

Amendment 1, Rhun ap Iorwerth.

Amendment 1 (Rhun ap Iorwerth) moved.

Formally.

The question is that Amendment 1 be agreed to. Does any Member object? Amendment 1 is agreed.

Amendment 1 agreed in accordance with Standing Order 12.36.

And we have now reached the end of our Stage 3 consideration of the Public Health (Wales) Bill, and I declare that all sections of and Schedules to the Bill are deemed agreed.

All sections of the Bill deemed agreed.

And that concludes Stage 3 proceedings, and today’s proceedings.

The meeting ended at 17:38.