We now move on to item 6, which is a statement by the Counsel General: consultation on the Welsh Government prosecution code. I call on the Counsel General, Mick Antoniw.

Thank you, Deputy Presiding Officer. The Welsh Government takes the enforcement of animal welfare, food production and fisheries rules and laws very seriously. Over the past nine years, marine enforcement officers, acting on behalf of the Welsh Ministers, have investigated infringements of fisheries laws in our waters, leading to 38 successful prosecutions, including 11 last year. We have also taken enforcement action that has in some cases involved taking a prosecution concerning breaches of legislation to control the spread of TB and TSE, to govern the handling of animal by-products, to regulate the marketing of horticultural products and the production of eggs for human consumption. Our prosecution responsibilities also involve social care, childcare and independent healthcare.

In all areas, we are committed to fair and effective prosecution as a way of maintaining law and order, protecting individuals, the public and our resources, and ensuring that we all live in a safe and just society. We also recognise that every prosecution has serious implications for all involved, including witnesses and defendants. When the Welsh Government takes forward prosecutions, it is important that the public has confidence in our actions, and a major part of that is explaining how we have made our decisions and how we support justice.

For that reason, I am pleased today to launch a consultation on the proposed Welsh Government prosecution code. Responsibility for prosecution decisions in the Welsh Government rests with me as the Counsel General, unless prosecution decisions are explicitly restricted to the Welsh Ministers by the relevant statutory provisions. How I take those prosecution decisions is set out in the ministerial code. So, I must exercise prosecution functions vested in me, independently of the Welsh Government, and other members of the Government must not become involved. Where I institute proceedings, defend or appear in legal proceedings relating to the functions of the Welsh Ministers, then again I must act independently of Government.

There are occasions when the function of prosecutor rests with the First Minister or one of the Welsh Ministers. The ministerial code requires liaison with me so that I may provide advice on the prosecution decision as the law officer. But in each and every case, I need to base my advice and exercise my decisions by considering whether the case is suitable for prosecution. I do that by reference to a prosecution code. Currently, I use the Crown Prosecution Service code for Crown prosecutors, which requires consideration of the full code test.

This test has two distinct stages: first, the evidential stage and, secondly, the public interest stage. The evidential stage requires prosecutors to be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect for each offence. The public interest stage requires prosecutors to go on and consider whether a prosecution is required in the public interest. The CPS code sets out a number of factors for prosecutors to consider when deciding on the public interest.

The CPS code, however, was developed primarily for use in relation to mainstream criminal offences. It therefore takes into account the type prosecutions that are commenced by the CPS and the police. There are also parts of the CPS code that do not apply to the Welsh Government. So, in light of this, and coupled with the fact that the Welsh Government’s prosecution functions continue to grow, it is my view that it is appropriate for the Welsh Government to develop and follow its own prosecution code.

The proposed Welsh Government prosecution code will therefore provide guidance to prosecutors on the principles to be applied when making decisions about Welsh Government prosecutions. To be clear, the proposed code is based on the existing CPS code, but it has been adapted to take Welsh Government prosecution functions into account. Therefore, the proposed code does not include all of the matters that are contained in the CPS code. For example, the code does not include the threshold test that applies in respect of custody cases.

Our code does, however, include specific public interest factors that relate to Welsh Government prosecutions. For example, prosecutors will need to consider the impact of any offending on the environment. The greater the impact of the offending on the environment, the more likely it is that a prosecution is required. And prosecutors will need to consider whether there is an element of danger to the health or safety of the public. The proposed code also sets out my general power to commence prosecutions under the Government of Wales Act 2006.

As I have stated earlier, the decision to prosecute is a serious step. The proposed code is intended to ensure that fair and consistent decisions about prosecutions are made within the Welsh Government. Before I issue the code, I wish to give stakeholders and members of the public the opportunity to comment and provide their views. This will enable me to issue a Welsh Government prosecution code that is clear, accessible and fit for purpose.

Can I thank the Counsel General for his statement? The proper enforcement of animal welfare, food production and fisheries law is very important—these are serious responsibilities. And of course, with effective enforcement, self and natural compliance is increased. That, presumably, is the objective of what we want.

These powers have been held by the Welsh Government for some time, but, as we produce more law, we are also creating new enforcement responsibilities—for example, those in the recent public health Bill. In this area, I do think that the reference to the evidence base is important, because in many of these offences, the evidence for them, or the potential evidence, will be gathered by people other than police officers.

I wonder if the Counsel General listened to the debate on the public health Bill at Stage 3, when all the opposition parties backed an amendment, for example, on stating clearly the human rights responsibilities of enforcement officers. These officers aren’t necessarily even in the public sector. At least in that particular law, the public health Bill, that, in the end, was clarified—that they would be local authority employees.

But to have a clear statement in law of human rights obligations is surely important when we gather evidence. We, at the moment, rely on PACE and general principles scattered about the statute book, rather than expressing it clearly in the law that we are passing. I wonder if he is worried about the implications for meeting human rights obligations, which, of course, is one of the general prosecution principles set out in his proposed code, under section 11. So, it is something I think that we need to pay particular attention to, and it’s only by exercising our responsibilities properly there that we will give people full confidence that the law is being enforced with rigour but also with all appropriate fairness on the individuals and organisations concerned, particularly in reference to human rights.

I’d also like to know if he has made any—. He hinted that these responsibilities are growing, but has he made any assessment of the likely increase in prosecution and enforcement activity that will now occur as Welsh law becomes more and more distinct? What sort of capacity does the Welsh Government have to meet those responsibilities? The current department that he heads—does it have the required capacity to exercise these functions in the future?

I do think this is a welcome statement, and it’s brought attention to an area that is, perhaps, on our learning curve, but I suspect that it will become more and more important in the future.

Firstly, I thank the Member for, I think, the very important points and very thoughtful points that he has made. Of course, he’s absolutely correct about the points that are raised, actually, in the draft principles with regard to human rights. This code—although it has considerable similarities to the Crown Prosecution Service code, we did decide that because of the growth of responsibilities, and the growth of prosecution responsibilities in particular, we did need to have a Welsh code that actually reflected, I think, the nuances and some of the emphases particularly arising from Welsh legislation.

So, as well as that particular point, there’s the point that we made about the particular issues of impact on the environment, because many of our powers relate to things like the environment, food, agriculture and so on. But he’s absolutely right also, of course, that those powers are extending into a whole range of other areas as well, and we need to ensure that not only is the code effective but that the way in which it is applied is robust.

I think the point that the Member was beginning to get towards was the issue as to whether at some stage in the future there will need to be a Welsh prosecution service as opposed to the existing arrangements. That isn’t something that is intended at the moment, but it is not off the radar—it’s one of those things that, particularly in the current climate, as more powers come, as we increase legislation and as the Welsh criminal code effectively becomes more significant, we have to have considerable regard to. Of course, all of the points about the quality of evidence, the robustness of the evidence and the way in which we define the public interest, which is set out in detail in the guide, are, indeed, very important.

I think the other point he’s made is that there are other bodies, of course, within Wales. Local authorities, as he’s mentioned, are traditionally prosecuting bodies—very similar powers in respect to the Health and Safety Executive in areas within their jurisdiction. Of course, although they have their own code, I think we would hope, over a period of time, that the reliance on the Welsh code will become the basis for that. But there is obviously a lot happening—a lot in flux.

I think he mentioned also the issue of how we’re going to assess the increase. I think what we’ve started doing is to look at the numbers of cases we’ve really had over the past number of years: how they’re increasing and where they might increase, and what the challenges are for the enforcement officers and the issues there with the equipment they need, their own security and so on within certain circumstances—that’s something that I was very aware of when I went to see some of the environmental protection officers in west Wales, where they raised issues of needing the body cameras and so on, which would be of considerable assistance and I understand are now being implemented.

So, all of those are under review. It is something that I have been focusing my attention on, with the points in mind that the Member has made. It will be my intention in due course to make further statements on the record on the numbers of prosecutions, where they’re taking place, so that there is the greatest possible transparency.

Can I welcome the statement from the Counsel General for Wales, and also to welcome the general direction of travel, as it were, in developing Welsh Government’s prosecution codes, and this consultation is very much welcome? And as David Melding has already alluded to, we are talking about serious matters here in terms of animal welfare, food production and fisheries, rules and laws that need to be taken seriously.

So, just a couple of questions and issues arise. We have the number there for successful prosecutions. I was just wondering how many prosecutions were considered but then not brought forward—in other words, not captured by those figures? In other words, how realistic a prospect is it of a prosecution resulting from offending in terms of—? So, we have the 38 successful prosecutions, but have we got a handle on exactly how much potential offending in these fields was actually going on?

Following on from that, could the Counsel General for Wales confirm that we do have the legal tools at the disposal of Wales at the moment to enforce Welsh laws?

And the third point is that, obviously, policing and the courts are not devolved to Wales, and the Counsel General has mentioned that in passing as regards the general point about UK CPS codes. Bearing in mind that policing and enforcement are not devolved and that, in fact, we’re losing some enforcement issues with the new Wales Act, is there a danger that the UK Government’s codes will supersede the Welsh Government’s prosecution code in actual practice, that being the case? I’m looking for reassurance there, really. And in terms of—well, not really a philosophical debate, but in terms of momentous potential decisions happening, I’m talking about the interface between these prosecution codes and, say, matters pertaining to the great repeal Bill as regards the devolved powers we have in agriculture and fisheries, which are in this place now, we face losing them unless, obviously, there’s universal approval of the continuation Bill that this Assembly has passed to make sure that we don’t lose those European powers in the devolved fields that we have now. So, I’m looking for further reassurance from the Counsel General, really, that that interface is something that we’re keeping an eye on and, obviously, keeping our hands on those powers that we have now. Thank you.

Thank you. Again, you raise a number of important cases. At the moment, the prosecution decisions are taken by me, so the evidence will be before me. Where there are specialist areas, there will be analysis by agents and lawyers who are specialists in those areas, and then the decision ultimately is for me as to whether the prosecution takes place or not. You raise an important point in terms of how many cases are there where decisions have not been taken. That isn’t an area I have sufficient information on, but it is an important area. I think at this stage, where we are is that the number of prosecutions is relatively small, and I think where a decision was taken the success rate has been extremely high. It’s one of the things I wanted to look at.

The point you raise, and a very important one, of course, is the changing scenario within the whole area of legal jurisdiction that is interlinked in some way. And, of course, we want to make sure that where we are passing laws that there is the capacity to properly investigate and properly enforce the laws, otherwise those laws have little status and little value. At the moment, I’m confident that that is the case. One of the reasons for actually bringing this statement and this code before the Assembly is actually to inform Members of what is actually happening within that area—what we actually do with the prosecution powers that the Welsh Government does have, or that the Counsel General has, and how they’re used, and to make those more transparent and, I think, more accountable in terms of what we’re actually doing. So, I envisage further information on this over a period of time. Of course, the Member will be aware that, of course, as we pass more legislation, we actually increase those particular areas.

I’m satisfied that we have those legal tools and I’m satisfied that we have the skills. One of the first things I became acquainted with and became an expert in was the 2012 scallop dredging regulations and many other similar pieces of legislation that we have, which sort of sound amusing on the face of it but are incredibly important and involve quite serious criminal activity. So, the prosecutions that have taken place have been very important. And some of them, in terms of food protection—I think one I did report on resulted in one person receiving a fine of just under £3,000, another person receiving an 18-month suspended prison sentence, and action, under the Proceeds of Crime Act 2002, amounting to over £0.25 million. So, these are very serious areas.

There’s also an important point in terms of the fact that we do liaise with the police—that the enforcement officers, where appropriate, have that level of engagement. That is also very important because there are cross-overs between some of the offences that occur in respect of Welsh laws, but also other areas of criminal activity. So, that is something that’s important.

Do I worry about applying the UK code as opposed to our code? Well, no. The only code that I will apply will be ultimately the Welsh prosecution code. I obviously work in the environment that exists at the moment, but of course, once the consultation has been concluded and once a code has been finalised after considering all those representations, then that will be the code that I actually apply and am held to.

In respect of Brexit, losing powers—well, of course, the position of the Welsh Government is against any diminution of those particular powers. I stand very strongly by that. We will be monitoring very, very closely all the issues that arise in respect of Brexit and any implications that will arise from that. At this stage, it is too early to be more precise than that about that—only that it’s a very valid point and one that I’m looking at very closely.

Thank you very much, Counsel General.