Part of the debate – in the Senedd at 5:20 pm on 13 March 2018.
So, we reported on this Bill on 5 March and made six recommendations to the Cabinet Secretary for Health and Social Services, and I hope our report proves helpful to Assembly Members in taking decisions on this Bill. The consideration of human rights is an important requirement when assessing matters of legislative competence. In light of this consideration, our first recommendation relates to human rights issues in the context of section 16 of the Bill, and this section enables authorised officers entering premises under sections 13, 14, and 15 of the Bill to take
'such other persons...as the officer considers appropriate'.
During our scrutiny, we considered the breadth of this phrase, and in particular to ensure that the power in section 16 is not misused. We noted that in the Police and Criminal Evidence Act 1984—PACE—code B requires an officer entering premises to introduce themselves and anyone they have with them. Conversely, under section 16(2) of this Bill, the officer must only
'inform the occupier of the officer's name'.
We see no reason why such a requirement should not apply to such other persons as the officer takes into the premises. For that reason, we've recommended that the Cabinet Secretary tables an amendment to section 16 of the Bill to require the occupier to be informed of the name of the persons accompanying an officer when entering premises. We believe there should be a duty on the officer to have regard to Welsh Government guidance. Our second recommendation, therefore, suggests that the Cabinet Secretary tables amendments to place a duty on the Welsh Ministers to issue guidance about the exercise of all powers and duties under the Bill and to ensure that the Bill includes appropriate duties to have regard to that guidance. As with our scrutiny of all Bills, we considered the balance between what is on the face of this Bill and what is left to subordinate legislation.
Members will be aware, as the Cabinet Secretary and the Chair of the Health, Social Care and Sport Committee have already said, that the minimum unit price for alcohol is to be set using a regulation-making power that is subject to the affirmative procedure. By putting the minimum unit price in regulations, it would mean that Assembly Members could not table amendments to the Bill to set a higher or a lower price than suggested. The only option available to Assembly Members would be to accept or reject the minimum unit price as set out in the regulations, because they cannot be amended. And, as such, we believe that this approach actually restricts the power of the legislature. We therefore believe it would be better to place the minimum unit price on the face of the Bill and to provide Welsh Ministers with a power to amend that figure using regulations subject to a superaffirmative procedure. In our view, this would lead to a much more thorough debate on the central principle of the Bill, which is what the minimum unit price for alcohol should be. Recommendations 3 and 4 of our report reflect our position on these points.
In making recommendation 3, we noted the comments of the Cabinet Secretary regarding the amendments of primary legislation by secondary legislation, the so-called Henry VIII powers. This committee has consistently expressed concern at the excessive use of such powers. We've accepted there are circumstances where they represent a sensible and appropriate compromise, provided they are subject to the affirmative procedure. We therefore do not consider it appropriate to argue that significant matters of public policy should be consigned to regulation-making powers because there may be a need to change policy in the future and because legislatures do not like Henry VIII powers. Whether a matter appears on the face of the Bill should be determined by its policy significance rather than whether it may or may not need to change in the future.
I'd like to conclude, therefore, by briefly just summarising our views on the inclusion of illustrative examples on the face of the Bill, and on the inclusion of a sunset clause. We can see merit in including illustrative examples of calculations of the applicable minimum price of alcohol on the face of the Bill. However, it was our view that it may prove confusing if the minimum unit price is contained in regulations and differs from the value used in the illustrative example. It is also unclear why no illustrative example is actually included in respect of section 7. I note that the Cabinet Secretary, of course, raised and dealt with this issue in respect of his references to accessibility, and, of course, the balance between the interpretation of accessibility as opposed to the concerns that arose with the CLAC considerations with regard to a potential confusion.
Overall, we do not consider that the Cabinet Secretary has explained with sufficient clarity why it is necessary and best to place illustrative examples on the face of the Bill as opposed to an alternative option—[Interruption.] Sorry. Yes.