The next group of amendments is group 2, which relates to scrutiny by the National Assembly for Wales. The lead amendment in this group is amendment 5, and I call on David Melding to move and speak to the lead amendment and to the other amendments in the group. David Melding.

Amendment 5 (David Melding) moved.

Diolch, Llywydd, I so move. The first two amendments in this group have arisen from the recommendations put forward by the Constitutional and Legislative Affairs Committee's report—namely, recommendation 7. Amendments 5 and 13 put a requirement on Welsh Ministers to lay directions that are issued under section 5, those regarding constitutional and structural changes, and section 14, regarding certain disposals of land by RSLs, to put such directions before the Assembly within 14 days of that direction being given.

These first two amendments of group 2, in my view, Llywydd, are very significant. Under sections 5 and 14 of the Bill, as it currently stands, Welsh Ministers have the power to issue directions to RSLs regarding the technical and practical aspects of any notifications issued by the RSLs to the Welsh Ministers, in relation to constitutional or structural changes to RSLs, or in relation to disposal of land. Given the importance of the directions and these amendments, the failure to comply with them would result in possible enforcement or penalty notice. To aid transparency, the Constitutional and Legislative Affairs Committee agreed that it would be appropriate to see any such direction laid before the National Assembly within 14 days of that direction being given. At Stage 2, the Minister stated that the scope of the directions under these sections would be, and I quote:

'limited...administrative in nature and will not contain substantive provisions.'

And that she would be, and I quote:

'more than happy to give a commitment that directions given under the new provisions will be published on the Welsh Government’s website'.

Well, I have to say, Llywydd, that I think appearing on the Welsh Government's website is a marvellous thing, but I do think that it should be something that should be published or come to the Assembly as well, within two weeks. I do not think that is in any way an onerous obligation on the Government. In such a scheme of deregulation, necessary as it is, we should not get complacent. I don't think these are merely technical issues. When you look at issues like the disposal of land, if things go askew and off track, bad practices emerge, and it's going to be on something like that. However vigilant the Government intends to be, we need double assurance, and it's our job to scrutinise that. 

Llywydd, the final two amendments in this group put in place a requirement that the Assembly should conduct post-legislative scrutiny of the Bill within a two to four-year period after the day upon which the Bill would receive Royal Assent to become an Act. Specifically, amendment 19 provides that a committee of the Assembly would undertake a review of the Act's operation and, if appropriate, in consequence of its findings, make recommendations for the repeal or amendment of the Act and publish said findings and recommendations. Amendment 2 is a consequential amendment to amendment 19 and will entail the changing of the overview section of the Bill, should the amendment be agreed.

This amendment stems from a recommendation of the sub-committee that did the detailed scrutiny and the consultation, and issued the report, and then endorsed in full committee later when the External Affairs and Additional Legislation Committee received the sub-committee's report. During our deliberations within the sub-committee, we all concluded that post-legislative scrutiny was vital in this case, just because it is an act of deregulation in such an important area involving tenants—firstly, to ensure that the rights of tenants are safeguarded and, secondly, so that RSLs are not disposing of land and assets in a way unanticipated by Government. I think that's really important—how the new scheme operates and being able to reflect on how fit for purpose the legislation is in the light of actual practice, and that, therefore, would benefit from post-legislative scrutiny.

In the Minister's initial written response to the sub-committee's report, it was very welcome to hear that the Minister said, and I quote:

'I would welcome the opportunity for the Welsh Government to be involved in any post-legislative scrutiny process as appropriate.'

End quote. At this stage, we rub our hands and think, 'At last, we've made some progress; there's been a significant shift and, really, the point about this being seen as an act of deregulation is being grasped'. Alas, during Stage 2, we saw a complete volte-face on the part of the Minister, and she argued that, I quote:

'This amendment would restrict the ability of the Assembly to decide how it should prioritise its resources in the future, potentially into the next Assembly term.'

End quote. Llywydd, we are, of course, used to the Executive jealously guarding the privileges of the legislature, so I praise that type of mindset, but I do think it's misfired in this case, and, in fact, I think it's mere sophistry. Firstly, on the argument of tying a future Assembly, if this Bill is enacted soon, as is every expectation, we have three years in which to conduct that post-legislative scrutiny, and the window of two to four years would obviously be open to us, and we could complete this work ourselves. So, it would not be necessarily us binding anyone other than ourselves.

I have to say that the way legislatures operate is replete with obligations inevitably being created on the legislative arm of Government over significant areas—sunset clauses have the same effect in committing a legislature to future action, either to vote to maintain an Act or to end it—and that's an important principle. In fact, we place all sorts of duties on future Assemblies in the way they have to handle statutory instruments and introduce regulations that are agreed by the affirmative resolution procedure or the superaffirmative procedure, and this has, obviously, an impact on time, scale of work, et cetera. But, of course, in what we propose, a committee could be convened, do one session and decide, you know, that the Act is working magnificently, and nothing is therefore required. Given the weight of what could happen, and the importance of this Bill, I do not think that is in any way a burden—I think it is our bounden duty to ensure that what we put in place is going to be fully fit for purpose and we're crafting strong law.

Indeed, there is one actual example of a Welsh Act placing an obligation on a future Assembly, and that's the Public Audit (Wales) Act 2013, in respect of what type of employment future auditor generals can do, and publishing a list in relation to that.

Can I just say, the Law Commission themselves have stated, and I quote, that:

'Post-legislative scrutiny would translate into better regulation and into developing a more stringent focus on implementation'?

So, it clearly has that advantage. Can I also say, Llywydd, what an excellent piece of post-legislative scrutiny occurred on the Mental Health (Wales) Measure 2010? I regard that as a seminal piece of work, not least because it did pick up unanticipated consequences, which did need public policy to be adapted.

So, Llywydd, I think post-legislative scrutiny should be seen routinely in important areas of public policy as part of the legislative process. I think it's entirely appropriate, on occasion, to require either the current Assembly or a future Assembly to undertake that due diligence, and I therefore move the amendment.

We will be supporting the amendments in this group. Scrutiny is supposed to be one of the core functions of this Assembly, and there has been a weakness with previous legislation in that, often, that post-legislative scrutiny hasn't been given the prominence it should have been given. So, we will support amendment 19 on this basis, and I really don't think that it's for the Government to decide what the National Assembly should be doing in relation to the role of the committee structures. I think it's something that we should decide as a legislature, and I think that's something, obviously, I hope that we do now, but I don't think that should be an imposition of a viewpoint, which I feel, in this regard, it may have come over as, unfortunately, even if that wasn't the intended consequence. 

I think there is an argument that binding future Assemblies—and it's likely this binds ourselves, rather than a future Assembly, anyway—into post-legislative scrutiny is a good thing, and it's been a weakness of the process so far that we can address here. 

Turning to amendments 5 and 13, we will be supporting these as well. They may seem minor procedural amendments that the Government may claim are not necessary, but something being not necessary doesn't make it harmful. We can, of course, have an assurance that directions may not contain substantive provisions, but laying them before the Assembly carries that extra check in case a different Minister or Government changes their mind. It won't cost the Government anything or change policy, but they add reassurance, and, as I outlined earlier, we do have concerns about the unforeseen consequences of this Bill. So, giving the extra protections of these amendments would be helpful.    

I call on the Minister, Rebecca Evans. 

Thank you. So, as we've already heard, the External Affairs and Additional Legislation Committee, in its consideration of the Bill, recommended that the National Assembly conducts post-legislative scrutiny of the Bill should it become an Act to ensure, in particular, that tenants' rights are safeguarded and that RSLs are not disposing of land and assets in a way unanticipated by the Welsh Government.

As I said in my response to the committee and during Stage 2 proceedings, the Welsh Government welcomes any scrutiny by the Assembly, and will, of course, assist where possible. A core function of this Assembly is, of course, scrutiny—scrutiny of the Government’s actions, scrutiny of Bills, and scrutiny of the implementation of those Bills once they become an Act, and there's absolutely nothing in this Bill that changes that. We clearly welcome scrutiny. And there's nothing to stop that committee that David Melding referred to being convened and doing a short piece of work, deciding all is well, or a longer piece of work to look at things in more detail. Again, nothing in this Bill prevents that.

So, scrutiny of the Bill can already be undertaken at the Assembly’s discretion, without forcing the Assembly to consider it within defined timescales. Amendment 19 provides that the review must take place within two to four years after Royal Assent, and, as we've heard, that will potentially bind a future Assembly, although I recognise there are different views as to whether or not that is something that we would want to see.  

If these amendments were to be passed, I am concerned about the precedent this may set, and the consequences it may have for a future Assembly’s ability to decide on its priorities, especially if these types of requirement for post-legislative scrutiny start to appear in more Acts as time goes on. 

In respect of the concerns raised about this Bill and disposals by RSLs, the purpose of regulation is to protect tenants and investment in social housing and, again, I assure you that robust regulatory oversight of these areas will continue. Any RSL that is not upholding tenants’ rights or is disposing of land and assets in ways that do not meet the required standards will be investigated and any failings addressed. 

To make it clear, although I consider that there are sufficient safeguards in place, as I’ve already stated, I welcome scrutiny by the Assembly about the implementation and impacts of this Bill. I do not, however, consider it necessary to restrict the ability of the Assembly to decide its priorities in future, and, therefore, I would recommend that these amendments are not supported.

In respect of amendments 5 and 13, relating to laying directions, I've considered this matter very carefully and I remain content that, given the nature and the content of the directions, the Bill as it stands is appropriate. The scope of the directions to be given under sections 5 or 14 of the Bill is very limited. The directions will deal with the delivery, form and content of a notification to be given to the Welsh Ministers, and the time frames for doing so. The directions are therefore administrative in nature and will not contain substantive provisions.

For example, it's intended that the directions will set out the template to be used when an RSL sends in a notification, so that all required information is received in a consistent format. I also expect the directions to specify the e-mail and correspondence address that should be used to send in the notification, as well as the time frame in which the notification will be received. I've already committed to publishing the directions on the Welsh Government website, where they will be accessible to everyone. I'm also very happy to keep Members updated as directions are made and the Bill is implemented.

I appreciate that directions will be a requirement imposed under an enactment and therefore there is the potential that wider intervention powers may be available if the directions are not complied with. However, this does not detract from the fact that the directions are administrative in nature, and it's important to remember that the Welsh Ministers are bound by public law in the exercise of their functions and any actions taken as a result of non-compliance will be proportionate to the failings.

There are already a number of other direction-making powers in the Housing Act 1996, and across a wide variety of other legislation, that do not have any procedure attached to them, for example the ability to make directions about service charges made by social landlords.   

I recommend that these amendments are not supported. However, as I have stated, I am happy to commit to keeping you informed when directions are made.

I call on David Melding to reply to the debate. 

Oh, lord. I mean, there are times when you think you're in Lewis Carroll's sort of wonderland. So, we heard from the Minister that post-legislative scrutiny is a good idea, but we shouldn't say so, certainly not in this Bill. She is quite happy for it to happen but is concerned about anything being made a legislative requirement because of the effect that would have on the future exercise of the legislature's prerogative.

Well, I think one way of testing that would be not to whip your colleagues on this particular point. But I don't think for a minute you're going to do that, because you're doing this as a matter of Executive convenience. You shouldn't hide behind this, 'Oh, yes. We think post-legislative scrutiny is fine in principle but never in actual practice'. It should be in this Bill. The Law Commission says that we should see post-legislative scrutiny as a routine part of significant law making on areas of real public importance. And it's a pity that you're not able to grasp that point this afternoon.

Then we have similar absurd contradictions on the requirement to lay directions here in the Assembly: 'Trust us as a Government, these are all routine administrative matters'—the Minister used the term 'administrative' this afternoon. Well, this is how parliamentary democracy works, Minister. We scrutinise the Government's actions, we decide if they're just merely administrative and don't have wider public concerns; it's our job to do that. It is nothing like an onerous obligation for you to lay these directions in the Assembly and not just publish them on the Welsh Government website. If they need to be published there, they need to be laid here. I move the amendments. 

The question is that amendment 5 be agreed to. Does any Member object? [Objection.] We proceed, therefore, to an electronic vote. Open the vote. Close the vote. In favour 23, no abstentions, 30 against. Therefore, amendment 5 is not agreed.

Amendment 5: For: 23, Against: 30, Abstain: 0

Amendment has been rejected