Item 7 on the agenda is the Additional Learning Needs and Education Tribunal (Wales) Act 2018 (Supplementary Provisions) Regulations 2019, and I call on the Minister for Education to move the motion. Kirsty Williams. 

Motion NDM7025 Rebecca Evans

To propose that the National Assembly for Wales; in accordance with Standing Order 27.5:

1. Approves that the draft The Additional Learning Needs and Education Tribunal (Wales) Act 2018 (Supplementary Provisions) Regulations 2019 is made in accordance with the draft laid in the Table Office on 12 March 2019.

Motion moved.

Thank you very much, Deputy Presiding Officer. During the Stage 4 Plenary debate on the Additional Learning Needs and Education Tribunal (Wales) Bill, on 12 December 2017, I informed Members that I would need to make some minor technical amendments to section 91 of the Bill when it became an Act. I would like to take this opportunity to thank Members for agreeing to pass the Bill on the basis that the amendments to section 91 would be made at a later date.

Section 91 gives the Lord Chief Justice an agreement function when the Lord Chancellor appoints the president of the education tribunal. It also gives the tribunal president an agreement function when the Lord Chancellor appoints legal chairs. Both agreement functions were inserted to ensure an independent process.

The UK Government made the Judicial Appointments and Discipline (Amendment and Addition of Offices) Order 2017 in December 2017. That Order brought the process of appointing the president and the chairs of the Special Educational Needs Tribunal for Wales, or SENTW, within the Judicial Appointments Commission procedure. That Order could not, of course, have amended the Bill. The purpose of today's regulations is therefore to ensure that the Judicial Appointments Commission's procedures apply to the educational tribunal when it changes its name from SENTW. This secures the objective of an independent process. The regulations also amend Schedule 14 to the Constitutional Reform Act 2005 to refer to the educational tribunal. 

Thank you. Can I call on the Chair of the Constitutional and Legislative Affairs Committee, Mick Antoniw?

Thank you, Deputy Llywydd. We considered these regulations at our meeting on 25 March and reported on 28 March, and we considered the Government’s response yesterday. Our draft report has one merits point, which questions the use of supplementary powers to make changes to the appointment process that applies to the president of the education tribunal for Wales.

The Additional Learning Needs and Education Tribunal (Wales) Act 2018 sets out the procedure for the appointment of the president of the education tribunal for Wales, which involves both the Lord Chancellor and the Lord Chief Justice. The regulations amend the appointment process in the 2018 Act so as to remove the role of the Lord Chief Justice. Our report explains the background to the amending of the appointment process and notes that the process, as set out in the 2018 Act, is legally sound and works as it is currently drafted.

In our report, we did ask the Welsh Government to expand on the use of supplementary powers to reverse provision in an Assembly Act and to clarify which element of section 97(1) of the 2018 Act is being relied upon in order to make these regulations, given that the appointment process in the 2018 Act is not defective. The Government response addresses these points.

We note that during Stage 4 proceedings on the 2018 Act, the Minister for Education referred to

'a very recent development that will require a minor amendment to the Bill when it becomes an Act.'

We do accept that the Assembly was given notice of the change that is being proposed by these regulations, and we accept that the Assembly voted in favour of the Additional Learning Needs and Education Tribunal (Wales) Bill at Stage 4 by 50 votes to zero.

However, we do not believe that Stage 4 is the proper way to announce intentions to make changes to important parts of Assembly Acts, especially changes that arise as a result of a last-minute agreement reached between the Welsh Government and the UK Government. We asked the Welsh Government to clarify why the proposed changes could not have been properly debated during an additional Report Stage. The Government's response says that it considered a number of options and that the Assembly passed the Bill on the basis of the Minister's comments.

The Minister to reply.

Could I thank the Chair of the CLA committee for his comments and his acceptance of the further evidence that I and officials provided with regard to some of the merits points raised in the committee's consideration of these regulations? I would agree that in an ideal situation we would have been in a position to draft the Bill in a way that we would have wanted to. Unfortunately, it was intervention from another place that has, in some ways, caused these difficulties.

I did, as mentioned by the Chair of CLAC, raise these points on the floor during the Stage 4 debate to give clear notice to the Assembly of my intentions and to have a full disclosure that Members would have been voting for the Bill knowing that subsequently these regulations would come.

Today provides an opportunity for Members across the Chamber to comment on the regulations as they are tabled today, but I'm glad it seems that we have a consensus across the Chamber for support of these regulations. What's important to remember is that what they do is ensure an independent process in the appointment of the tribunal chair, and I think that's something that we can all agree on. I'm grateful for the Chamber's continuing support for our reform of additional learning needs provision in our schools. Thank you. 

Thank you. The proposal is to agree the motion. Does any Member object? Therefore, the motion is agreed in accordance with Standing Order 12.36.

Motion agreed in accordance with Standing Order 12.36.