Part of the debate – in the Senedd at 6:52 pm on 15 December 2020.
Thank you, Llywydd. Our report contains 11 recommendations, and I thank the Minister for addressing our report and some of those recommendations in her opening remarks, and in particular the commitment to apply the affirmative procedure to certain parts of the Bill in connection with the recommendations that our committee has made.
My opening remarks will focus on our consideration of the human rights matters. We have acknowledged that the Minister has given a lot of thought to human rights issues when developing the Bill, which we welcome. It is vital that the new curriculum for Wales is both designed and delivered in a way that is objective, critical, pluralistic and altogether compliant with the convention rights of both children and parents.
In this regard, we consider that the codes that will be made under sections 6 to 8 of the Bill to be of fundamental importance. As such, we are unconvinced by the Minister’s reasoning as to why these codes should be subject to the negative procedure in the Senedd. While we welcome the Minister’s commitment to involving the relevant professions in developing the codes, we could not see why such co-construction should influence the determination of which scrutiny procedure would be applied. It was our view that an enhanced affirmative procedure should apply to the making of the codes. Therefore, our first recommendation was that the Bill be amended to require the codes made under sections 6 to 8 of the Bill to be subject to the affirmative procedure, whilst retaining the consultative provision in section 72(2)(a).
Just moving on quickly to section 25 of the Bill, Members will know that section 25 enables Welsh Ministers to make regulations that may impose further curriculum requirements in relation to pupils aged 14 to 16 at a maintained school. The Minister considers that flexibility is needed to see how schools’ practice develops. However, we have concerns that this is a broad power that lacks sufficient detail, and our third recommendation is that section 25 be amended to include a non-exhaustive but comprehensive list of the circumstances in which the regulation-making powers in section 25(1) may be used. Furthermore, recommendation 4 says the Bill should be amended so that regulations made under section 25(1) are subject to the affirmative procedure.
Section 40 of the Bill also contains a substantial power for the Welsh Ministers. In recommendation 6 of our report, we asked the Minister to use today’s debate to clarify why the power in section 40 is needed in addition to the power in section 50. We also asked the Minister to explain how the power of direction in section 40 may be used by Welsh Ministers. Given the nature of the power in section 40 of the Bill, and the fact that it is not subject to a Senedd procedure, recommendation 7 asks that the Welsh Ministers notify Senedd Members via written statement on each occasion that the power of direction is used.
Moving on quickly again to section 47 of the Bill, the Minister told us that she has already assessed the need for using the powers in section 47 at the outset to set time limits in respect of appeals about temporary exceptions for individual pupils. In our view, these time limits should be placed on the face of the Bill. In order to provide flexibility, this could be accompanied by a provision permitting the time limits to be amended by regulations. However, such a Henry VIII power must be subject to the affirmative procedure. Our recommendation 8 deals with these matters.
In the event that the Minister rejected recommendation 8, our ninth recommendation is that the Minister amends section 47(8) so that the Welsh Ministers are placed under a duty to make regulations that make further provision regarding the time limits for appeals under the section, rather than providing the Minister with a general power.
My final comment relates to section 50 of the Bill, which the Minister did address. She herself recognised that the disapplication or modification of the curriculum for any pupil is a serious step. There are also no conditions attached to the exercise of the power in section 50. For these reasons, we did not consider that the negative procedure is appropriate, and our tenth recommendation was that the Bill should be amended so that regulations made under section 50 are subject to the affirmative procedure. And, of course, I welcome—. I think it was the Minister's confirmation that the affirmative procedure would be applied; I hope I heard that correctly from the Minister, but thank you for that. Diolch, Llywydd.