Part of the debate – in the Senedd at 6:20 pm on 18 January 2022.
I'd like to open my remarks by making some very general observations about our experiences with the reporting on these memoranda in respect of our committee's remit. The Minister reflected in her opening remarks on the complexity of the process of this UK Bill being brought forward. We agree with that. We also note from the Minister's remarks that more amendments might be forthcoming in some areas, adding further to the complexity of scrutiny in this Senedd. Yet this Bill also touches on the boundaries of devolution, which adds further complexity to the consent process. We therefore expected the Welsh Government's first memorandum to address this complexity in the context of the consent being sought and, accordingly, to explain clearly why and the circumstances for which consent was being requested. But, unfortunately, the memorandum did not include that information; it didn't provide enough clarity. So, we had, therefore, to request the information we needed to undertake our scrutiny through correspondence.
Our first report in October 2021 drew attention to these issues, and our second report in December 2021 highlighted some further issues with the accuracy of information contained in memorandum No. 2, and there were also clearly difficulties in precision with memorandum No. 3, which were addressed in memorandum No. 4. So, it was for that reason that in our report on memorandum No. 4, laid yesterday evening, we drew a conclusion that I hope will be seen as a respectful and gentle reminder to the Government. We've said before that the provision of timely and accurate information within legislative consent memoranda is quite simply fundamental to enable the Senedd and its committees to scrutinise the Welsh Government and to hold it to account for its use of UK Bills to make legislative provision in a devolved area in particular.
So, before turning to the substance of the provisions that are the subject of consent, can I just say, Minister, we really welcome the inclusion, in the Minister's letter to us of 7 January, of a table, a table that sets out the numbering of the clauses in the Bill as introduced and then as amended? We found this to be really helpful indeed, as it is often, because of the complexity, difficult to track clause numbers as they change, as a Bill passes between the two Houses of the UK Parliament. Now, knowing that other Ministers are listening avidly to these remarks, and indeed the Counsel General, who is here in attendance today, also takes a keen interest in this too, we just hope that this can become a regular part of supplementary memoranda laid before the Senedd as a result of amendments to UK Bills. It would really help, so thank you for that.
Now, turning to the two motions before us, we do agree that the consent of the Senedd is required for the provisions referred to in motion 1, with the exception of clause 61 concerning the common-law offence of public nuisance. Our view as a committee, based on our legal advice, is that the consent of the Senedd is not required, as we consider that the provision falls outside of the devolved purpose test in Standing Order 29.1. This is because the main purpose of the provision is to maintain public order and minimise disruption to members of the public in the vicinity, and public order is a reserved matter under Schedule 7A to the Government of Wales Act 2006.
Turning to motion No. 2, in respect of clause 47 regarding criminal damage to memorials and the mode of trial, we agree that the Senedd's consent is required. Clauses 56 and 57 of the Bill amend sections of the Public Order Act 1986 by broadening the circumstances in which police officers have the power to impose conditions on public processions and assemblies. Clause 62 also amends the 1986 Act and relates to the imposition of conditions regarding one-person protests. These are areas that, in a policy context, are highly controversial, but our remit as a committee is to turn to the technical legal propriety of them. Our view is that the consent of the Senedd is not required for these clauses, as we again consider that the provisions fall outside the devolved purpose test in Standing Order 29.1. Although the provisions do concern the control of excess noise levels, the main purpose of the provisions is to maintain public order and to minimise disruption to members of the public in the vicinity, and as I have noted, public order is a reserved matter under Schedule 7A to the 2006 Act. Clauses 63 to 65 relate to unauthorised encampments. We do not consider that the consent of the Senedd is required for these clauses either, because again the purpose of these provisions, regardless of the policy issues, is the maintenance of public order. In our humble role as constitutional and legal scrutineers, we differ politely but steadfastly on this issue.
Now finally, our report on memorandum No. 4 made two recommendations. The first sought clarification on information contained in memorandum No. 3 relating to the number of amendments that require consent. We are grateful for the Minister's response on this point. Thank you. And I note that an error had occurred when drafting memorandum No. 3, which should have referenced 18 clauses requiring the consent of the Senedd rather than the stated 15.
Our second recommendation concerned the Bill's financial implications. The first memorandum and memorandum No. 2 state that there are no financial implications for Wales in relation to the Bill. However, memorandum No. 3 and memorandum No. 4 state that there
'may be financial implications but this will not be clear until the measures in the Bill are implemented'.
We therefore asked as a committee for the Minister to explain why the position regarding financial implications has changed and, for the Senedd again, I put on record that we are grateful for the Minister's response on this point. I note that the information regarding the fact that there 'may be financial implications' should have been included in all of the memoranda laid in relation to the Bill.
And that is the complete nature of our comments in respect of this, Llywydd. Diolch yn fawr iawn.