Part of the debate – in the Senedd at 5:07 pm on 11 October 2022.
Diolch, Llywydd. Speaking in that capacity—although, can I just align myself with a lot of the comments made by the Chair of the other committee that I sit on? But also, Minister, I welcome the fact that you're bringing this forward. I think most people in this Chamber will say that this is making progress, and we've been waiting for this, and it's good to see it coming forward. But my remarks are going to be constrained to my role as Chair of the Legislation, Justice and Constitution Committee. It's good to have this debate in front of us. In the report that we laid this morning, we've drawn one conclusion and 17 recommendations, and I note that you're accepting, for all committees, the majority of recommendations, and you'll write to us with other more detailed comments, and we appreciate that.
Our single conclusion concerns this issue that was raised by Llyr there on the bypassing of the Senedd's Stage 1 scrutiny process for Welsh Government Bills. On our committee, we're not persuaded that it was appropriate to do so, or indeed wholly necessary for Welsh Government to seek to do so. It does highlight the risk that that sort of bypassing that bypasses and curtails scrutiny could lead to unintended consequences. None of us would want to see it, but at the worst, it may mean that a Bill of this type may not deliver the outcomes that it is intending to do. We hope that that isn't the case, but hence why we have an in-principle objection to the bypassing of the scrutiny process there.
We believe that the suggestion that the process of law making should be bypassed to potentially facilitate for, in this instance, the pursuit of a legal challenge by Welsh Government—and I say this whatever the merits or otherwise of that challenge—is not to be wholly welcome, because it risks undermining the functions of this legislature. So, we hope that such arguments are not routinely proposed by the Welsh Government in future. The question also arises as to whether the Welsh Government has acted as quickly as it could have done, which seems slightly perverse in what I've just said, but given that the intention to legislate was first stated in March 2020, we do think that opportunities did exist to bring forward either primary or secondary legislation much earlier. So, instead of seeking to expedite the Bill's progress through the Senedd and curtail scrutiny by dropping a Stage there, reducing the opportunities for valuable scrutiny, the Welsh Government could indeed have expedited the Bill's development ahead of its introduction and then done the whole Stages.
And then there's the question of whether this Bill was so urgent—although we all want to see it—at this stage, that it needed to be expedited through the Senedd, or would it have been better being considered by the whole Senedd through the Senedd's emergency Bill procedure rather than being left for the Business Committee to decide on an expedited process? In order to provide clarity on some of these issues, we therefore made six recommendations seeking further explanation from the Minister, and we look forward to hearing from the Minister, either today or in writing, in response to that.
The report that we've produced also highlights concerns that we have with the absence of any reference in the explanatory memorandum to the impact of UKIMA, the United Kingdom Internal Market Act 2020, on the Bill. Minister, once again, I state on the record: we accept that the 2020 Act cannot limit the Senedd's ability to legislate on matters that are within its devolved legislative competence, and you've restated today your clarity that this does not impact on it, as you said to our committee. However, our concern is whether, once law is made by the Senedd, the 2020 Act may impact on how effective the law is because of the market access principles it introduces right across the UK. So, we ask the Minister whether, in not acknowledging the potential impact—and we note that it's potential impact—of the 2020 Act on the practical effect and the enforcement of this Bill, there is any danger that people and businesses affected in Wales are not being provided with accurate information about the effect of this legislation, or whether, indeed, this could result in individuals or businesses being unaware of or misinformed about the full extent of the law as it applies in Wales, or, indeed, uncertainty for local authorities when enforcing some of the provisions in the Bill. So, we hope, Minister, that you can answer some of those today.
We made five recommendations in relation to these points, and they include asking the Minister to explain—we took the novel approach of putting a theoretical case study in our report—whether that's accurate regarding the application of the 2020 Act to oxo degradable plastic that is used as agricultural and horticultural mulch plastic. Not everybody will understand this, but it's a case study that we put to see if the Minister could tell us whether it's right or wrong. The key question is this: while the Bill may ban such plastic, because of the 2020 Act, will Welsh businesses still be able to buy mulch film from elsewhere in the UK, as suppliers in England, Scotland and Northern Ireland would be able to continue to supply to them? So that's what we're looking for an answer on. And Minister, you're shaking your head already, so I hope that you'll be standing up and telling us that that's not correct.
Finally, we made a further five recommendations relating to some of the provisions in the Bill and the rule of law. One of the underlying principles of the rule of law is certainty. We therefore do not share the Minister's view that she expressed to us in committee that legislation could be open to interpretation, or that it's a trade-off between ease of understanding and absolute certainty. The rule of law necessitates a distinction between non-statutory guidance and requirements imposed by law. The Minister made reference to that statutory guidance in her evidence, but the Bill does not currently reflect this position. So, although guidance may influence behaviour, ultimately, the interpretation of the Bill would be left to the courts. So, if we have overly flexible definitions in the Bill, this may result in ambiguity and challenge. We're concerned, therefore, for local authorities enforcing the provisions in the Bill, given that they should not apply or enforce guidance as if it were the law. So, we have recommended that there should be better, more precise definitions in the Bill, rather than seeking to provide clarity through guidance. We also recommend that there's a duty to provide guidance and that the duty includes consultation with stakeholders and should be subject to scrutiny by the Senedd. So, Minister, we look forward to your response. We know that you'll be writing to us in detail as well, but we welcome the generous way in which you opened your remarks to this Bill and we hope that you'll respond positively to those recommendations.