Item 6 is next, and this is the Trade in Animals and Related Products (Amendment and Legislative Functions) and Animal Health (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2022. I call on the Minister for rural affairs to move the motion—Lesley Griffiths.

Motion NDM8164 Lesley Griffiths

To propose that the Senedd, in accordance with Standing Order 27.5:

1. Approves that the draft The Trade in Animals and Related Products (Amendment and Legislative Functions) and Animal Health (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2022 is made in accordance with the draft laid in the Table Office on 22 November 2022.

Motion moved.

Thank you for the opportunity to discuss the background to today's debate on the Trade in Animals and Related Products (Amendment and Legislative Functions) and Animal Health (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2022. Trade in animals and animal products is regulated by a suite of domestic legislation and retained EU law, and import controls are implemented and enforced at our border by the Trade in Animals and Related Products (Wales) Regulations 2011. These regulations relate to the continuation of the existing trade rules. Imported goods will continue to meet current import health requirements, such as those relating to the health status of the country of origin, appropriate testing and veterinary certification, among others.

While the withdrawal Act retained a good deal of EU law in domestic law, the law in this area was, in part, governed at an EU level by directives that were not retained by that Act. These regulations are the final piece in a long series of statutory instruments that have been made to ensure that all outstanding EU exit-related corrections in the animal health and welfare space are captured in the domestic statute book.

These regulations deal with those parts of the 11 EU directives that we want to retain in the Welsh statute book; specifically, animal health import standards and administrative and legislative powers. These regulations are drafted by reference to the EU directives, as modified by the regulations, and contain new Welsh Ministers’ administrative and regulation-making powers, equivalent to the functions previously held at EU level under these directives. They also make more minor operability amendments.

These regulations are made using the affirmative procedure, utilising powers conferred on the Welsh Ministers by the European Union (Withdrawal) Act 2018, and in relation to a small number of amendments to domestic legislation, Regulation (EU) 2017/625 on official controls, the official control regulation. They were laid before the Senedd on 22 November and are due to come into force on 16 December should they be approved.

The Legislation, Justice and Constitution Committee has scrutinised the draft regulations and prepared a report, and I recognise the number of scrutiny points raised by the LJC committee in its report, and welcome its valuable feedback and scrutiny. My officials provided a full response to the LJCC report. This has been an extremely long and technically complex 100-page instrument for my officials to draft, which is a consequence of the already complex legislative context that the regulations will operate in, namely 11 EU directives, nine retained EU regulations and two domestic sets of regulations, totalling several hundred pages of legislation.

The Welsh Government has carefully considered the points raised by the LJCC, and understands the committee’s concerns. However, I am confident that they can be resolved, because they do not have a substantial impact upon the operation of the regulations, and on balance, should not prevent the regulations from being made. The Welsh Government has considered the urgent powers under the withdrawal Act as a means of correcting the defective drafting. However, it was not deemed to be a workable solution, and this is explained in the response to the LJCC’s letter of 12 December.

Of the 34 reporting points, it is proposed that a short amending instrument will resolve two of the reporting points. The amending instrument will be made as soon as is practicable. In the short intervening period before the amendment is made, these discrepancies can be managed operationally, and there will be no adverse impact on traders nor any risk of compromising animal health and welfare. Twelve reporting points are minor errors that can be corrected on publication. In relation to 18 points, officials are content that they can provide a rationale for the drafting that should resolve the LJCC’s concerns. The final three reporting points do not require a Government response or action.

I am asking Senedd Members to support the draft regulations because they contain new administrative and legislative powers for the Welsh Ministers, which will be lost if these regulations cannot be made. The enabling powers in the withdrawal Act cease to be available after 31 December 2022. Similar regulations have been made by the Secretary of State that will apply in relation to England and Scotland. If the regulations are not made, Welsh Ministers will not have the same suite of powers as the other UK administrations, which are needed to respond swiftly to dynamic animal disease risks that can affect trade.

These regulations will ensure that the collective legal framework, side by side with the common UK animal health and welfare framework governing imports, is consistent across Great Britain and provides stability and reassurance to traders and authorities throughout Wales.

The Chair of the Legislation, Justice and Constitution Committee now—Huw Irranca-Davies.

Thank you again, Llywydd.

Thank you again. We considered these regulations yesterday afternoon in our committee, and again, our report has been laid to inform Members this afternoon. I would also like to draw Members' attention to a letter that we wrote to the Minister yesterday afternoon, which is of great significance to this afternoon's discussion as well.

The Minister has explained today the purpose of these regulations—and her view on the importance of these, and of course, the cut-off date of 31 December—that they seek to address failures of retained EU law to operate effectively, and to address other deficiencies arising from the withdrawal of the United Kingdom from the European Union. The regulations seek to do this by modifying retained EU law and by amending regulations made in 2011 and 2018, and the Minister has also made clear the complexity of this, and the detail that her team of advisers and legal advisers and drafters have entailed in working through this. We understand that complexity because we've been going through that as well. But I do have to say, as Chair of the Legislation, Justice and Constitution Committee, I am in a slightly unusual and difficult and challenging position this afternoon, because our report, released last week and sent to the Minister last week, highlights 27 technical points. Five of those relate to defective drafting, 10 relate to inconsistencies between the English and Welsh versions, 12 have asked for further explanation, and our report also contains seven merits points. Unfortunately, for whatever reason, the Welsh Government did not respond to our report in time for our meeting yesterday afternoon, so we were not able to take into account its views before we proceeded with that as a committee and made a final report for the Senedd.

The Welsh Government response was issued late this morning. Having only had the time to briefly read what we’ve been sent, it looks like, as the Minister has said, there's agreement with roughly half of our reporting points, but we've not had time, I have to say, to fully analyse the response in detail. Now, based on past experience, Llywydd, we would normally expect regulations of this type now to be withdrawn, to be re-laid, and for this debate to have been rescheduled. But as the Minister has said, there is an issue here because there is a relevant enabling power in the EU Withdrawal Act 2018 switching off at the end of this month.

So, as a committee, we have concerns that the Senedd is being asked to approve regulations that contain multiple identified known errors and deficiencies and which, in the committee’s view, in many respects make it inaccessible. We don't have the time to engage in detailed debate on this because we have not been able to consider the Minister's repose as a committee. My committee will need time to fully assess the response but, Minister, my initial reaction is that, in some of these matters, we still don't have an adequate response to explain the concerns that we have raised. Let me give you an example: in reporting points 2 and 5, or point 30. In points 2 and 5, we have highlighted that the regulations do not contain a definition of 'the appropriate authority' for the purpose of these regulations. You’ve told us that regulations 5(1) and (2) confer the role of appropriate authority on Welsh Ministers, but it is not clear how you can arrive at that view. It may be helpful if you can expand on that in your answer. On point 30, we noted the creation of a new Henry VIII power that will allow regulations that amend primary legislation—and those regulations will be subject to the negative procedure. Now, this goes against a principle that my committee and its predecessor committees have long advocated—that regulations amending primary legislation should be subject to the affirmative procedure.

Minister, you state that the regulation-making power is limited, and that may be the case in mind of what you intend to do with this, but, Minister, such regulations can do things for supplementary reasons. As the Chair of the committee that looks at regulations regularly, and the use of executive powers on a weekly basis, I can say that ‘supplementary’ can be used as a way of doing many, many things. I wonder if, assuming the Welsh Government does have the powers, the Minister would be content to give a commitment today to bring forward regulations early in the new year to change the procedure for this from negative to affirmative.

Minister, we took the decision to write to you urgently after our meeting yesterday afternoon because of our continuing concerns with these regulations, and we asked you to address a number of questions, so that Members of the Senedd could make an informed decision today. We received your response this afternoon, just after 3 p.m., so again, it has not been possible to fully assess what we have been told. But I do note, Minister, that you believe that it is appropriate to proceed with submitting the regulations to the Senedd, and to a vote if necessary this afternoon, and that you are confident that the issues we have raised can be resolved because they do not, in your view, have a substantial impact upon the operation of the regulations.

You have also said—Llywydd, I'm conscious that I'm slightly over, but I have a couple of points—

It's okay. You carry on. 

Minister, you've also said that you've decided against the use of the urgent made affirmative procedure, which is an option that's open under the EU (Withdrawal) Act 2018 as a means of correcting the defective drafting highlighted by the committee, because you did not consider it to be a workable solution. We have not, of course, had the time to consider this response fully either.

You have confirmed that a correcting instrument, which you propose to make in early January using powers in the Animal Health Act 1981, will be needed to address two errors, while you will be asking for 12 others to be corrected before the regulations are published by the National Archives. It is, I would say on behalf of the committee, regrettable having to rely on such an approach in relation to what are important regulations. 

So, to my fellow Senedd Members in conclusion, I would simply highlight my committee’s view that there are still remaining many issues with these regulations, albeit with the Minister signalling to us that the axe drops on midnight 31 December. So, should Members of the Senedd accept the Welsh Government’s arguments today, there are a number of questions and important matters that remain, not least the issues I have highlighted this afternoon. The Senedd is being asked to pass a defective instrument, and from my committee's standing, that is strange. So, Minister, I'd welcome your assurance that such a request will not be put in front of the Senedd again on behalf of Welsh Government, and that the Welsh Government will provide detail to my committee and to the Senedd on how it can avoid this happening in future. Diolch yn fawr iawn, Llywydd. 

Before I start, I want to put on record that my group have no objection to the regulations, but we do have objections to the way that the Welsh Government has presented these to the Senedd today. Is it right that we as Senedd Members have to vote on poorly worded regulations that are, in fact, defective? The Legislation, Justice and Constitution Committee, which I sit on, identified 34 technical and merits points. In addition, I'm led to believe that there are also 70 other issues with grammar that have been noted in these regulations. I've sat on that committee for a short time, but having this amount of errors in regulations is unprecedented. 

My group are disappointed that the vote on this is even happening today, considering the large amounts of defective elements in these regulations, and it has given the committee a lack of time to scrutinise this legislation and regulations properly. A letter arrived in my inbox at 15:18 today. I don't think that that's enough time for me, as a member of that committee, to sit down to scrutinise it properly, while having to do other commitments here in this Chamber today. 

My group also want to know, Minister, how we've ended up in this situation. If these regulations have been in train for a long time, why is the lateness of laying these regulations coming today, and why are we forcing the Senedd to vote on defective legislation? I don't think it's right. What I'd like to know is what process are you going to use if we pass this today to amend these regulations, what timescale you will be working to, and what procedure you'll be using to amend these regulations. My group today will be voting against these regulations, as I've said earlier, not because we disagree with the regs, but due to the Welsh Government using Senedd Members to pass defective legislation and regulations that we don't know the consequences of doing. And in my view, if we vote for these today, we could be putting this Parliament at risk.

Secondly, the Government is wasting Senedd time doing this, it's wasting Government time, and it's also going to be wasting committee time to go back to amend these regulations, which the Government should have got right in the first instance and not have to put this through today. As a Parliament, we have a duty to ensure that the best legislation and regulations are put through this Senedd, and putting this through today, I and my group believe sets a very dangerous precedent of putting poorly worded, defective legislation through, putting it on the statute book, which we don't believe is appropriate for a modern, effective Parliament. And I would just like to ask the Minister, in closing: have you had any discussions with your officials about whether there's any potential risk with us putting this through today, and about any reputational damage that this could cause for the Senedd? Diolch, Llywydd. 

These regulations in front of us today are a real cause for concern. Huw Irranca-Davies, Chair of the LJC committee, has eloquently and powerfully explained the details of the concerns regarding what is an extraordinarily defective piece of work. I understand that you will be concerned that this has to be passed before the end of this year, and I would echo the LJC's question: what are the implications if this was not passed? I look forward to hearing the Minister's response to this vital question. Also, did the Minister think about this before presenting the defective set of regulations so late in the day? I'd further ask the Minister and the Government to consider carefully how we reached this point in the first place. There are numerous flaws in the definitions, which is no small matter. There are differences between the Welsh and the English versions. It includes incorrect references. If this were course work submitted for grading, then it would have failed miserably. But it's not; it's far more serious than that. This isn't a case of arguing on policy; it's nothing to do with policy. We support the general thrust of the policy, which is sound, but we cannot in good conscience allow a flawed piece of work to become law. Someone somewhere would have to pay a heavy price for this mess, were it to be on the statute book. The Government really shouldn't be presenting this to us today. Not only is it shoddy in the extreme, but, by having poor legislation like this, with mistakes that renders the whole document useless, it potentially undermines trust in devolution and our ability to legislate properly.

I understand full well that, if this is not passed, that regulations will not be in place, and that sits uneasily with me. But, at the end of the day, that's not our fault; that responsibility sits entirely on the shoulders of the Government. It's not a case of 'better to have poor legislation than no legislation at all'—that's completely the wrong attitude. We need legislation that a court of law can uphold; we need correct legislation. This is not it. I understand that you've given assurances and that some corrections will be made as soon as is practicable, but the fact remains that we will therefore be voting on the wording in front of us today to become law—a flawed piece of work. We can't allow that and we are therefore minded to vote against these regulations. I'd finally urge this Government not to put us in this situation again.

The Minister for rural affairs, Lesley Griffiths, to reply.

Thank you very much, and I'd like to thank Members for their contributions to this debate, particularly Huw Irranca-Davies as Chair of the LJCC, and other members of that committee as well, and I absolutely understand and appreciate the concerns that have been raised by all Members who contributed in this debate. I will certainly endeavour to ensure this does not happen again, and certainly those discussions I will be continuing to have with officials. And I'm grateful to the Chair of the LJCC for the two meetings we held over the last 24 hours. So, thank you very much for that.

I've already committed to bringing forward amendments to the regulations in the new year, and I will do that as soon as is practicable, and I commit to changing the negative to affirmative procedure, which the Chair requested I do. As I said, the changes made by these regulations are required to ensure that the vast programme of previous corrective SIs operate within the correct reference to the EU directives that aid their function, and they will help traders by providing a consistent set of controls across Great Britain, whilst also safeguarding Welsh Ministers' ability to diverge in future, if they should wish to do so. The changes are important to ensure that we have minimal disruption to imports, when the transitional staging period ends at the end of the year and new import controls apply fully to EU imports, once phasing in of the import checks is complete, in line with the UK Government's future borders target operating model. The regulations have been designed following an extensive review by officials of EU law that was, until now, not part of our statute book—laws that are really essential for the proper functioning of our border controls, which in turn protect both public and animal health and welfare here in Wales, and I would ask Members to support. Diolch.

A question was asked during the debate, of me, on whether there would be any reputational risk of passing these regulations today for the Senedd: I would say that that is a matter for all of you to consider, when casting your vote, on deciding whether the regulations should be passed today or not.

The proposal therefore is to agree the motion. Does any Member object? [Objection.] There will be a vote on these regulations during voting time.

Voting deferred until voting time.