Constitutional and Legislative Affairs Committee
Report: CLA(4)-11-11 : 14 November 2011
The Committee reports to the Assembly as follows:
Instruments that raise no reporting issues under Standing Order 21.2 or 21.3
Negative Resolution Instruments
CLA51 - The Non-Domestic Rating Contributions (Wales) (Amendment) Regulations 2011
Procedure: Negative.
Date made: 1 November 2011
Date laid: 2 November 2011
Coming into force date:30 November 2011
CLA54 - The RTM Companies (Model Articles) (Wales) Regulations 2011
Procedure: Negative.
Date made: 5 November 2011
Date laid: 8 November 2011
Coming into force date: 30 November 2011
Affirmative Resolution Instruments
CLA50 - The Incidental Flooding and Coastal Erosion (Wales) Order 2011
Procedure: Affirmative.
Date made: not stated.
Date laid: not stated.
Coming into force date: 1 December 2011
Instruments that raise reporting issues under Standing Order 21.2 or 21.3
Negative Resolution Instruments
CLA48 - The Landfill Allowances Scheme (Wales) (Amendment) Regulations 2011
Procedure: Negative.
Date made: 25 October 2011
Date laid: 27 October 2011
Coming into force date: 21 November 2011
CLA49 - The Audit and Assessment Reports (Wales) (Amendment) Order 2011
Procedure: Negative.
Date made: 31 October 2011
Date laid: 1 November 2011
Coming into force date: 22 November 2011
The Committee agreed the Reports under S.O.21.2 and S.O.21.3 on these statutory instruments, which are attached as Annexes 1 - 2.
Other Business
Committee Inquiries: Inquiry into the Granting of Powers to Welsh Ministers in UK Laws
The Committee took oral evidence from Mr Mike Lewis, Chief Executive and Ms Daisy Cole, Head of Influencing, PR & Child Policy, both representing Welsh Refugee Council.
Resolution to Meet in Private
In accordance with Standing Order 17.42(vi) the Committee resolved to exclude the public from the remainder of the meeting to discuss the Committee’s submission to the Commission on a Bill of Rights and the evidence submitted thus far on the Inquiry into the Granting of Powers to Welsh Ministers in UK Laws.
David Melding AM
Chair, Constitutional and Legislative Affairs Committee
14 November 2011
Annex 1
Constitutional and Legislative Affairs Committee
(CLA(4)-11-11)
CLA48
Constitutional and Legislative Affairs Committee Report
Title: The Landfill Allowances Scheme (Wales) (Amendment) Regulations 2011
Procedure: Negative
These Regulations revise the terminology in the Landfill Allowances Scheme (Wales) Regulations 2004 (the Regulations) to ensure consistency with other legislation under the Waste and Emissions Trading Act 2003 (the Act).
Technical Scrutiny
As these Regulations do not cite all the powers used to make the principal Regulations, it is necessary to be very careful to refer to the correct ones when making amendments. In this case no reference is made in the introductory paragraph to sections 12(2) and 15 of the Act, which are considered relevant to the changes made here to regulations 6 and 10 respectively of the principal Regulations.
The Assembly is invited to pay special attention to these Regulations under Standing Order 21.2 (vi).
Merits Scrutiny
No points are identified for reporting under Standing Order 21.2 in respect of this instrument.
David Melding AM
Chair, Constitutional and Legislative Affairs Committee
14 November 2011
The Government has responded as follows:
The Landfill Allowances Scheme (Wales) (Amendment) Regulations 2011
Section 12
The Government accepts the Committee’s point about section 12(2) which should have been cited in the enabling powers. Section 12(2) is the power under which the amendment to regulation 6(5)(b) of the principal regulations can be made. The amendments to the remainder of regulation 6 are made under section 12(1) of the Act
The Government acknowledges that the omission may produce ambiguity about whether an amendment to regulation 6(5)(b) of the principal regulations has been made. Although the Government considers it unlikely that the term “biodegradable municipal waste” could be interpreted as relating to anything other than the waste dealt with by waste disposal authorities under the landfill allowances scheme, the Government will make regulations to amend regulation 6(5)(b) of the principal regulations within six weeks.
Section 15
The Government believes that the amendments to regulation 10 of the principal regulations are authorised by section 11(1) and (2)(b) of the Act and that section 15 of the Act is concerned with information of a different character to that currently dealt with by regulation 10 of the principal regulations. The Government concludes that the citation of section 12 in the principal regulations was an error. The reasons which lead us to these conclusions are explained below.
There are two provisions in the Act which confer power to make provision about the maintenance of registers; sections 11 and 15.
Section 11(1) of the Act confers power to make provision for the purpose of carrying Chapter 1 of the Act into effect. By section 11(2)(b), those regulations can make provision for the maintaining of registers of matters relating to landfill allowances.
Section 15 of the Act is more specific and confers power to make regulations requiring the monitoring authority to maintain a register containing “monitoring information” of a description specified in the regulations. “Monitoring information” is information or evidence that is:
- acquired by the monitoring authority in carrying out its functions under the Act; or
- disclosed to the monitoring authority by another monitoring authority which has acquired the information or evidence in carrying out its own functions under the Act.
The Government interprets “acquired” and “disclosed” in section 15 to mean that the information or evidence in question is information or evidence which is initially in the possession of someone other than the monitoring authority and which is subsequently obtained by the monitoring authority during the course of carrying out its monitoring role under the landfill allowances scheme.
We reach this view because of the nature of the monitoring authority’s role under the Act and thus the context in which information and evidence is likely to be acquired by, or disclosed to, a monitoring authority.
Broadly speaking, a monitoring authority’s role is to monitor the operation of the landfill allowances scheme generally, to monitor the amount of biodegradable collected municipal waste sent to landfills in particular and to audit the performance of waste disposal authorities in complying with their duties under the Act.
To enable it to carry out this role, the Act allows regulations to require waste disposal authorities to make returns to the monitoring authority. The Act also allows regulations to permit the monitoring authority to require waste disposal authorities to produce records for inspection or removal and to supply information and evidence relating to the sending of biodegradable municipal waste to landfill.
In addition to this, the Act allows regulations to permit the monitoring authority to obtain records kept by landfill operators, using force if necessary.
The Government believes that it is in this context that information or evidence will be “acquired” by the monitoring authority and thus it will be the same kind of information obtained in a similar context by another monitoring authority that will be “disclosed” to a monitoring authority.
Regulation 10 of the principal regulations does not relate to this kind of information. Instead, it concerns:
(a) information that is brought into existence as a result of decisions made and published under the Act by the Welsh Ministers; that is to say, the allowances allocated to each waste disposal authority under section 4 of the Act and any alterations to those allocations made under section 5 of the Act; and
(b)information which the monitoring authority itself creates; that is to say:
(i) the amount of biodegradable collected municipal waste sent to landfill by each waste disposal authority; and
(ii)the balance between that amount and the amount for which the waste disposal authority holds landfill allowances.
The information at (i) is the product of applying a statutory factor of 61% to the amount of collected municipal waste sent to landfill by a waste disposal authority. Part of the information needed to make this calculation will be contained in a waste disposal authority’s records and returns to the monitoring authority and those records and returns will be “acquired” by the monitoring authority in carrying out its functions under the Act. The Government does not consider that the resulting calculation is either “acquired by” or “disclosed to” the monitoring authority.
The information at (ii) is the product of subtracting the amount at (i) from the number of allowances held by the authority and published by the Welsh Ministers under section 4 and / or 5 of the Act. Again, the Government does not consider that the resulting calculation is information or evidence “acquired by” or “disclosed to” the monitoring authority.
For these reasons the Government considers that the provision made at regulation 10 of the principal regulations is authorised by section 11(1) and (2)(b) of the Act.
Annex 2
Constitutional and Legislative Affairs Committee
(CLA(4)-11-11)
CLA49
Constitutional and Legislative Affairs Committee Report
Title: The Audit and Assessment Reports (Wales) (Amendment) Order 2011
Procedure: Negative
This Order amends the Audit and Assessment Reports (Wales) Order 2010 by providing that, in respect of financial years beginning on or after 1 April 2011, the date by which the report is to be sent the Welsh Ministers and the Welsh improvement authority concerned is to be 31 January in the financial year during which the audit was carried out or to which the assessment relates.
Technical Scrutiny
No points are identified for reporting under Standing Order 21.2 in respect of this instrument.
Merits Scrutiny
The Assembly is invited to pay special attention under Standing Order 21.3(ii) in respect of this instrument - (ii) that it is of political or legal importance or gives rise to issues of public policy likely to be of interest to the Assembly.
The Audit and Assessment Reports (Wales) Order 2010 was made in English only despite being extremely short, and was the subject of an adverse report by the then Constitutional Affairs Committee for that reason. A copy of that report is annexed.
The current Order is made bilingually, but because it has been drafted as an amending order, the amendment to the 2010 Order is in English only and the substantive law is still in English only. Had the current Order revoked and replaced the 2010 Order, it would have replaced an English statement of the law with a bilingual item of legislation.
This example highlights the importance of having bilingualism rather than translation at the core of the legislative process. It also shows the need to have regard to earlier reports by this Committee and its predecessors when drafting legislation on the same subject.
David Melding AM
Chair, Constitutional and Legislative Affairs Committee
14 November 2011
ANNEX
Constitutional Affairs Committee
CA(3)-01-11
CA508: The Audit and Assessment Reports (Wales) Order 2010
Procedure: Negative
Section 19 of the Local Government (Wales) Measure 2009 requires the Auditor General for Wales to issue an audit and assessment report in respect of a Welsh improvement authority. This Order amends section 19(3)(a) of the Measure in respect of the financial year beginning 1 April 2010 by extending the date by which the Auditor General for Wales must send copies of any report to the Welsh Ministers and the Welsh improvement authority concerned. The deadline is changed from 30 November 2010 to 31 January 2011.
Technical Scrutiny
Under Standing Order 15.2 the Assembly is invited to pay special attention to this instrument:-
1. The Order has been made in English only. The Explanatory Memorandum contains the following statement: “The Minister for Social Justice and Local Government has further determined in this particular circumstance that it is not reasonable or practicable for the order to be made in English and Welsh.”. However, the Order, including the Explanatory Note is only 392 words long, which is just over half the length of the accompanying letter which explains the breach of the 21 day rule, which letter has been translated. Moreover, save for the standard terminology used in Statutory Instruments, the terminology used in the Order is that used in the letter. In those circumstances it not apparent why it should be considered either not reasonable or practicable to make the Order bilingually.
[Standing Order 15.2(ix)]
Merits Scrutiny
No points are identified for reporting under Standing Order 15.3 in respect of this instrument.
Legal Advisers
Constitutional Affairs Committee
November 2010
The Government has responded as follows:
It is the Welsh Assembly Government’s view that in this instance it was not reasonable or practicable to translate The Audit and Assessment Reports (Wales) Order 2010 given the time constraints faced in making the Order. The comments regarding the accompanying letter are noted. However, the Order required legal translation and checking which was not possible to accommodate within the given time frame.