Assembly to debate the general principles of the Landfill Disposals Tax (Wales) Bill

17 March 2017

Article by Helen Jones, National Assembly for Wales Research Service

View this post in Welsh | Darllenwch yr erthygl yma yn Gymraeg

Image from Flickr by Adam Levine. Licensed under Creative Commons.

The Landfill Disposals Tax (Wales) Bill was laid before the Assembly on 28 November 2016, and introduced in plenary by the Cabinet Secretary for Finance and Local Government on 29 November 2016. The Assembly will debate the general principles of the Bill on 21 March 2017.

The Landfill Disposals Tax (Wales) Bill (LDT) is concerned with establishing the legal, administrative and operational framework to replace Landfill Tax (LfT) in Wales in April 2018. Landfill Tax is currently a UK tax on the disposal of material as waste by way of landfill at landfill sites which are permitted under environmental legislation. The current tax was introduced in 1996 as a key environmental behaviour change driver in encouraging the diversion of waste from landfill, greater recycling, reuse and recovery of waste. Since the tax was introduced it has contributed to a significant reduction in the proportion of waste sent to landfill, and an increase in recycling.

This Bill is the third piece of legislation related to the devolution of tax powers in the Wales Act 2014. The Bill was preceded by the Tax Collection and Management (Wales) Act 2016 which established the legal framework necessary for the future collection and management of devolved taxes in Wales and the Land Transaction Tax and Anti avoidance of Devolved Taxes (Wales) Bill, which will replace Stamp Duty Land Tax from April 2018.

Further information on the background to the Bill, an overview of its parts, a summary of financial implications, and a Welsh glossary are provided in the Research Service’s Bill Summary (PDF, 844KB).

The Finance Committee reported (PDF, 1MB) on its Stage One consideration of the general principles of the Landfill Disposals Tax (Wales) Bill on 10 March 2017.

The Finance Committee’s report sets out a number of recommendations aimed at strengthening the legislation. For example, the Committee would like to see the proposed rates of taxation, a list of qualifying materials and provisions for bad debt relief, included on the face of the Bill.

Whilst the Welsh Government intends to bring forward secondary legislation in relation to some of these provisions, the Committee remains concerned that secondary legislation is not subject to the same amount of scrutiny as a Bill.

The Committee also believes that businesses need certainty when it comes to the application of new tax legislation, and that including such detail in the law itself would help to address concerns.

The Committee heard considerable evidence in relation to the importance of the Landfill Disposals Tax Communities Scheme. The Committee recommend that a Communities Scheme is included on the face of the Bill to show commitment to the scheme going forward, but accept that some of the detail could be specified in regulations.

The Constitutional and Legislative Affairs Committee considered the appropriateness of the provisions in the Bill about powers to make subordinate legislation. Its report (PDF, 2MB) was also published on 10 March 2017.

Subject to the Assembly agreeing the general principles of the Landfill Disposals Tax (Wales) Bill, the Bill will proceed to Stage Two (detailed Committee consideration of the Bill and any proposed amendments). Stage Two proceedings are expected to be completed by 26 May 2017.

Devolution of energy and environmental powers: is the new settlement a lasting one in the face of Brexit?

14 March 2017

Article by Katy Orford, National Assembly for Wales Research Service 

Darllenwch yr erthygl yma yn Gymraeg | View this post in Welsh

The devolution settlement is changing under the Wales Act 2017 which received royal assent on 31 January 2017. This article explores what this means for energy and environmental powers in Wales, and also highlights the different attitudes to the devolution of powers following withdrawal from the EU.

Devolution – the current ‘conferred powers’ model

The current devolution settlement is based on a ‘conferred powers’ model. Schedule 7 of the Government of Wales Act 2006 sets out the 21 devolved areas for which the Assembly can legislate. Everything else falls to the UK or European Parliaments. Areas devolved to Wales include, amongst other things, the environment, agriculture, fisheries, planning and energy. For example, the Assembly has recently passed three key pieces of legislation in relation to the environment in Wales; the Environment (Wales) Act 2016, the Well-being of Future Generations (Wales) Act 2015 and the Planning (Wales) Act 2015. At present all laws passed by the Assembly must comply with EU law which is of particular relevance for the environment as many policy areas are shared with the EU including agriculture, through the Common Agricultural Policy, and nature conservation, via the Birds and Habitats Directives.

Devolution – the ‘reserved powers’ model

The Wales Act 2017 introduces a ‘reserved powers’ model of devolution. This turns the situation on its head; it sets out the areas outside the Assembly’s legislative competence, leaving everything else devolved to Wales. This is more similar to the situation in Scotland. The reserved powers model is due to come into force in April 2018 and the model in Schedule 7 of the Government of Wales Act 2006 will apply up until that date.

New powers in the field of energy and the environment brought to Wales

In addition to introducing the reserved powers model, the Wales Act 2017 brings new powers to Wales in the field of energy and the environment. Most of these changes will not come into effect until next year, with many requiring additional legislation. The Wales Act 2017 will give Wales:

  • Responsibility for marine licensing in the Welsh ‘offshore region’– 12 nautical miles out to the median line (currently limited to the ‘inshore region’ – 0-12 nautical miles);
  • Power to designate areas in the Welsh offshore region as Marine Conservation Zones (MCZs) (limited to the inshore region currently- Skomer is the only existing Welsh MCZ);
  • Power to consent energy projects with a generating capacity of up to 350MW for both onshore and inshore energy extending the current 50MW limit for the onshore and 1MW limit for the inshore. This would include the planned tidal lagoon in Swansea Bay. Onshore wind projects will continue to have no upper limit;
  • Responsibility for licensing onshore oil and gas, including the extraction of shale gas, and for new coal mines;
  • Power of consent for ‘associated development’ for energy projects, for example transport links and overhead power lines to the same body that is responsible for the main project;
  • Power to make building regulations in respect of ‘excepted energy buildings’ – buildings that form part of energy infrastructure; and
  • Additional power to legislate over water supply and sewerage.

Implications of Brexit on the devolution settlement

The Wales Act 2017 has come at an interesting time as the UK Government prepares to trigger Article 50 and start the formal process for the UK’s withdrawal from the EU. As Wales shares powers with the EU, especially in environmental fields, there are questions around whether the settlement will change as a result of Brexit.

The Welsh and UK Government have expressed different interpretations on where powers currently shared between Wales and the EU will lie. The UK Government has made reference in its Brexit white paper to the ‘repatriation’ to the UK of existing EU powers to set common regulatory frameworks:

[…] even in areas where the devolved legislatures and administrations currently have some competence, such as agriculture, environment and some transport issues, most rules are set through common EU legal and regulatory frameworks, devised and agreed in Brussels. When the UK leaves the EU, these rules will be set here in the UK by democratically elected representatives.

As the powers to make these rules are repatriated to the UK from the EU, we have an opportunity to determine the level best placed to make new laws and policies on these issues, ensuring power sits closer to the people of the UK than ever before.

The view set out in the Welsh Government / Plaid Cymru white paper on Brexit is quite different in that powers returning from the EU, in devolved areas, will land in Wales rather than Westminster:

Currently a range of powers already devolved to the National Assembly for Wales and the Welsh Government are operated within an EU regulatory framework. These include agriculture, fisheries, environment and economic development. At the point of UK exit from the EU, when EU regulatory and administrative frameworks cease to apply, these powers will continue to be devolved in Wales.

The Welsh Government / Plaid Cymru white paper highlights the constitutional implications and challenges of EU withdrawal are particularly acute in the field of environment and rural affairs:

These policy areas are all significantly devolved and over the 17 years since devolution began there has been significant divergence of policy direction between the different parts of the UK.

On Saint David’s Day the Prime Minister addressed devolution and the importance of UK frameworks and an internal single market:

… we are discussing with the devolved Administrations the whole question of the UK framework and devolution of issues as they come back from Brussels. The overriding aim for everything that we do when we make those decisions is to ensure that we do not damage the important single market of the United Kingdom, a market which I remind the right hon.

A key question facing Wales today is whether the ethos of the UK Government’s Command Paper, Powers for a Purpose: Towards a Lasting Devolution Settlement for Wales will be challenged on the UK’s withdrawal from the EU.

Assembly to debate the general principles of the Public Health (Wales) Bill

23 February 2017

Article by Philippa Watkins, National Assembly for Wales Research Service

View this post in Welsh | Darllenwch yr erthygl yma yn Gymraeg

The Public Health (Wales) Bill was laid before the Assembly on 7 November 2016, and introduced in plenary by the Minister for Social Services and Public Health on 8 November 2016. The Assembly will debate the general principles of the Bill on 28 February 2017.

The Health, Social Care and Sport Committee reported (PDF, 962KB) on its Stage One consideration of the general principles of the Public Health (Wales) Bill on 10 February 2017.

The Bill sets out a series of specific proposals in discrete areas of public health policy: tobacco and nicotine products; ‘special procedures’ (acupuncture, body piercing, electrolysis and tattooing); intimate piercing; health impact assessments; pharmaceutical services, and; provision of toilets.

Further information on the background to the Bill, an overview of its parts, a summary of financial implications, and a Welsh glossary are provided in the Research Service’s Bill Summary (PDF, 996KB).

The Public Health (Wales) Bill has been broadly welcomed, however a number of stakeholders have described it as a ‘missed opportunity’ to introduce measures to tackle some of the most significant public health issues, including obesity, physical inactivity, and loneliness and isolation. The Welsh Government has emphasised that the Public Health Bill will focus on specific areas where legislation is an appropriate tool, and that it sits alongside a ‘broader suite of actions’ for improving health (including other legislative action, public health services, programmes and campaigns).

The Health, Social Care and Sport Committee’s report calls on the Welsh Government to use all available levers, including opportunities presented by legislation and existing powers, to take action on obesity and other priority public health issues. The specific proposals included in the Bill are generally welcomed by the Committee. The Committee’s report sets out a number of recommendations aimed at strengthening the legislation. For example, the Committee wants to see the provisions about intimate piercing strengthened to protect young people up to the age of 18 (the Bill as introduced sets the age restriction for intimate piercing at 16).

The Assembly’s Finance Committee reported (PDF, 780KB) on the financial implications of the Bill on 10 February 2017. The Constitutional and Legislative Affairs Committee considered the appropriateness of the provisions in the Bill about powers to make subordinate legislation. Its report (PDF, 702KB) was also published on 10 February 2017.

Subject to the Assembly agreeing the general principles of the Public Health (Wales) Bill, the Bill will proceed to Stage Two (detailed Committee consideration of the Bill and any proposed amendments). Stage Two proceedings are expected to be completed by 7 April 2017.

Public Heath (Wales) Bill (PDF, 996KB)

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The Wales Bill passes the Assembly and Parliament

27 January 2017

Article by Alys Thomas, National Assembly for Wales Research Service

View this post in Welsh | Darllenwch yr erthygl yma yn Gymraeg

Empty chamber from above

On Tuesday 17 January 2017 the National Assembly for Wales debated a Legislative Consent Motion on the Wales Bill. According to a convention (“the Sewel Convention”) the UK Government would not normally bring forward or support proposals to legislate in relation to Wales on subjects in which the Assembly has legislative competence without the Assembly’s consent. The consent of the Assembly is gained via a Legislative Consent Motion (LCM). The Wales Bill changes the powers of the Assembly therefore an LCM was required.

The motion, moved by the First Minister, stated:

To propose that the National Assembly for Wales, in accordance with Standing Order 29.6, agrees that provisions in the Wales Bill, in so far as they fall within or modify the legislative competence of the National Assembly for Wales, should continue to be considered by the UK Parliament.

The First Minister opened the debate. He explained that the Labour group had decided to look at the Bill “as a package” and on balance, decided to support the LCM although that decision was not easy.

When questioned about the key factor in choosing to support the Bill he replied:

The issue with Brexit has been the issue of Sewel for me. The Prime Minister herself said today that there will be no roll-back of powers, and I have to take her on her word, but if it is enshrined in law that there’s a requirement of consent from a devolved parliament or assembly, then that obviously carries more weight than if it’s just a convention. So, enshrining that in law is important, not just in terms of Brexit negotiations, but in terms of negotiations on a number of issues in the future where the UK Government will not be able to say, ‘Of course, in Scotland it’s the law, but in Wales, it isn’t, so we don’t have to pay Wales the same regard as Scotland.’

Huw Irranca-Davies AM, Chair of the Constitutional and Legislative Affairs Committee, which scrutinised the Bill said:

Wiser people than I have suggested that this Bill will not be the durable, once-in-a-generation settlement promised by Secretaries of State for Wales, and that the complexity and conditionality involved means we may potentially be ceding some ground. But there is no doubt that the ground on which we stand will be firmer and surer as a result of moving to a reserved-powers Bill. It stands us in good stead as we face a transition to Brexit and other external shock factors.

Plaid Cymru opposed the Bill on the grounds that it rolled back the powers of the Assembly. Party leader Leanne Wood AM stated:

We were told that a reserved-powers model would be delivered, and this has been one of the key demands for Plaid Cymru for many, many years, yet it quickly became apparent that the list of reserved powers would contain more than 200 reservations, and that anything relating to that list could be out of bounds by this Assembly in the future. Compared to the conferred-powers model, that represents a roll-back of our powers, and in our judgment it would therefore represent a roll-back on the 2011 referendum result.

The politics of this are clear to me. Following its Supreme Court defeat on the agricultural wages Bill, the UK Government wanted to remodel the Welsh constitution to avoid further defeats.

The Conservatives voted in favour of the Bill and party leader Andrew R.T. Davies AM particularly welcomed “that income tax will be coming to this institution to make sure that we do have greater accountability in the way the money has been spent in this institution and by the Government.”

UKIP voted against the Bill as they objected to the removal of the requirement for a referendum before devolving income tax powers. Leader Neil Hamilton AM said:

 I do believe that, whilst the broad principles of the Bill are worthy of support, the way in which this has been handled has been very far from perfect, and, in regard to the removal of a referendum provision in relation to the devolution of income tax powers, I believe that that is a constitutional deficiency that we ought not to ignore.

The Assembly voted 38 in favour of giving its consent for the Bill to proceed and 17 against.

The following day the Wales Bill received its Third Reading in the House of Lords and was passed.

On the 24 January the Bill was returned to the House of Commons for consideration of the House of Lords amendments. The amendments were agreed and the Bill now awaits Royal Assent.

A further development on 24 January was the Supreme Court ruling on Article 50 which also ruled on the Sewel Convention in the devolved legislatures. It concluded that:

[…] the Convention operates as a political constraint on the activity of the UK Parliament. It therefore plays an important role in the operation of the UK constitution. But the policing of its scope and operation is not within the constitutional remit of the courts. The devolved legislatures do not have a veto on the UK’s decision to withdraw from the EU.

The ruling will be covered in more detail in a forthcoming blogpost.

Meeting the healthcare needs of children and young people in school. Does the law need changing in Wales?

24 January 2017

Article by Sarah Hatherley, National Assembly for Wales Research Service

View this post in Welsh | Darllenwch yr erthygl yma yn Gymraeg

There is a concern that the rights of Welsh children and young people with healthcare needs during the school day are not protected in law to the same level as children in England, putting them at risk of an academic and health disadvantage in comparison.

Providing children with the support they need to participate in all aspects of school life

Image from flickr by alishavargas. Licenced under Creative Commons.

Image from flickr by alishavargas. Licenced under Creative Commons.

Most pupils will at some time have a medical condition that may affect their participation in school activities. For many this will be short-term; perhaps finishing a course of medication. Other pupils have long term chronic medical conditions that, if not properly managed, could limit their access to education. Such pupils are regarded as having healthcare needs. Most children with healthcare needs are able to attend school regularly and with some support from the school, can take part in the normal school day. However, evidence suggests that support for children and young people with healthcare needs in school is inconsistent across Wales.

The Welsh Government published draft guidance ‘Supporting learners with healthcare needs’ in February 2016 which replaces the previous 2010 guidance: ‘Access to Education and Support for Children and Young People with Medical needs. The Welsh Government published its Consultation document alongside the draft guidance and sought views between February and April 2016. The revised version is due for publication early in 2017, but will it go far enough to make sure children with health conditions get the care and support they need in school?

The 2010 guidance document provides advice on meeting the educational needs of children and young people with healthcare needs in the education setting. The guidance offers advice on how schools formulate policies to support children and young people with healthcare needs. Whilst stakeholders have welcomed the updating of the guidance document, it is not part of a legislative framework and many argue that the new guidance will not be adequate.

There are over 15 health and children organisations (including the Royal College of Paediatrics and Child Health and Diabetes UK) working together to collate evidence of issues faced by families and to influence legislative change in Wales. There is a strong feeling amongst these stakeholders and their supporters that there is a need for a change in the legislation in Wales to introduce a statutory duty of care for children and young people with healthcare needs. The group believes that updating the guidance does not address or resolve common issues regularly experienced by families in Wales and that increasingly variable results for this most vulnerable group of children will continue.

The current guidance frameworks for the management of children’s healthcare needs in a school setting differ in Wales and England. In England, the Children and Families Act 2014 came into force on 1 September 2014. Section 100 contains a statutory duty to support pupils with medical conditions, meaning that in practice schools must make additional arrangements for supporting children and young people at schools with healthcare needs. This legislation does not apply to schools in Wales.

Schools in England are required by law to have a medical conditions policy in place, as well as an Individual Health Plan (IHP) for each child with medical needs. The policy should recognise that some health conditions can be life threatening and that they can also affect how a child learns. Schools must regularly review and audit their policy and IHPs to make sure the arrangements for children with healthcare needs are working. Together, the documents detail how the school will care for any children with medical conditions, the procedures for getting the right care and training in place and who is responsible for making sure the policy is carried out.

There are concerns in Wales that many schools do not have a healthcare/ medical conditions policy, with many children with healthcare needs being excluded from the school day and in some cases for up to several weeks at a time. Stakeholders want to see all children and young people with healthcare needs in Wales – in terms of both physical and mental health, properly supported in school so that they can play a full and active role in school life. It is also important that parents feel their children are safe.

There has been some debate about whether the Welsh Government’s Additional Learning Needs and Education Tribunal (Wales) Bill should be extended to include the healthcare needs of children and young people in school, or other educational setting. However, the definition currently used for Special Educational Needs (SEN), which the Bill retains for the replacement term Additional Learning Needs (ALN), does not explicitly include learners with healthcare needs. 4% of children in Wales have a medical need, whilst 22% of children have additional learning needs.

Additional Learning Needs (ALN) Bill

The Minister for Lifelong Learning and Welsh Language, Alun Davies AM introduced the Additional Learning Needs and Education Tribunal (Wales) Bill, with its explanatory memorandum, to the National Assembly on 12 December 2016. In his plenary statement on the Bill on 13 December 2016, the Minister explained that the current legislative framework for supporting learners with additional learning needs is based on a model introduced more than 30 years ago.  The Minister explained that the Bill creates a single legislative system to support learners with additional learning needs aged between 0-25 years.

During the debate, the Minister was asked specifically about learners with healthcare needs. Darren Millar AM highlighted that some children and young people may not have additional learning needs, but they may have healthcare needs that require some interventions in the classroom or their place of learning to ensure that they can sustain their learning in the classroom.

In response to concerns highlighted by Assembly Members that “too often guidance is implemented in a patchy way, and sometimes ignored” (Plenary Record), the Minister set out his position on this:

We believe that local authorities and governing bodies already have responsibilities to support children and young people who do have healthcare needs. We are delivering and revising specific guidance on these matters, which will be published in the new year. If Members, having read through those guidelines, believe that they need to be improved or strengthened, then we’ll have an opportunity to do that in the new year.

He went on to say:

Let me say this: the Bill is silent on those issues, but our minds are open to conversations on those matters. If the guidance that will be published does not deliver the sort of certainty that people wish to see, then we will consider that at Stage 2.

It is clear that stakeholders, such as Diabetes UK and the RCPCH believe that children and young people, and their parents do not feel confident at the moment that schools have arrangements in place to provide effective support for the healthcare needs of these learners. They highlight that having asthma, epilepsy, diabetes and a range of other medical conditions should not prevent children and young people having full access to education. These organisations want to see children with potentially life-threatening medical conditions better protected at school and are calling for the same protection for this group as children with additional learning needs. The Welsh Government will publish revised guidance soon which it believes will strengthen the current arrangements and alleviate such concerns.