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Session 1999-2000
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Delegated Legislation Committee Debates

Draft National Assembly for Wales (Transfer of Functions) Order 2000

Fifth Standing Committee on Delegated Legislation

Monday 31 January 2000

[Mr. Bowen Wells in the Chair]

Draft National Assembly for Wales (Transfer of Functions) Order 2000

4.30 pm

The Secretary of State for Wales (Mr. Paul Murphy): I beg to move,

    That the Committee has considered the draft National Assembly for Wales (Transfer of Functions) Order 2000.

Almost a year ago, the House considered the first order transferring functions to the Welsh Assembly. That was a major part of the Welsh devolution settlement, which discharged our policy that the Assembly should have the functions that were previously exercised by the holder of my office. The order covered about a third of the entire statute book, and compiling it involved painstaking effort by almost every Whitehall Department over an 18 month period.

The order that we are considering today is not nearly as significant. Its purpose is to correct a number of omissions and deficiencies in the first order, which we considered last year. It does not depart from the principle that the Assembly should assume the functions of the Secretary of State for Wales; indeed, it fulfils that principle.

It is regrettable that the first order has been found to contain mistakes. However, given its unprecedented size and scope, it was not unexpected. Moreover, identifying functions of the Secretary of State for Wales is never easy. Acts generally state only, ``The Secretary of State may do x'', or ``The Minister shall do y'', leaving the decision as to which Minister is involved to administrative discretion. In many cases, we had to make difficult judgments as to whether functions should transfer. In a few of those cases, frankly, we got it wrong.

The order's provisions fall into two broad categories. For the most part, they transfer to the Assembly functions that were inadvertently left out of the first order. The remaining provisions transfer functions that should not have gone to the Assembly back to the United Kingdom Government.

I should stress that the errors in the first order have not caused any significant disruption to public services or the business of government here or in Cardiff. Where necessary, I or my colleagues have entered into agency agreements with the Assembly to discharge functions that were inadvertently transferred or to allow the Assembly to discharge functions that were inadvertently not transferred. The order formalises that position.

Many of the functions that are covered by the order are minor and little used, and I do not propose to deal with them all now. However, I shall cover some of the main points, and if members of the Committee have any queries I will respond to them when I wind up the debate.

The order transfers to the Assembly many more functions than it transfers back to Ministers. Many of those are contained in regulations implementing the common agricultural policy. Although those are, in most cases, of lesser importance than the measures in the first order, they still need to be transferred to the Assembly to give it full control over CAP matters in Wales. For some time, the Assembly has been discharging many of those functions on my behalf under an agency agreement that I concluded with the Assembly's Agriculture Secretary, Christine Gwyther, last summer. For example, Welsh farmers have received payments under the beef special premium scheme from the Assembly's Agriculture Department, just as they did from the old Welsh Office. All that we need to do is to put those and similar arrangements on a formal footing.

The order also removes the requirement for the Assembly to act jointly with the Ministry of Agriculture, Fisheries and Food in approving trials of genetically modified crops. That is a purely technical change, because MAFF has never taken an active role in decisions in Wales. I should stress that that does not change the legal position regarding the Assembly's powers to ban trials of GM crops altogether.

The Tax Credits Act 1999 was passed after the first order was made, and therefore could not be included in it. The Assembly's only function relates to approving child care providers, in respect of which families can claim a tax credit. As only the Assembly has the expertise to assess Welsh child care providers, the order transfers the function to it. The other functions in the Act deal with the taxation and benefit systems, and are properly matters for my ministerial colleagues.

The order also transfers certain functions from the Assembly back to Ministers. They were never the responsibility of the Secretary of State for Wales and thus should not be dealt with by the Assembly, I shall give a few examples.

The first transfer order properly gave the Assembly many functions under the various Mental Health Acts. However, in so doing it inadvertently transferred the powers in the Mental Health Act 1983, enabling my right hon. Friend the Home Secretary to authorise the detention of criminals and remand prisoners in secure hospitals. The Assembly has no expertise in that area and, since the transfer, the Home Office has exercised those functions on its behalf under an agency agreement.

Miss Anne McIntosh (Vale of York): Perhaps the Minister will help me, as a newly appointed member of the Committee. Is it normal with statutory instruments for such diverse and multi-faceted policies to be considered in one order?

Mr. Murphy: I suspect that that is a matter for you, Mr. Wells, not for me.

The Chairman: There is nothing unusual in that. This is a secondary statutory instrument, a previous one having been implemented. It is entirely in order.

Mr. Murphy: For as long as I have been involved with such matters in the House, it has been general practice to deal with them as we are doing today.

The first transfer order also gave the Assembly functions under the Water Industries Act 1991 relating to two named companies: Dwr Cymru and Dee Valley Water, which serve parts of Herefordshire and Cheshire as well as Wales. The Assembly's jurisdiction extends to those areas. Similarly, my right hon. Friend the Secretary of State for the Environment, Transport and the Regions retains oversight of Severn Trent Water, including those parts of Wales that it serves. That is the only practical way of dividing responsibility. Water does not respect national boundaries, so water companies do not

However, there is a possible loophole. If a new water undertaker were appointed to serve, for example, the city of Hereford, the Assembly would be responsible for it, although it would serve no one in Wales. Likewise, the Secretary of State would be responsible for a new water undertaker serving only Montgomeryshire. That cannot be right and the order rectifies the position by giving the Assembly responsibility for any water company serving an area wholly or mainly in Wales.

I hope that my examples have illustrated the sort of technical changes that the order will make. I shall endeavour to deal with any queries when I wind up.

The order should not be contentious. It does no more than fulfil the principle that the Assembly should have the functions of the Secretary of State for Wales. It is in no one's interest, here or in Cardiff, to have defective legislation on the statute book. The Assembly has unanimously agreed to the draft order and I urge the Committee to do the same.

Mrs. Eleanor Laing (Epping Forest): I apologise for the absence of my hon. Friend the Member for Ribble Valley (Mr. Evans), who usually deals with matters such as this. He has been unavoidably detained and I am sure that he will be heartbroken to have missed the Minister's explanation of the statutory instrument before us.

I was interested in the Minister's comments. My hon. Friends and I will not oppose the order, because it is clearly necessary. As many of us said during the long passage of the Government's devolution legislation, including the Act to which the statutory instrument refers, there were anomalies, mistakes, misunderstandings and duplications and all sorts of matters were unclear and wrong. Conservative Members knew that statutory instruments would have to be introduced because of the way in which the Government rushed through their devolution legislation. Labour Members seem to disagree with me, but the Minister has just said that we are examining this secondary legislation to put right mistakes that were made in previous secondary and primary legislation. I would not stoop so low as to use the phrase, ``We told you so''. That would not be parliamentary language. However, I might be tempted to do so, because it is clear to Opposition Members—who were anxious that an Assembly in Wales should be properly considered before being set up, and that the people of Wales should know what they were voting for when they decided to have that Assembly—that the Government had not decided on many aspects of the government of Wales. That is why we have to consider this legislation at this late stage, now that the Assembly is up and running.

Having stated that as a matter of principle, I appreciate the intricate detail of the order and the way in which the Minister has presented it. I have no specific objection to it.

4.39 pm

Mr. Andrew Robathan (Blaby): The Minister said that water does not respect national boundaries. However, fresh water in Great Britain did so until the Government of Wales Act 1998 introduced the National Assembly for Wales and devolution, against the wishes of the majority of the people of Wales, as far as one can work out. To back up what my hon. Friend the Member for Epping Forest (Mrs. Laing) has just said, it is a pity that the National Assembly and the question of devolution could not have been better thought out.

The Secretary of State mentioned Dee Valley Water and Severn Trent. I remember walking round the Elan valley, which is in Wales. However, the water from there goes to England. That has been a bone of contention for many Welsh people for a long time, although I would be happy to share it between the Welsh and the English.

The Secretary of State said that some of the powers of the Mental Health Act 1983 had been inadvertently transferred. That sums up exactly what my hon. Friend the Member for Epping Forest said. The legislation that introduced the transfer of powers—not wanted by the people of Wales anyway—was certainly not sufficiently thought through. People may come to rue it yet.

The Secretary of State was dealing with the functions and responsibilities of the CAP between the two Executives. Would the transfers of powers of which he spoke have affected the response of the United Kingdom to the BSE crisis? Would they have been entirely separate in Wales and in England?

4.41 pm

 
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