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Session 1999-2000
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Delegated Legislation Committee Debates

Draft National Assembly for Wales (Transfer of Fuctions) (Variation) Order 2000

Seventh Standing Committee on Delegated Legislation

Monday 10 July 2000

[Mr. Roger Gale in the Chair]

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

4.30 pm

The Parliamentary Under-Secretary of State for Wales (Mr. David Hanson): I beg to move

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

The Chairman: With this it will be convenient to consider the draft National Assembly for Wales (Transfer of Functions) (No. 2) Order 2000.

Mr. Hanson: It is a pleasure to serve under your chairmanship again, Mr. Gale, having recently spent 19 or 20 sittings considering the Care Standards Bill. I hope that our consideration of this pair of orders will be considerably shorter.

It will help if I explain briefly what both orders seek to achieve. The National Assembly for Wales (Transfer of Functions) (Variation) Order 2000, which I will refer to as the variation order, will help to secure the well being and safety of children in schools in Wales by allowing the Secretary of State for Education and Employment to exercise, concurrently with the National Assembly, the powers under section 218(6) of the Education Reform Act 1988 to bar or restrict employment in the education sector.

Historically, the power to bar or restrict a person's employment in the education service in England and Wales was exercised exclusively by a unit of the Department for Education and Employment. The power in respect of Wales was transferred to the National Assembly under the Transfer of Functions Order 1999, but the need for the continued involvement of the Department for Education and Employment was recognised because of its expertise in the area, and the fact that it will take some time for the National Assembly to build up its own unit with similar expertise.

For a number of weeks, my office, the National Assembly and the Department for Education and Employment have been in discussion about how we can identify the best way to proceed. The variation order provides the solution that will allow the Department for Education and Employment's dedicated unit to tackle the outstanding Welsh cases, and to bar or restrict certain people from employment in Wales as well as in England.

It will ensure that the Department for Education and Employment's dedicated unit has the powers necessary to ensure that cases are dealt with promptly and adequately throughout England and Wales, without taking away the ability of the National Assembly to take on this role in future if it becomes feasible. As is required under section 22(4)(b) of the Government of Wales Act, the National Assembly for Wales debated and approved this order in a plenary session on 28 June.

The National Assembly for Wales (Transfer of Function) (No. 2) Order 2000, which I shall refer to as the transfer (No. 2) order, includes the Assembly as an emanation of the Crown entitled to receive notice if a court regards a provision of secondary legislation as incompatible with a right under the Human Rights Act 1998, and is considering making a declaration to that effect. The Human Rights Act generally comes into effect on 2 October this year and it is proposed that the transfer (No. 2) order will also come into effect on that day.

Section 5 of that Act, states:

    Where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice

That is so that the Crown, which usually has ultimate responsibility for the legislation being considered by the court, can take part in the proceedings. That is particularly important as a declaration of incompatibility will be likely to lead to pressure for amended legislation that is compatible with UN convention rights to be brought forward as soon as possible.

Section 5(2) of Human Rights Act lists those emanations of the Crown entitled to receive notice. They are currently UK Ministers and the devolved Administrations in Scotland and Northern Ireland. The National Assembly was not included in the list from the outset because it does not have primary legislation powers. However, as the Assembly can make subordinate secondary legislation, which may also be considered by a court to be incompatible with the Human Rights Act, it was thought necessary to bring the National Assembly within section 5(2) of the Act. The No. 2 order achieves that in relation to a court considering a declaration of incompatibility on subordinate legislation made in relation to Wales by the Assembly or by a UK Minister.

Both orders are non-controversial and were approved unanimously by the National Assembly without cross-party division. Indeed, they were approved in another place on Friday 7 July without great concerns being raised. I hope that Committee members will support both orders.

4.36 pm

Mrs. Eleanor Laing (Epping Forest): I thank the Minister for elucidating, at least to some extent, what the two orders are about. I begin by apologising on behalf of my hon. Friend the Member for Ribble Valley (Mr. Evans) who usually undertakes the duties that I have been given this afternoon. He is in Wales today, carrying out other duties. He is sorry that he cannot be here.

I have some concerns about the orders, what they mean, and the theory underlying them. My main concern is that, in both cases, it appears that the Government are creating unnecessary duplication. The orders are similar, so I am happy to refer to them together. I can see the point of the No. 2 order in relation to the National Assembly in cases where subordinate legislation is being dealt with in a case under the Human Rights Act 1998. That makes sense and tightens up the provision, although it still creates duplication. The variation order in relation to the Education Reform Act 1998 certainly creates duplication. The Minister said a few minutes ago that the expertise required to carry out the necessary duties—for which I have the utmost respect—is already present in the Department for Education and Employment. What is the point of setting up another body to do a job that is already being done?

Mr. Hanson: Perhaps I can help the hon. Lady. The power with respect to the functions of the order was transferred to the National Assembly. The Assembly currently has the power, but not necessarily the expertise, to deal with some of the issues. The order therefore allows the Department for Education and Employment to work in conjunction with the National Assembly in Wales. Currently, that power resides with the National Assembly.

Mrs. Laing: I thank the Minister for that explanation, which is logical. Nevertheless, duplication is involved, and the Minister is not arguing otherwise. Effectively, two bodies are doing the same job. How does that benefit anyone in Wales? How much does it cost the taxpayer? How does it improve matters in any way? I see that it is logical, but it is undoubtedly costly—setting up bodies, acquiring and transferring expertise and providing an office all cost taxpayer's money that could be spent in other areas of education in Wales.

What consultation has there been on the orders? Has there been consultation about the change in the exercise of power under the Education Reform Act 1988? What protocol is there? Both orders use the word ``concurrently''. I see the logic of that, but the order that refers to the 1988 Act states that

    the functions...shall be exercisable by the Assembly concurrently with the Secretary of State.

What is the mechanism for consultation? What if there is disagreement between Ministers and the Assembly, as there might be? I broaden that to both orders. Too often, the Government assume that there will generally be agreement between Officers of the Assembly and Ministers of the Crown because that is the case at the moment, but I assure the Minister that it will not always be so. What is the protocol if there is disagreement? How can the functions be exercised ``concurrently'' if the two bodies do not agree about the methods to be used?

That brings me back to my previous question. If the functions are being exercised ``concurrently'', what benefit can there be to the people of Wales or the rest of the United Kingdom? At present, the functions are being carried out to a reasonable degree in the exercise of the protection of democracy and for the good of school children and the education process in Wales. What is the justification therefore for setting up new bodies and spending more taxpayers' money, other than political dogma?

4.42 pm

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy): I have two points. With regard to the variation order, will the Minister tell me what the remit of the Welsh Office was on the matter before devolution and the initiation of the National Assembly? Are the education Departments now taking over some powers that were previously vested in the Welsh Office?

The transfer (No. 2) order is curious, as it appears to bind the National Assembly. Potentially, the Assembly would be joined as a party to proceedings when there was a prima facie breach of the Human Rights Act 1998, even if the Assembly had not put in place the necessary subordinate legislation. When a Minister in this place makes an order and the National Assembly has not yet done so, the Assembly will nevertheless be joined as a party to proceedings. That is a strange way in which to deal with the matter.

4.43 pm

Mr. Hanson: I shall try to answer some of those points. I appreciated the comments made by the hon. Member for Epping Forest (Mrs. Laing) and her explanation of the absence of the hon. Member for Ribble Valley. I shall not make any critical comments on his lack of attendance, although I am tempted to do so. [Hon. Members: ``Go on.''] I shall not.

The hon. Lady mentioned duplication. In a way, my answer will also deal with the point made by the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd). Before devolution, the Welsh Office did not carry out the functions. The Department for Education and Employment carried them out on an England and Wales agency basis. Neither the Welsh Office nor the National Assembly has a specialist unit, and the Welsh Office relied on the Department to carry out the powers under section 218 of the 1988 Act before devolution. That is one reason for the order, because the power, which used to reside with the Department, transferred to Wales last year under the transfer of functions order. The National Assembly for Wales does not yet have the expertise or investment to enable it to take on those functions in a way that is appropriate to deal with them.

I remind hon. Members who are especially interested that the power allows authorities to examine whether people can be barred or suspended from employment in education. It covers investigations into child abuse, possible dangers to children, restricted employment and criminal convictions, among other matters, which in England and Wales are currently the responsibility of the Department for Education and Employment. In a sense, therefore, the power is being transferred, but the response and the resources to deal with such issues are not yet available in Wales.


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