Standing Committee F
Tuesday 30 January 2001
[Mr. Barry Jones in the Chair]
Review of exercise of functions of Assembly and other persons
Amendment moved [25 January]: No. 11, in page 2, line 23, after `Assembly,' insert
`, with the consent of the Secretary of State'. [Mr. Walter.]
The Chairman: With this we may discuss the following amendments: No. 12, in page 2, line 33, at end insert
`(2A) The Secretary of State may lay before Parliament an order to amend this section or Schedule 2A by
(a) adding any person to that Schedule;
(b) omitting any person from that Schedule;
(c) altering the description of any person mentioned in that Schedule; or
(d) making provision specifying, in respect of a person mentioned in that Schedule and specified in the order, a function of the person which although exercisable in relation to Wales is not to be treated as such for the purpose of subsection (1)(b).'.
No. 13, in page 2, line 34, after `(2)', insert `or (2A)'.
No. 16, in clause 4, page 4, line 35, after `Assembly', insert
`, with the consent of the Secretary of State'.
No. 30, in page 4, line 45, at end insert
`(5AA) The Secretary of State may lay before Parliament an order to amend this section or Schedule 2B by
(e) adding any person to that Schedule;
(f) omitting any person from that Schedule;
(g) altering the description of any person mentioned in that Schedule; or
(h) making provision specifying, in respect of a person mentioned in that Schedule and specified in the order, services which although provided by the person are not to be treated as such for the purposes of the exercise of the Commissioner's functions.'.
No. 31, in page 5, line 1, after `(5A)', insert `or (5AA)'.
Mr. Robert Walter (North Dorset): I shall not repeat the arguments that I advanced at our previous sitting on Thursday 25 January as they are recorded in Hansard. Opposition Members are anxious to stick to the Bill's timetable, so, God willing, we shall complete our proceedings today.
Mr. James Gray (North Wiltshire): My hon. Friend may have inadvertently made a small error. We are under no commitment to end our proceedings in Committee today, although we may well do so.
Mr. Walter: I was not making a commitment to finish our proceedings today, just saying that I hoped that we would be able to do so.
The amendments give powers to the Assembly and, more particularly, to the Secretary of State, to extend the Children's Commissioner's remit beyond those matters that are devolved to the National Assembly for Wales to non-devolved areas that may be described as cross-border issues. At our previous sitting, I referred to several issues, including some non-devolved issues that were specifically Welsh, such as S4C, whose privatisation the Conservative party is not favour of, which we compared with the Welsh Language Board, both of which may have areas that cross over with each other, yet the Children's Commissioner will have a remit over only one of those areas.
Mr. Richard Livsey (Brecon and Radnorshire): One matter causes me concern. Amendments Nos. 12 and 30 would authorise the Secretary of State laying before Parliament orders to amend schedules 2A and 2B by
adding any person to that Schedule . . . omitting any person from that Schedule . . . altering the description of any person mentioned in that Schedule.
The amendments would give the Secretary of State much power and could be seen as an attempt by the Conservative party to ensure that if, in future, the electorate returns a Government of a different colour, the Secretary of State for Wales would possess greater powers than the National Assembly with regard to the welfare of children. That is another example of the Conservative party attempting to restrict the powers of the Assembly.
Mr. Win Griffiths (Bridgend): I thank the hon. Gentleman for allowing me to ask a question on the issue. I hope that my hon. Friend the Minister will respond. Does the Secretary of State still have the power to make such orders? Under the Government of Wales Act 1998 and the devolution settlement, such powers would, by and large, have been passed to the National Assembly.
Mr. Livsey: I have similar suspicions about the issue. We must keep a clear focus on the fact that the Children's Commissioner for Wales is accountable almost exclusively to the National Assembly. We have previously debated widening the commissioner's remit to include non-devolved issues. When the hon. Member for North Dorset (Mr. Walter) sums up the debate, will he clarify some of the problems involved?
The commissioner has basic powers to monitor, review and report on all matters that may affect the human rights of children in Wales. That does not conflict with the devolution settlement. The commissioner could be given powers, similar to those of the Assembly under section 33 of the Government of Wales Act, to consider and make appropriate representation about matters affecting children in Wales. I am concerned that the amendments may water down the powers of the Assembly by transferring to the Secretary of State powers that could be adequately carried out by the Assembly.
Ms Julie Morgan (Cardiff, North): Like the hon. Member for Brecon and Radnorshire (Mr. Livsey), I am concerned that the amendments appear to extend the devolution settlement by putting non-devolved matters into a list, but giving powers to the Secretary of State over devolved matters. Have the official Opposition thought about the implications of such amendments? Some of them are very prescriptive. For example, if the amendments were made, the National Assembly for Wales would not be able to change the name of the Care Council for Wales without the permission of the Secretary of State. The amendments have difficult implications, which the Opposition do not seem to have not thought through completely.
Mr. Walter: Before we chase the issue, which was also raised by the hon. Member for Brecon and Radnorshire, this, to use the words of the current Government, is joined-up government. We are trying to extend the powers of the Children's Commissioner so that his remit extends to cross-border and non-devolved matters. Clearly, the commissioner could not derive those powers from the National Assembly, because it has no remit over such matters. The Secretary of State, however, does. To join everything up, the amendment would bring the Secretary of State into the decision-making process in adding and subtracting people from the schedule. It is simply a case of joined-up government.
Ms Morgan: I understand the points that the hon. Gentleman is making, but, as a consequence of the amendments, should the National Assembly for Wales wish to change the name of one of the bodies listed in the schedules, the Secretary of State would have to grant permission. That is not in the spirit of the devolution settlement.
The Parliamentary Under-Secretary of State for Wales (Mr. David Hanson): Hon. Members will not be surprised to hear that I side more with the hon. Member for Brecon and Radnorshire and my hon. Friends the Members for Bridgend (Mr. Griffiths) and for Cardiff, North (Ms Morgan) on the amendments than with the official Opposition, so it is back to normal.
I understand that the intended effect of the amendments is, as the hon. Member for North Dorset said, to widen the range of bodies that could be included in the commissioner's jurisdiction. That would be done through the framework that the hon. Gentleman mentioned of vesting order-making powers in the Secretary of State, rather than in the Assembly. The points made by my hon. Friends and the hon. Member for Brecon and Radnorshire are valid.
The Committee has debated at length the principle of the commissioner's jurisdiction, which falls within devolved spheres and, therefore, relates to bodies with functions in the Assembly's devolved areas of responsibility, so the order-making power proposed in the amendments to add bodies in future should be underpinned by such a principle. The amendments are not consistent with the principle of allowing the Assembly maximum discretion in secondary legislation.
Clauses 3 and 4 give the Assembly discretion to amend the list of bodies proposed in schedules 2A and 2B, but they do so in particular defined circumstances, which are essentially those that I have often mentioned in Committee. The Assembly must have a locus in the devolved or shared responsibility for those bodies. The Bill requires the Secretary of State's consent only if the relevant body is not 50 per cent. funded by the Assembly. That is an important principle, but under the Bill the Secretary of State cannot add bodies unilaterally. That chimes with the comments of my hon. Friends and the hon. Member for Brecon and Radnorshire.
That condition echoes the condition specified in the Government of Wales Act under which the Assembly may add bodies to the Welsh Administration ombudsman's remit. The most obvious examples of such bodies will be those whose functions span both devolved and non-devolved fields of responsibility. The Secretary of State may give his consent if the funding condition is not fulfilled, but the body would still have to have functions in devolved areas of responsibility.
I accept the spirit of the amendments, which would require the Secretary of State's consent in all circumstances. As my hon. Friends said, the amendments would also allow the Secretary of State to make orders amending the schedules. Given that the Bill relates solely to Wales and bodies with functions in devolved spheres of responsibility, I accept that it would be an unacceptable interference in the Assembly's responsibility to give an order-making power to the Secretary of State over aspects that are rightly the Assembly's responsibility.
If the Assembly's spheres of responsibility are to be extended in future, the range of bodies that the Assembly could add to the commissioner's jurisdiction, with or without the Secretary of State, would be extended accordingly, reflecting the wider range of bodies coming within the devolved field. Any extension of the Assembly's functions is a matter for primary legislation, considered by the House; further transfer of functions orders; further legislation; or motions and procedures that are subject to affirmative resolution and therefore open to consideration by hon. Members.
It is important to give the Assembly flexibility to examine its spheres of responsibility and not to allow the Assembly unilaterally to stray into non-devolved spheres or allow the Secretary of State unilaterally, without reference to the House, to add functions to the Assembly. Given the comments of the hon. Member for Brecon and Radnorshire and my hon. Friends, those arguments