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Mrs. Gillan: I beg to move amendment No. 166, in page 51, line 9, leave out
'to add a new field or'.
The Chairman of Ways and Means:
With this it will be convenient to discuss amendment No. 167, in page 51, line 11, leave out subsection (2).
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Mrs. Gillan: These amendments are really probing amendments in respect of amendment of schedule 5, scrutiny of which has just been completed. In truth, I have tabled them to explore the extent of the legislative competency envisaged for the Assembly Measures and to invite the Minister fully to explain the scope for extending the Assembly's powers, using the fields outlined in schedule 5.
As I understand it, the legislative competence orders as described by the Minister in his explanatory letter of 17 January would add a matter to schedule 5. However, the schedule, which contains 20 fields, is an imprecise document. The Government chose to go into detail in field 13, on the National Assembly for Wales. For example, it contains matter 13.1, on the creation and conferral of functions, matter 13.2, which deals with similar provisions, and matters 13.3 to 13.6. However, the other fields have been left completely blank, as the Minister knows. That is tantalising, is it not? The moment one leaves such fields blank, the curiosity of the average politician is understandably aroused.
The examples that the Minister so obligingly sent us, to show how this provision would function, included that of the public services ombudsman and one relating to transport. He said that the Assembly would not have been able to pass measures relating to such matters before enactment of this legislation. That sets aside the fact that we already have primary legislation on these two examples, but that should not cloud the issue. I believe that the Minister chose them—I hope that he can confirm this—because they happened to be before the House. So in a sense this is a red herring—these are simply the examples that he has used. He did say that they are based on cases where the Assembly could not have legislated within its existing powers.
It would appear that there will be no check or balance if the Bill goes through. Field 10, for example, covers all highways and transport matters, and field 14 is headed "public administration", and those would, presumably, cover the other field for the example that the Minister gave. Those two fields would be prayed in aid for the two measures.
I gather from the Library that the addition of those two areas over and above the devolved subjects in schedule 2 to the Government of Wales Act 1998 and the subsequent amendments made by S.I. 1999/672, S.I 2000/253, S.I. 2000/1289, S.I. 2000/1830, S.I. 2001/3679 and S.I. 2004/3004 enhances the competencies of the Assembly above what was previous envisaged. Some of that is laid out in devolution guidance note 11, but I think I am correct in saying that that has not been fully updated.
Some obvious changes derive from some of those statutory instruments. We have mentioned fire and rescue services, and there is the addition of rural development. Other areas are transport—field 10—public administration, and field 15, which is on social welfare. That, I think, is supposed to be equivalent to what used to be called social services. "Social welfare" draws the category much wider. I would be grateful if the Minister gave us the history of the variations and outlined the reasons for the extensions and variations to the powers of the Assembly. I appreciate that some will be introduced functions.
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Mr. Hollobone : I should like to underline the point that my hon. Friend is making. Is there not a worrying inconsistency in part 1 of schedule 5, where there is one line of text for most services, but some 40 lines for the Assembly powers? Does not that give the Executive of the Westminster Parliament huge flexibility, and therefore inordinate power, to determine at a later date, beyond the scrutiny of this Parliament, what powers are given to the Assembly?
Mrs. Gillan: My hon. Friend makes his point in his own way, and I shall make it in my way a bit later on. It is arguable that the way in which the Bill has been drawn is so wide that it could be wider than schedule 7, which limits and provides the exceptions. It is an extremely valid point.
Transfers of functions orders have already been brought in in respect of various matters, such as court cases involving subordinate legislation, local land charges, inheritance tax and a right to be party to proceedings on compatibility with the Human Rights Act 1988. Will the Minister outline under which fields those matters, for example, could be covered? That is extremely important. I need to feel that the Minister has fully explained to the House how widely the fields are drawn. Let me give an example. Under "economic development", it could be argued that it might be possible for the Assembly to promote the development of nuclear power in Wales, and thus support a new nuclear power station at Wylfa B. As we heard as we debated the last set of amendments, there is great concern about that in Wales. Perhaps there is a way to claim field 4 as the encompassing field for discussing, promoting or moving those matters forward. It would be of interest to know whether that could or could not be.
Under "social welfare", could the Assembly add the provision of social security benefits or employment programmes aimed at all unemployed people? Could it add child support or pension regulation, all of which currently remain wholly the responsibility of the UK Government? Are the headings a pointer to the direction that the Government wish to take, in which case could the Minister enlighten us further? Or do the Government seek to maintain the status quo in these fields, in which case, could they be filled in? If they are not filled in—as schedule 7 has been completed in detail to cover the situation in which full legislative powers are devolved—it could be argued that schedule 5 could be interpreted to cover a wider remit than schedule 7. The Minister should clarify that very generally drawn schedule, because otherwise it might not find favour in this Committee or in the other place.
9.15 pm
Mr. David Jones:
Does my hon. Friend share my puzzlement that the Minister has repeatedly said this evening that it is the Government's intention not to broaden but to deepen the devolution settlement, but it would be possible for the Government to add any number of fields to those already contained in schedule 5, subject of course to the limitations in schedule 7? My concern is that it may be possible at some later stage for a large number of additional fields that are not currently the subject of the devolution settlement to be added.
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Mrs. Gillan: It is for the Minister to answer that point and set our minds at rest, or to come clean about the Government's intentions. When we see a provision drawn so widely, it sets the alarm bells ringing on what the Father of the House called creeping devolution. It could become a reality.
This is a difficult area, but as I understand it the devolved subjects that were listed in schedule 2 to the Government of Wales Act 1998 are not repeated exactly in this Bill. They have been supplemented and slightly changed. I would like to hear from the Minister his views on the breadth of those fields. If he is intent on deepening rather than widening, perhaps he will allay our fears that the Bill will widen the devolution settlement by including headings as broad as "social welfare".
Nick Ainger: If I begin by explaining how schedule 5 is set out, it may assist the hon. Lady to understand how the process works. The fields that are set out are those areas in which Executive functions have been given to the Assembly and, following the split that will be introduced by the enactment of this Bill, to Assembly Ministers. They are the fields of Executive competence.
The hon. Lady mentions field 13, which is purely about the National Assembly for Wales. In order for the Assembly to be able to carry out its functions, pay its staff and so on, we had to set out in the Bill the matters on which it may legislate if required at as early an opportunity as possible. For all the other fields listed with nothing underneath them, it will be for the process of Orders in Council to determine.
The hon. Lady mentioned the two examples that I placed in the Library—legislation on the public administration ombudsman and transport in Wales. If we had not gone for the primary route, that is how an Order in Council would have looked. The transport legislation would have fitted under the field. I do not know which one it is—
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