The
Committee consisted of the following
Members:
Chairman:
Mr. Eric
Martlew
Ainger,
Nick
(Parliamentary Under-Secretary of State for
Wales)
Bone,
Mr. Peter
(Wellingborough)
(Con)
Bryant,
Chris
(Rhondda)
(Lab)
Burrowes,
Mr. David
(Enfield, Southgate)
(Con)
Dorries,
Mrs. Nadine
(Mid-Bedfordshire)
(Con)
Griffiths,
Nigel
(Edinburgh, South)
(Lab)
Irranca-Davies,
Huw
(Ogmore)
(Lab)
Jones,
Mr. David
(Clwyd, West)
(Con)
Llwyd,
Mr. Elfyn
(Meirionnydd Nant Conwy)
(PC)
Lucas,
Ian
(Wrexham)
(Lab)
Meacher,
Mr. Michael
(Oldham, West and Royton)
(Lab)
Morden,
Jessica
(Newport, East)
(Lab)
Ruane,
Chris
(Vale of Clwyd)
(Lab)
Tami,
Mark
(Alyn and Deeside)
(Lab)
Truswell,
Mr. Paul
(Pudsey)
(Lab)
Watkinson,
Angela
(Upminster)
(Con)
Williams,
Mark
(Ceredigion)
(LD)
SÃ(r)an
Jones, Committee
Clerk
attended the Committee
First
Delegated Legislation
Committee
Tuesday 17
April
2007
[Mr.
Eric Martlew in the
Chair]
Draft Government of Wales Act 2006 (Consequential Modifications and Transitional Provisions) Order 2007
10.30
am
The
Parliamentary Under-Secretary of State for Wales (Nick
Ainger): I beg to move,
That the Committee has
considered the draft Government of Wales Act 2006 (Consequential
Modifications and Transitional Provisions) Order
2007.
The
Chairman: With this it will be convenient to consider the
draft Representation of the People (National Assembly for Wales)
(Access to Election Documents) Regulations
2007.
Nick
Ainger: May I begin by welcoming you to the Chair,
Mr. Martlew? This is the first time that I have served under
your chairmanship and I hope that neither you nor the Committee will be
detained too long dealing with these two statutory
instruments.
The
draft Representation of the People (National Assembly for Wales)
(Access to Election Documents) Regulations 2007 were laid on 7 March,
and the Government of Wales Act 2006 (Consequential Modifications and
Transitional Provisions) Order 2007 on 9 March. Following discussions
with officials advising the Joint Committee on
Statutory Instruments, the original draft order was withdrawn to
correct an inconsistency in the commencement date; it was subsequently
relaid on 26 March. The Government are grateful to the Joint Committee
lawyer for his
assistance.
I shall
deal first with the Government of Wales Act 2006 (Consequential
Modifications and Transitional Provisions) Order 2007. This is one of
the pieces of subordinate legislation that need to be made under the
Government of Wales Act 2006 to implement fully the new devolution
settlement in Wales. The title of the order is descriptive. The
consequential modifications made through schedule 1 to the order are
amendments to other enactments that are considered appropriate in
consequence of the provisions in the 2006
Act.
Members will be
aware that, at present, under the Government of Wales Act 1998, the
National Assembly for Wales is a corporate body and there is no legal
separation between the Assembly as a legislature and the Assembly
Government as Executive. The Government of Wales Act 2006 will change
that so that there is legal separation between the Assembly
andthe Welsh Assembly Government. In addition, the Assembly
will have new legislative powers to make Assembly Measures and the
Executive functions that are currently vested in the Assembly as a
whole will be vested instead in the Welsh Ministers.
Those Executive functions are
transferred at thetime of separation mainly to the Welsh
Ministersby paragraph 30 of schedule 11 to the 2006 Act.
Paragraph 32 of that schedule makes provision for references to the
existing Assembly in other enactments to be construed as references to
the Welsh Ministers or, indeed, to the First Minister, Counsel General,
Assembly commission, or Assembly if the particular function was
transferred to one of them at the time of separation.
The consequential modifications
made by the order are, in some cases, simple and straightforward: for
example, replacing references to the National Assembly for Wales with
references to the Welsh Ministers to reflect that a particular function
has been transferred to the Welsh Ministers by paragraph 30 of schedule
11 to the 2006 Act. However, some of the consequential modifications
are required because of structural changes under the new devolution
settlement, in particular the legal separation of the legislature from
the Executive. An example of that is the modification to the Local
Government Act 1988 made by paragraphs 25 to 30 of schedule 1 to the
order. Without that modification, the functions of the existing
Assembly in relation to making local government finance reports would
merely transfer to the Welsh Ministers. However, as a result of the
modifications in the order, the function of making such reports will be
a function of the Welsh Ministers, but there will also be a role for
the Assembly in scrutinising and approving these reports.
In other cases, a consequential
modification is required because the mechanisms in paragraphs
30to 32 of schedule 11 to the 2006 Act cannot operate to
achieve the textual amendments that are necessary to take account of
the new devolution arrangements under the Act. For example, section 21A
of the Sex Discrimination Act 1975, as amended by the Equality Act
2006, makes it unlawful for a public authority to carry out a
discriminatory act in exercising its functions. However, also under the
Sex Discrimination Act, that prohibition does not apply to certain
listed functions. The listed functions currently include preparing,
making and considering Bills and Acts of this Parliament and of the
Scottish Parliament. The order adds Measures, proposed Measures, Bills
and Acts of the National Assembly for Wales to that list. The
preparing, considering and making of subordinate legislation by the
existing National Assembly for Wales already appears on the list.
However, the order changes the reference to the National Assembly to a
reference to the Welsh Ministers, the First Minister for
Walesor the Counsel General to the Welsh Assembly Government.
That is because it is they, rather than the Assembly, who will have the
functions of making subordinate legislation under the new devolution
arrangements.
A
further example is the modification made to section 150(4)(c) of the
Finance Act 2004, which is set out in paragraph 108 of schedule 1 to
the order. That modification adds references to the Assembly commission
and the Welsh Ministers to section 150(4)(c). From a policy point of
view, it is right that the Assembly commission and the Welsh Ministers
be considered as relevant governmental or parliamentary bodies for the
purposes of approved public service
pension schemes within the meaning of part 4
ofthe Finance Act 2004. However, their inclusion in section
150(4)(c) cannot be implied by paragraph 32 of schedule 11 to the
Government of Wales Act 2006, so the modification is required to add
them.
Hon. Members may
have noted, as explained in paragraph 4.6 of the parliamentary
explanatory memorandum, that there is a relationship between the order
and another: the National Assembly for Wales (Diversion of Functions)
Order 2007. That is an Order in Council which the Assembly considered
in plenary on 21 March and which was made by Her Majesty in Council on
4 April. The diversion of functions order transfers to the new Assembly
certain functions that would otherwise be transferred to the Welsh
Ministers under paragraph 30 of schedule 11 to the Government of Wales
Act 2006. The provisions in the diversion of functions order will need
to be read with the consequential amendments made by
the draft Government of Wales Act 2006 (Consequential Modifications and
Transitional Provisions) Order 2007for example, in relation to
the Food Standards Act 1999to see the full picture of how the
legislation concerned will operate in the light of the new devolution
settlement in
Wales.
In addition to
making consequential modifications, schedule 2 to the draft order
contains transitional provisions. In particular, paragraphs 4 and 5 of
schedule 2 apply Assembly legislative procedures to subordinate
legislation made by the Welsh Ministers where otherwise no procedure
would apply. It is worth explaining at this point that, at present, no
legislative procedure applies under the Government of Wales Act 1998 to
subordinate legislation made by the Assembly as a corporate body. That
is because the subordinate legislation is made by the democratically
elected Assembly, and the Assemblys Standing Orders provide for
the procedures to be followed when it makes such
legislation.
In
future, a legislative procedure will need to apply to the making of
subordinate legislation, because it will be made by Welsh Ministers.
Where Welsh Ministers acquire new powers to make subordinate
legislation under the Acts or Measures passed following separation, the
parent Act or Measure will provide for the legislative procedure to be
followed. However,for the functions that already exist and
that are transferring to the Welsh Ministers as a result of the
Government of Wales Act 2006, the procedure needs to be provided for.
In most cases, that is already provided for in paragraphs 33 to 35 of
schedule 11 to the 2006 Act. The transitional provisions in the order
pick up those functions of making subordinate legislation that have not
already been picked up in the 2006
Act.
If it pleases the
Committee, I will now move on to the draft Representation of the People
(National Assembly for Wales) (Access to Election Documents)
Regulations 2007. From this year, Assembly election documents will be
stored by the local electoral officer rather than being sent to the
Assembly, as in the past. That will be more convenient for those who
have a valid interest in inspecting them. However, because they contain
personal information, it is important that access is limited only to
cases that can be justifiedon the grounds of democratic
accountability and openness.
Last December, the
Under-Secretary of State for Constitutional Affairs, my hon. Friend the
Member for
Lewisham, East (Bridget Prentice), took through
regulations that inserted a new part 7 into the Representation of the
People (England and Wales) Regulations 2001, which set out rules for
the inspection, supply and sale of the marked electoral register,
marked postal voters list and other election documents that are open to
public inspection after a parliamentary election. As a matter of
principle, we intend similar rules to apply to Assembly election
documents.
The draft
regulations simply apply those rules,with appropriate
modifications, to Assembly election documents. The main purpose is to
allow registered parties and candidates to request marked copies of the
electoral register, postal voters list and the lists of proxies and
proxy postal voters used at elections in which they have taken part.
Those and other election documents will also be open to public
inspection. The provision will not extend to ballot papers or completed
corresponding number lists, which could be used to establish how an
individual has voted, or to certificates of employment of police
officers or election staff. Inspection will be subject to strict
conditions: requests must be made in writing, specifying the documents
to be inspected and the reasons for doing so. Inspection can be made
only under supervision and there are further safeguards relating to the
use that can be made of the information obtained.
I believe that presenting the
regulations in thisway is the best means of applying similar
rules to parliamentary and Assembly elections in a clear and open
manner.
Mr.
Peter Bone (Wellingborough) (Con): Will the Minister give
way?
Nick
Ainger: I was about to sit down; perhaps the hon.
Gentleman would like to make a contribution later in the debate. I urge
the Committee to approve the order and the
regulations.
10.42
am
Mr.
David Jones (Clwyd, West) (Con): I echo the
Ministers welcome to you, Mr. Martlew.
I will deal first with the
longer of the two statutory instruments, the draft Government of Wales
Act 2006 (Consequential Modifications and Transitional Provisions)
Order 2007. I thank the Minister for his introduction. I would like in
the first instance to express my partys appreciation for the
work of the officials who have carried out the important task of
producing such a large and comprehensive order; it must have required
an enormous amount of work. I was initially worried that the draft
order falls to be considered by this Committee so long after the
Government of Wales Act 2006 received Royal Assent in July 2006 and so
shortly before the Welsh Assembly elections, which, as we all know, are
due to be held on3 May, but any thought of voicing such
criticism dissipated when I read the order and understood the extent of
the exercise of referencing and cross-referencing that it must have
entailed.
Most of the
modifications contained in schedule 1 to the order, although complex,
become self-evident upon close examination. Taken as a whole, however,
they illustrate the extent to which, as a result of
the passage
of the 2006 Act, power will be transferred from the former elected and
corporately constituted Welsh Assembly to the rather smaller group of
Welsh Ministers. Indeed, Mr. Martlew, it is difficult to
resist observing that Executive power will, as a result of the Act, be
concentrated in the hands of a small group of elected Welsh Ministers
not much larger than the small group of elected Welsh Ministers in whom
such power was concentrated in the days before devolution. To that
extent, the wheel appears to have turned almost, but not quite, full
circle.
My
observations on schedule 1 are relatively brief and are such because of
the extremely comprehensive and helpful explanatory note appended to
the draft order. I should, however, appreciate the Ministers
help with one or two matters. The first relates to paragraph 15, which
amends section 76ZA(9) of the Race Relations Act 1976 so that the
prohibitions against discrimination contained in that section do not
apply to the appointment of a member of the Welsh Assembly Government.
That is understandable in the case of the First Minister, a Welsh
Minister or a deputy Welsh Minister, all of whom are elected office
holders. However, under the 2006 Act, the Counsel General to the
Assembly is also a member of the Welsh Assembly Government. The Counsel
General need not be an elected Member; indeed, he or she will probably
be the only non-elected member of that Government. Given that the
appointment of the Counsel General may be regarded, to that extent, as
an act of employment, why should such appointments be exempted from the
prohibitions against discrimination contained in the Race Relations
Act?
I have a similar
observation in respect ofparagraph 49 of schedule 1. This
relates to the Disability Discrimination Act 1995, and seeks to amend
section 4C of that Act by providing that the prohibitions against
discrimination contained in it do not apply to the appointment of a
member of the Welsh Assembly Government. Again, why should such
provisions not apply to the appointment of a Counsel General where the
Counsel General is not an elected Member of the
Assembly?
I also seek
the Ministers assistance in connection with paragraph 82 of
schedule 1, which relates to the Freedom of Information Act 2000. It
provides that, where section 36 of that Act applies to information held
by the Welsh Assembly Government, that information may be exempted from
disclosure if, in the reasonable opinion of the qualified person, as
defined by that Act, its disclosure would, or would be likely to,
prejudice
the work of
the Cabinet of the Welsh Assembly Government.
I am intrigued by the use of
the word Cabinet. It is touched upon briefly in the
explanatory memorandum, but the expression does not appear to be
defined either in the Government of Wales Act 2006 or in the order
itself. Will the Minister please explain why an undefined expression is
used in paragraph 82, and why it was thought appropriate to use
Cabinet rather than Welsh Ministers in
this context, particularly having regard to the fact that the Cabinet
of the Welsh Assembly Governmentif it is intended to create
onewould entirely comprise Welsh Ministers?
Schedule 2
to the order is considerably briefer than schedule 1, but gives rise to
more interesting questions. The provisions contained in this schedule
could have been contained in the 2006 Act. Paragraph 4.6 of the
explanatory memorandum makes it clear that there is a relationship
between the order that is being considered today and what has been
referred to as the diversion of functions order, which, according to
the explanatory memorandum, was due to be considered
by the Assembly on 21 March and submitted to the April meeting of the
Privy Council for approval by Her Majesty. Will the Minister indicate
whether such a recommendation was made by the Assembly and whether the
order has yet been approved by the Privy
Council?