The Parliamentary Under-Secretary of State for Wales (Nick Ainger): I beg to move,

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discussions with officials advising the Joint Committee on Statutory Instruments, the original draft order was withdrawn to correct an inconsistency in the commencement date; it was subsequently relaid on 26 March.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 2007—for example, in relation to the Food Standards Act 1999—to 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 Assembly’s 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.

Mr. David Jones (Clwyd, West) (Con): I echo the Minister’s 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 party’s 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 Minister’s 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 Minister’s 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

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 Government—if it is intended to create one—would 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?