Mr. David Jones (Clwyd, West) (Con): On a point of order, Mr. Cummings—I am sorry to intervene so early in proceedings—the order, although short, is also complex and accompanied by a detailed and legalistic explanatory memorandum. In several paragraphs, it refers to other documents, including correspondence between Westminster and Assembly Ministers, and memorandums of understanding. In some cases they have been prĂ(c)cised in what can only be described as a rather perfunctory manner. Is it your view that those documents should be available to the Committee when considering the order?

The Chairman: The Chairman has no view about the content of the explanatory notes. They are not of my making, but the hon. Gentleman might wish to pursue the matter in due course.

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

I welcome you to the Chair, Mr. Cummings. It is the first time that I have served under your chairmanship and, hopefully, we will not delay the Committee for too long today.

I can inform hon. and right hon. Members that the order covers three matters. The first enables the National Assembly for Wales to make regulations for the content and conduct of the census in Wales. The second concerns section 156 of the Environmental Protection Act 1990 and transfers the power to make regulations on land waste. The third amends the basis on which the National Assembly makes regulations prescribing conditions in relation to water fittings under the Water Industry Act 1991.

The Wales Office has obtained formal agreement on all the matters contained within the order with the Treasury, the Department for Environment, Food and Rural Affairs and, of course, the National Assembly for Wales. The first matter concerning the 2011 census would give the Assembly the right in law to be consulted on the draft census order and the power to make regulations for the content and conduct of the census in Wales. Where there is a sufficiently strong case to do so, different information could be collected on census forms in Wales.

Information arising from each census is used by central and local government to form policy, plan services for specific groups of people, and to distribute resources effectively. Only a census can provide information on a uniform basis about Wales as a whole, and about smaller areas and sub-groups of the population in relation to one another.

Right hon. and hon. Members will recall that following the late introduction of a Scottish tick box in the 2001 census, there were calls for a Welsh tick box on the census form in Wales. My hon. Friend the then Economic Secretary and the Registrar General for England and Wales subsequently agreed that the Assembly should have a more formal role in agreeing census forms in Wales. Officials of the Welsh Assembly Government, the Office for National Statistics and the Wales Office, including legal advisers, have identified an option that gives the Assembly a greater role within the constraints of current legislation.

Under section 1 of the Census Act 1920, the function of making a census order is exercisable by Her Majesty in Council. Such functions do not fall within section 22 of the Government of Wales Act 1998 and cannot be transferred to the Assembly. However, a Minister of the Crown can recommend that such an order be made, and under section 22(1 )(c) of the Government of Wales Act it is possible to direct that the function can only be exercised after the Minister has consulted and/or obtained the consent of the Assembly.

The function of making census regulations, under section 3 of the Census Act, falls within section 22 of the 1998 Act. Therefore, in so far as that function is exercisable in relation to Wales, it can be transferred to the Assembly. That will give the Assembly greater influence in the decisions of the Office for National Statistics and the final say on the way in which the census is conducted in Wales. Where there is a sufficiently strong case for doing so, different information will be able to be collected on census forms in Wales.

The second matter—

Mr. Nigel Evans (Ribble Valley) (Con): Has there been representation from the Welsh Assembly? I know that the Minister has mentioned the Welsh tick box, but has the Assembly pressed hard for any other information, perhaps because it feels that it should have the ability to ask a question about something specific and, under current rules and regulations, it is not permitted to do so?

Nick Ainger: This transfer of functions order would allow the Assembly to do that. There might be other issues, but I am not privy to them and would not dream of telling the Assembly what it should include in any census. However, the purpose of the transfer of function order is to allow it to do that. There are already questions relating to the language that may be included in any future census form. Basically, it is a matter for the Assembly, which would clearly like to see the power transferred so that it can make whatever changes it would like.

Mr. Evans: Does the final decision about what questions will be put on the census rest with Westminster or with the Welsh Assembly?

Nick Ainger: Obviously, discussions will take place with the Assembly or—as it will be after May—the Assembly Government, because after May next year, thanks to the implementation of the Government of Wales Act 2006, the powers will be transferred to Assembly Ministers rather than to the Assembly.

Perhaps I am pre-empting a further question, but if the Assembly Government want a significant piece of information that will add significant costs to the overall administration—the work is not just putting the form together and getting it right, it is doing the analysis too—the Assembly Government will be required to cover those costs.

The second matter transfers to the Assembly section 156 as it applies to part 2 of the Environmental Protection Act 1990. That will enable the Assembly to make regulations in relation to Wales that give effect to Community and other international obligations regarding waste on land.

The devolution settlement gives the Assembly extensive responsibilities for environmental matters, including waste management. The Assembly has powers to give effect to European Community law obligations with respect to waste management under section 2(2) of the European Communities Act 1972. The penalties that can be imposed by regulations made under the European Communities Act 1972 are smaller than those imposable by regulations made under section 156 of the Environmental Protection Act 1990.

Thus the main advantage of section 156 powers is that they are not subject to the limitations that are attached to the use of section 2(2) of the European Communities Act 1972, particularly in relation to the maximum penalties that may be imposed. Those penalties are, for example, under the Environmental Protection Act 1990 on conviction on indictment: imprisonment for a term not exceeding five years or a fine not exceeding £50,000 or both, but under the European Communities Act 1972 imprisonment for a term not exceeding two years, rather than five, or a fine not exceeding £5,000 or £100 a day if calculated on a daily basis, rather than the maximum of £50,000 available under the 1990 Act.

The Hazardous Waste (England and Wales) Regulations 2005 were made by my right hon. Friend the Secretary of State for Environment, Food and Rural Affairs partly in reliance on section 156. Consequently, the regulations, which amend provisions relating to penalties in the Environmental Protection Act 1990, were able to provide for penalties beyond the maximum, which would not have been permitted had the regulations been made under section 2(2) of the European Communities Act alone.

Because of the need to rely on section 156 for certain provisions in the Hazardous Waste (England and Wales) Regulations 2005, the regulations had to be made to cover England and Wales for the section 156-related issues and England alone for the section 2(2)-related issues, while the Assembly made regulations covering Wales alone for the section 2(2)-related issues. It is both untidy and confusing for all interested parties. Even when the Assembly and my right hon. Friend make regulations together, those regulations must reflect the different powers held by each party.

The situation can be avoided by transferring the measures in section 156 as they apply to part 2 ofthe Environmental Protection Act 1990. Following the transfer, when both DEFRA and the Assembly Government review policy or regulations made partly in Wales and partly in England, the Assembly will be able to implement any amendment fully in Wales without relying on DEFRA.

The third matter amends the basis on which the Assembly may make regulations under sections 47, 53, 55 and 66A of the Water Industry Act 1991 for the purpose, among others, of preventing the contamination or waste of the public water supply. Regulations made under those sections may prescribe requirements concerning water fittings including supply pipes, mixing valves, backflow prevention devices—very important—and overflow pipes. Contravention by a water undertaker’s customer releases a water undertaker from its duty to supply water to that customer. The requirements that can be prescribed by the regulations are confined to those in regulations made separately under section 74 of the Water Industry Act 1991.

An anomaly exists in how the functions under section 74 and sections 47(2)(g), 53(2)(c), 55(4) and 66A(6) have been transferred to the Assembly. The power to make regulations under section 74 has transferred in relation to water undertakers whose areas are wholly or mainly in Wales. However, the powers under the sections that I just mentioned have transferred in relation to Wales itself.

Water undertakers are the principal suppliers of public water and are appointed under section 6 of the Water Industry Act 1991. They include, for example, Dwr Cymru or Welsh Water and Dee Valley Water. Those two Welsh undertakers’ areas of supply do not align with the geographical boundary of Wales. Because of that and the continuing policy intention that the supply of water in Wales should be regulated by the Assembly, water supply functions are generally transferred to the Assembly based on the water undertakers’ areas.

Because the functions under sections 47(2)(g), 53(2)(c), 55(4) and 66A(6) of the Act are exercisable by reference to regulations made under section 74, and in order to give effect to the continuing policy intention regarding the Assembly’s devolved competence concerning water supply, all provisions’ basis of transfer should be aligned. The proposed transfer of functions is intended to correct the disparate way that the interrelated functions have been transferred to the Assembly so that the Assembly’s ability to regulate the water industry in Wales will more accurately reflect the devolution settlement as it relates to the supply of water by water undertakers.

Mr. Evans: Does that mean that the powers being transferred to the Welsh Assembly Government by the order will simply relate to any water function as long as it is within Wales? Will people living on the border, for instance, not be affected by the order?

Nick Ainger: The purpose of the order is to address the anomaly that although the sections to which I have referred to at length—I will not repeat the numbers—only apply to Wales, water is regulated on the geographic area of the water undertakers. The areas of both the Dee Valley water company and Dwr Cymru Welsh Water, which mainly operate in Wales as the hon. Gentleman knows, also include part of England. The regulations will apply to water undertakers not just in Wales, but to them in the whole of the area in which they operate. By the same token, DEFRA’s remit will extend to parts of Wales, because the Severn Trent Water Authority covers parts of Wales. We are ensuring that the regulations are in place effectively to regulate the water undertakers where they operate. I hope that that explanation satisfies the hon. Gentleman.

I urge the Committee to approve the draft order.