The
Committee consisted of the following
Members:
Ainger,
Nick
(Parliamentary Under-Secretary of State for
Wales)Brown,
Mr. Nicholas
(Newcastle upon Tyne, East and Wallsend)
(Lab)
Evans,
Mr. Nigel
(Ribble Valley)
(Con)
Gilroy,
Linda
(Plymouth, Sutton)
(Lab/Co-op)
Irranca-Davies,
Huw
(Ogmore)
(Lab)
Jones,
Mr. David
(Clwyd, West)
(Con)
Kaufman,
Sir Gerald
(Manchester, Gorton)
(Lab)
Pelling,
Mr. Andrew
(Croydon, Central)
(Con)
Penrose,
John
(Weston-super-Mare)
(Con)
Raynsford,
Mr. Nick
(Greenwich and Woolwich)
(Lab)
Ruane,
Chris
(Vale of Clwyd)
(Lab)
Ruddock,
Joan
(Lewisham, Deptford)
(Lab)
Southworth,
Helen
(Warrington, South)
(Lab)
Trickett,
Jon
(Hemsworth)
(Lab)
Watkinson,
Angela
(Upminster)
(Con)
Williams,
Hywel
(Caernarfon)
(PC)
Williams,
Mark
(Ceredigion)
(LD)
James
Davies, Committee
Clerk
attended the Committee
Ninth
Delegated Legislation
Committee
Wednesday 6
December
2006
[Mr.
John Cummings in the
Chair]
Draft National Assembly for Wales (Transfer of Functions) (No.2) Order 2006
2.30
pm
Mr.
David Jones (Clwyd, West) (Con): On a point of order,
Mr. CummingsI am sorry to intervene so early in
proceedingsthe 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.
2.31
pm
The
Parliamentary Under-Secretary of State for Wales (Nick
Ainger): I beg to
move,
That the
Committee has considered the draft National Assembly for Wales
(Transfer of Functions) (No.2) Order
2006.
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 oras it will be after Maythe 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 administrationthe work is not just putting the form
together and getting it right, it is doing the analysis toothe
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 devicesvery
importantand overflow pipes. Contravention by a water
undertakers 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
Assemblys 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 Assemblys 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
lengthI will not repeat the numbersonly 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,
DEFRAs 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.
2.46
pm