Draft National Assembly for Wales (Transfer of Functions) (No.2) Order 2006

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Mr. David Jones: It is a pleasure to serve under your chairmanship, Mr. Cummings. I am grateful to the Minister for his clear exposition of this short order, which relates to three disparate and important functions and is, therefore, of some considerable importance. As I mentioned earlier, the draft order has been accompanied by a lengthy explanatory memorandum that elucidates the order’s purpose—albeit in somewhat legalistic language.
The first function to be transferred to the Assembly by the order is the power that is currently vested in the Chancellor of the Exchequer to make census regulations, which would include, as the memorandum makes it clear, a prescription for the precise content of the census form. The proposed transfer appears to have been prompted, to a large extent, by the controversy over the absence of a tick-box in the 2001 census form to allow respondents to indicate that they were of Welsh nationality. That concern was understandable, particularly in the post-devolutionary environment.
It is right that respondents should be able to indicate that they are of Welsh nationality and any development that facilitates that will be welcomed by the Conservative party. Similarly, I hope that any future census form will make provision for people who feel that their national identity is best defined as British and Welsh—and there are many of those. It must not be forgotten that the primary, overriding purpose of the census is to collect accurate, valuable statistical information. That should continue to be so after that function is transferred.
A number of matters that arise from the order require clarification and are not fully explained in the memorandum. Perhaps the Minister will assist me on the following points. Paragraph 7.2 of the memorandum says that the order has been agreed between
“the Economic Secretary to the Treasury and the Registrar General for England and Wales”.
I touched on that in my point of order, but I should appreciate the Minister’s telling the Committee what were the terms of that agreement. Given that the Chancellor of the Exchequer currently deals with census returns, why did the Economic Secretary agree to the order?
Paragraph 7.5 says:
“The function ... of making a Census Order is exercisable by Her Majesty in Council”,
on the recommendation of a Minister of the Crown. Which Minister exercises that function? Article 4 of the draft order makes it clear that no recommendation can be made by the Minister
“unless the Assembly has been consulted about the making of that recommendation.”
Clearly, section 22 of the Government of Wales Act 1998 has not been invokedĀ so as to require the Assembly’s consent to the making of such a recommendation. Perhaps the Minister will confirm that. What form will the consultation take? How long is the consultation period expected to be? How will the result of the consultation be taken into account bythe Minister before making the recommendation for the making of an Order in Council?
The next matter was mentioned by my hon. Friend the Member for Ribble Valley. Given that the making of the census regulations will be the Assembly’s responsibility, to what extent is it envisaged that it will liaise with the Chancellor of the Exchequer to ensure that the Welsh census regulations complement those made for the rest of the UK, so as to provide census forms that give the statistical information that is required UK-wide? What protocols is it proposed will be put in place for that purpose between the Office for National Statistics and the relevant Department of the Assembly? Has the Wales Office been involved in the process of agreeing that element of the order? It is clear that it was involved in the other two elements, but not whether it was involved in that one.
What effect will the Statistics and Registration Service Bill have, when enacted, on the functions to be transferred to the Assembly pursuant to the order? Why has the Financial Secretary to the Treasury confirmed that he is content to transfer those functions to the Assembly when the explanatory memorandum makes it clear that it was the Economic Secretary to the Treasury who was engaged in the agreement with the Registrar General for England and Wales? It is clear that there will remain a single Registrar General for England and Wales, who will be responsible for the census in England and in Wales. What practical difficulties, if any, does the Minister envisage arising as a result of such an arrangement, and how will they be addressed?
Perhaps the Minister will consider paragraph 9.6 of the explanatory memorandum, which indicates that “additional administrative costs” will be generated as a result of the Assembly’s greater involvement in census planning, although it also indicates that those costs will be small. What estimate has been made of those additional costs? [Interruption.] Well, how small?
Paragraph 9.7 of the explanatory memorandum refers to an exchange of letters between the Assembly’s Minister for Finance and the Financial Secretary to the Treasury on the principles of a funding agreement. Again, that is explained in rather scant detail, so could the Minister please expand on the principles of the agreement?
I turn now to the proposed transfer of functions under section 156 of the Environmental Protection Act 1990. The order proposes to transfer the function of making regulations pursuant to part II of that Act, which relates to waste on land. The explanatory memorandum makes it clear that, under the powers currently devolved to it, the Assembly Government usually seek to keep the waste management regulatory framework the same in Wales as in England, for the sensible reason of avoiding inappropriate cross-border waste flows and the consequential adverse impact on business. Paragraph 7.10 of the explanatory memorandum explains that the principal advantage of section 156 powers is that
“they are not subject to the same limitations as attached to ... section 2(2)”
of the European Communities Act 1972, particularly in relation to the maximum penalties that may be imposed in the event of any breach. The Minister has already touched on that.
So far, as the Minister has indicated, regulations under part II of the Environmental Protection Act 1990 have been made by the Secretary of State for Environment, Food and Rural Affairs. Is it anticipated that, as a result of transferring the proposed functions to the Assembly, different regulations will be applicable in Wales and England, or will they remain the same? If they remain the same, what practical benefit will derive from making the order? Given that this is an environmental matter and frequently best addressed UK-wide, might there not be a persuasive argument for suggesting that it would continue to be desirable to have a single, overarching management structure for the regulations?
We have heard that the order relates only to part II of the Environmental Protection Act 1990. Are there any proposals to transfer functions to the Assembly in relation to parts of the 1990 Act that are not already transferred, such as part VI, which relates to genetically modified organisms? What consultations have taken place with stakeholders on the proposed transfer? Paragraph 8 of the explanatory memorandum suggests that the current position is untidy and confusing to stakeholders. What evidence does the Minister have that such confusion exists?
I now turn to the proposed transfer of functions under the Water Industry Act 1991. Paragraph 8.4 of the explanatory memorandum makes it clear that the anomaly to be corrected by the transfer relates to conditions that have arisen from the enactment of the Water Act 2003. Will the Minister explain why that anomaly was not noted previously?
The next matter was touched upon by my hon. Friend the Member for Ribble Valley. Paragraph 8.5 states that some functions are to be
“transferred to the Assembly on a water undertakers’ area basis”.
That relates to Dee Valley Water and Dwr Cymru. Given that the areas of both those authorities extend beyond the boundaries of Wales to large parts of Cheshire and Herefordshire, am I correct in understanding from what the Minister said that the proposed functions will affect consumers in England? If so, what democratic accountability will there be in relation to actions undertaken by the Assembly that affect those consumers? They do not return Members to the Welsh Assembly. Are they to be deprived of a democratic voice in the matter?
Similarly, will the Assembly have the right to make regulations that affect the parts of the Severn Trent Water area that are in Wales? I understand that that will not be the case, but perhaps the Minister can confirm that. In any event, consumers in those areas return Members to this Parliament.
Will the Minister explain why the Minister of State for Climate Change and the Environment, rather than the Secretary of State for Environment, Food and Rural Affairs, agreed to the transfer with the appropriate Assembly Minister and the Secretary of State for Wales? Will he also indicate the likely costs of the preparation of regulations consequent upon the present transfer of functions order?
I wish to touch upon one or two more general matters that arise from the order. The first was raised by my right hon. and noble Friend, the Lord Roberts of Conwy, when the order was considered in another place. Our time in Committee is limited to a mere one and a half hours, and I have already raised a large number of queries on the order, to which I am sure the Minister will respond in detail. No doubt, other members of the Committee will wish to make points. There is a risk when discussing such matters that most, if not all, of the 90 minutes allotted will be exhausted.
I hope that the Government will beware of attempting to push through Committees too many items of seemingly unconnected legislation that require substantial scrutiny. In this Session, the first applications will, no doubt, be made for Orders in Council on the transfer of other primary legislative functions to the National Assembly. We are still waiting to find out what the mechanics of the making of such orders will be, but I hope that they will not be subject to such abbreviated debate.
I echo the comments of my right hon. and noble Friend on the extraordinary brevity of the debate on the order in the Welsh Assembly. Section 22 of the 1998 Act makes it clear that no functions may be transferred without the approval of both Houses of Parliament and a resolution of the Assembly. Will the Minister explain why the order was put before the Assembly before being considered in Parliament? Frankly, that seems to be putting the cart before the horse. Each House, and the Assembly, is expected to carry out important scrutiny functions when such orders are considered. They should not be rubber-stamping operations, but that was what the Assembly debate, if such it can be called, appeared to be. Will the Minister convey my criticisms to the appropriate Assembly Minister?
I await the Minister’s replies to my detailed questions, but, subject to those replies, it is unlikely that we shall oppose the order.
2.59 pm
Mark Williams (Ceredigion) (LD): It is a great pleasure to serve under your chairmanship this afternoon, Mr. Cummings.
In view of the large number of questions that the hon. Member for Clwyd, West posed to the Minister, I shall be brief. I shall say from the outset that we welcome the order and the transfer of functions that it sets out. The hon. Gentleman mentioned the debate in the National Assembly, in which only two Members spoke—the Minister and one of my colleagues. Perhaps the turnout here reflects the fact that our willingness to devolve powers exceeds the National Assembly’s willingness to receive them.
There will be particular satisfaction that the census is being addressed after the 2001 experience of the denial of the Welsh tick box, despite there being Irish, Scots and English ones. It was amazing that there was no Welsh tick box in Wales—an omission that rightly caused a lot of offence, particularly when one official in the Office for National Statistics suggested that people in Wales should fill in the “Other” category and write “Welsh” next to it.
The capacity of the Assembly to be consulted on the census order and to make regulations on the census and how it is conducted is welcome. I hope that I do not detect any inconsistency in what the Minister was saying—perhaps he can reassure me. In the explanatory memorandum, paragraph 9.1 on retaining sections 1 and 3 of the Census Act 1920 reads:
“The proposed transfer of functions in relation to future Censuses of Population for Wales would give the Assembly the right in law to be consulted on the Census Order, and the power to make Regulations for the Census in Wales. It would give the Assembly greater influence in the decisions the Office of National Statistics ... takes and the final say”—
the final say—
“on the content of the Census form in Wales”.
I heard the Minister twice use the phrase “if there is a sufficiently strong case”. I am still slightly unclear on where the final decision will lie. I hope that it will be in the hands of the National Assembly and that that a “sufficiently strong case” referred to the Assembly’s more general capacity to influence other matters on the census.
I reiterate the point made by my noble friend Lord Livsey of Talgarth in another place about the inadequacy of data, particularly relating to the health needs of Wales. Good statistics from the ONS, particularly on the regional health needs of Wales, will go a long way to make the case for resource allocation, and the census has a role in that. Like others, I would be interested to know what estimate—we heard that the sum was small—has been made of the financial implications for the National Assembly.
Finally, the transfer of power under section 156 of the Environmental Protection Act 1990 is also welcome, as it gives the Assembly the power, rather than giving the Secretary of State the power on the Assembly’s behalf. That is a sensible tidying-up operation that is consistent with the Assembly’s extensive responsibilities for environmental matters, including waste management.
The Liberal Democrats welcome the order, but I want a little clarification on where the ultimate decision on the content will rest. That is the key point.
3.3 pm
Hywel Williams (Caernarfon) (PC): I, too, welcome you to the Chair, Mr. Cummings. I shall concentrate my brief remarks on the census. I reiterate the comments made by the hon. Member for Clwyd, West; we in Plaid Cymru, too, welcome the change with open arms.
The Minister’s reasonable and measured terms convey little of the anger—not anger, but outrage—felt among many people in Wales in 2001, which led to otherwise law-abiding people considering not filling in the census form. That is a hugely undesirable situation, as I am sure all hon. Members would agree.
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