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As I said on Second Reading, I do not oppose the idea of using framework legislation to transfer power from Parliament to the National Assembly; however,
clause 27 is a constitutional changea change, I hasten to add, that has moved ahead without the full rigour of parliamentary scrutiny and debate. Indeed, the crux of the matter is that we are being asked to give new powers over further education and training to the National Assembly, even though it has not yet completed its consultation about how it would use such powers and has no settled view about what it would do with the powers if it had them.
Also during Second Reading, I asked my hon. Friend the Minister for Lifelong Learning, Further and Higher Education for an assurance that Parliament would have an opportunity to consider that transfer of law-making power before we were asked on Report and Third Reading to pass the Bill. My hon. Friend replied:
My right hon. Friends the Members for Torfaen and for Islwyn raised important issues concerning the scrutiny of the legislation and the enabling powers of the Welsh Assembly. I should make it clear that in Committee every line of the Bill will be scrutinised. Any proposed measure by the National Assembly for Wales must be fully debated by the Assembly, and we will ensure that there is adequate and proper scrutiny of the proposals.[ Official Report, 21 May 2007; Vol. 460, c. 1074.]
In effect, there has been no consideration in detail by Parliament of the merits of transferring a primary law-making power to the National Assembly. I stress that I am not opposed to using framework legislation to transfer responsibility for such matters from Parliament to the National Assembly, but I am wholly opposed to doing it by such a backdoor method.
As I said on Second Reading, this is the third occasion on which the Government have used primary legislation to pass powers to the National Assembly without scrutiny of the issues. It happened with the Education and Inspections Act 2006 and with the NHS Redress Act 2006. The very fact that Parliament has not been able to consider the transfer of powers to the Assembly prompted the amendment.
Tucking the clause into the Bill meant that it was overlooked and was not subject to the rigorous debate and scrutiny that Parliament deserves. The Welsh Affairs Committee, chaired and led so ably by my hon. Friend the Member for Aberavon (Dr. Francis), shares the concerns of my right hon. Friend the Member for Torfaen and me. The Committee expressed exactly the same fear in its second report of 9 May. Paragraph 47, which refers to adding matters by primary legislation, states:
In a supplementary note on the use of framework powers, the Secretary of State stated that Parliament will be able to scrutinise framework powers in Bills by bringing forward amendments.
The reality may prove to be disappointing in this respect. Such clauses, which typically appear in the latter parts of Bill, tend to receive less attention than substantive policy clauses.
We are concerned that continuing use of primary legislation to extend the powers of the National Assembly...will mean that Matters introduced in this way will escape the detailed arrangements for pre-legislative scrutiny put in place.
We are concerned that to continue to add Matters by primary legislation could therefore be a device for a general, rather than a specific, extension of Assembly powers, which at the same time negates the opportunity for specific and detailed pre-legislative scrutiny, either by a Committee of the National Assembly or by the Welsh Affairs Committee.
I have always felt that when framework powers are included in any Bill, they should be closely examined under the spotlight of separate parliamentary scrutiny. I hope that when my hon. Friend the Minister replies he will respond to that point. That is the whole reason for the amendment.
I seek an assurance from the Government that this will be the last occasion when they slip a clause into a Bill to transfer primary powers from Parliament to the Assembly, without separate and proper scrutiny by Parliament of the merits of that proposed transfer. If that practice, which I abhor, is to continue, we run the risk that all such future primary legislation will be passed to Cardiff without the benefit of pre-legislative scrutiny by Parliament. The Government have a duty to ensure that Parliament is not bypassed in that way.
Mr. Boswell: I rise briefly to speak in support of the amendment moved by the right hon. Member for Islwyn (Mr. Touhig). He has spoken eloquently to it, and I seek the leave of the House for a moment or two to explain why I support it. I do so with some trepidation, or apprehension, because I should not like it to be thought either that I was expert in the constitution of Wales or that I was in any sense seeking to subvert the devolution settlement or to make difficulties for the Welsh Assembly GovernmentI speak not for that purpose. The nature of the Bills consideration has been broadly constructive and consensual, but it is necessary to put down a constitutional marker on the clause.
If I have interests in relation to the Principality, they are certainly in education. As I mentioned in Committee, I am about to become involved with the Higher Education Corporation in Wales, and one of the reasons for doing so is that many members of my wifes family, who emanate from the Principality, have been, as one would expect, teachers, one of whom had the great privilege of teaching the new Under-Secretary of State for Wales, whom I warmly welcome to his positionhe has certainly lost nothing of her loquacity judging by his performance this afternoon.
To come to the substance of the matter, we in this place should be very careful about enabling legislation, which has a very bad historymodestly in relation to the United Kingdom and certainly in respect of other legislatures. The purpose of Parliament is to scrutinise legislation and to ensure that it is properly considered, and it is not helpful to those for whom it is written and who are intended to benefit to let all this go on the nod, particularly when it relates to constitutional matters and, indeed, education matters. Two areas are particularly
sensitive: first, the general interests of the United Kingdom Parliament in relation to education. For example, there is a broadly common qualifications framework, and such issues cannot be discussed in Wales in complete isolation from those in England or the rest of the United Kingdom.
Secondly, there will be cross-border issues, which have been discussed in other contexts but have not been brought out in this discussion. It is quite wrong just to transfer the powers, without a proper discussion, to a body that, as the right hon. Gentleman said, has not yet even expressed its firm intentions about how to handle them. I have little doubt that when we do make the transferI am sure that we will, through acquiescencethe powers will be well and responsibly handled. That is not the issue. The issue is whether we should have taken a little longer to look at the powers in more detail before signing them off to somebody else, before proper process. That is a weakness in our constitutional arrangements and I strongly agree that we should not allow that process to be repeated.
Mr. Paul Murphy: I fully support the amendment of my right hon. Friend the Member for Islwyn (Mr. Touhig). When the Government of Wales Bill was being considered in the Chamberit involved major constitutional change to our country and to Walesthe question of the scrutiny of how we devolve primary powers to the Assembly in Cardiff was a matter of great debate. Behind that lay the desire for proper scrutiny of such legislation. Normally, it would be done by legislative Orders in Council. That would involve pre-legislative scrutiny by the Welsh Affairs Committee, which is chaired my hon. Friend the Member for Aberavon (Dr. Francis), together with a Committee in the Assembly. Letting these things go through in primary legislation avoids that proper scrutiny.
We have a new dispensation in Wales. We are told that we are in a new dawn of politics. That means that the spotlight on Welsh Members and on the business of Welsh legislation in this place is much stronger than it used to be. There is also the problem that if what we might call English Whitehall Departments are charged with legislation that involves scrutiny of the devolution of primary powers, they do not take too much notice of that because they see it simply as being something Welsh. Unhappily, that can also be the case among Members of the House. We have to beware of how we scrutinise our legislation.
When my hon. Friend the Minister winds up, will he assure me that the Wales Office will take particular care to ensure that when dealing with the National Assembly, and particularly with other Departments, there is proper scrutiny and that we avoid the mess that we have got into over devolving this issue? We had a debate earlier about the awarding of foundation degrees at further education colleges in Wales. That would have been resolved had there been a proper system in this place to deal with these matters.
Mr. Roger Williams (Brecon and Radnorshire) (LD):
The right hon. Member for Islwyn (Mr. Touhig) is right to emphasise that there will be more than one method by which primary legislative powers are passed to the Assembly. During the scrutiny of the Government of Wales Act 2006 I tried to emphasise that point, but it
did not receive sufficient consideration. As a matter of principle, all Members of Parliament should be given the fullest possible opportunity to scrutinise legislation that passes primary powers to the Assembly. This is a topical discussion because only this week the Prime Minister outlined 23 new Bills, many of which were on health, education and housing and will contain similar powers.
The suggestion is that the Welsh Affairs Committee should scrutinise this type of legislation as well. I would add a word of cautionalready two requests have been made for the Committee to consider legislative competence orders. If the Committee is to carry out that work, and the work of scrutinising the Wales Office and other issues of importance to Wales, it will have a very full programme. An ad-hoc Committee should be set up, along the lines of the Statutory Instrument Committee that I believe sat on Wednesday to consider part of the Government of Wales Act. That would be the best way forward, rather than overburdening the Welsh Affairs Committee, which does valuable work under the chairmanship of the hon. Member for Aberavon (Dr. Francis).
Hywel Williams (Caernarfon) (PC): I will be brief, Mr. Deputy Speaker. Plaid Cymru Members support clause 27. It is a substantial change, but leaving it out would be a substantial change, too. Of course, there will be new arrangements that might allow us to avoid some of the problems to which hon. Members have alluded. Education is rightly a devolved matter, and the new freedoms given to the Assembly under the clause are proper, reasonable and coherent. Proper scrutiny will be given to any Assembly measures by the Assembly itself.
Huw Irranca-Davies: I shall quickly respond to some of the comments made, so as to allow my right hon. Friend the Member for Islwyn (Mr. Touhig) time to make his observations. Clause 27 was scrutinised in the Commons in Committee. In policy terms, the measures in the clause were drawn up to enable the Welsh Assembly Government to develop and present to the National Assembly for Wales coherent and detailed policy proposals, built on identified needs and established Welsh policy objectives. If I had time, I would have liked to have elaborated on the subject and to have read into the record a range of points that have not yet been made, including on matters 5.13, 5.14, 5.15, 5.11, 5.12, and 5.16. I assure the House that in future my aim will be to ensure that there is adequate information to enable meaningful scrutiny to take place earlier in the public Bill process.
Clause 27 ensures that the National Assembly for Wales has the powers that it needs, when it needs them, to debate and determine the appropriateness of proposals put forward by the Welsh Assembly Government for the development of further education in Wales. That will enable the Welsh Assembly Government to propose Assembly measures that are appropriate to Welsh
circumstances. In a wider context, that delivers on the Governments commitment to ensuring that the Assembly has the tools to deliver change in the areas for which it has responsibility, and to rebalance legislative authority, without affecting the overall constitutional supremacy of Parliament as regards Wales in the United Kingdom. Parliament has a pivotal role when it comes to scrutiny. It must work in partnership with the Welsh Assembly Government and work in the best interests of the people of Wales. The clause is therefore important, and I hope that the House will support it.
However, I acknowledge the constructive and valid contributions made by Members, including my right hon. Friends the Members for Islwyn, and for Torfaen (Mr. Murphy), and I recognise their genuine concerns. It should be acknowledged that the collaboration between the Welsh Assembly and the Wales Office on how we take forward the devolved settlement is an evolving and learning process, so I am more than happy to meet with hon. Members to gain their views, so that we can further improve the process and ensure that the valuable contribution of hon. Members and the pivotal role played by the House is taken into account. On that basis, I urge my right hon. Friend the Member for Islwyn to withdraw the amendment.
Mr. Touhig: I listened to my hon. Friends points, and it is important that we find a mechanism for better scrutiny of such issues. We should not in any way seek to prevent powers being passed over, if that is the view of Government and Parliament. I take on board the point made by the hon. Member for Brecon and Radnorshire (Mr. Williams) about the pressures of work on the Welsh Affairs Committee, but in view of the Ministers offer to hold a meetingwith, I am sure, colleagues of all partiesin which we can explore ways of scrutinising legislation, I beg to ask leave to withdraw the amendment.
This is a small, relatively uncontroversial Bill. We have had a robust debate that has been consensual, on the whole, and I appreciate the constructive contributions made. I hope that Members on both sides of the House will agree that the Government have listened carefully, and have responded, where possible, to make the Bill better.
One subject that has benefited from being debated is foundation degrees. When we look back at the legislation with the benefit of hindsight, we will be certain that enabling colleges to apply for powers to award their own foundation degrees was the right thing to do and was truly groundbreaking. The foundation degree has established itself as an important part of the higher education qualifications landscape; it is valued by learners and employers alike, and it helps us to go forward and face up to the skills challenges that the country faces. I have made it clear that the new powers that the Privy Council can grant under clause 19 will be
appropriate only to certain providers, but the provision nevertheless speaks volumes about the status of further education, which is finally getting the recognition that it deserves.
For an uncontroversial Bill, the legislation has certainly had its moments. The importance of robust policy, underpinned by legislation, to eradicate poor performance and performance that is not improving, is widely accepted. There has been progress in further education, but where there are lingering, serious problems, it is right that we retain the power, through the Learning and Skills Council, to intervene in extreme cases. The Bill will also help more colleges to gain greater freedoms, but within the structure of a robust intervention strategy that is clear and unequivocal.
The Bill is small, but it is important. Machinery of government changes mean that we will need to consider the detailed funding arrangements for young people, adults and employers to learn, engage and progress, but the Bill remains crucial to our wider goals of further education reform.
The tremendous amount of good will, confidence and support for the further education system that has been expressed in all parts of the House during the debate is testimony to our FE system, which is benefiting from the unprecedented increase in funding over the past decade. That is bearing fruit, with achievement rates up by 20 per cent., more than 1.7 million adults helped with their basic skills, more than a million more adults qualified to level 2, and a tripling of the number of people engaged in apprenticeships. I pay tribute to all those who have made that investment count.
We must continue to enhance the capacity of the FE system through measures that include the foundation degree-awarding powers for colleges, improving the leadership in further education through a new power to regulate the qualifications of principals, and better consultation with employers and learners. Modernising the law on industrial training levies is a key consideration for the construction and electrical engineering sectors, and the devolution to Wales of education and training matters will underpin the review of FE in Wales.
In conclusion, further education is a vital public service, which has more power, perhaps, to transform lives than any other part of the education system. In a small but significant way the Bill has helped to give FE the status and recognition that it deserves. I am pleased to commend the Bill for its Third Reading in the House.
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