Clause
22
Conditions
relating to levy
proposals
Mr.
Hayes:
I beg to move amendment No. 31, in clause 22, page
15, line 4, at end insert ‘and
(c)
the class must include organisations representative of persons who are
liable to make payments by way of levy in consequence of the levy
proposals.’.
You
will know, Mr. Atkinson, that the levy system affects a
small number of organisations that contribute to training in two
particular sectors. We have debated
the matter at length. It is a relatively technical affair and, from my
discussions with Ministers, I understand that this part of the Bill is
also technical and not intended to act as a catalyst for a change in
that
process.
It
is perhaps worth saying for the record that, as Ministers
know—we have discussed this publicly and privately—I
support the way in which the levy system currently operates. There is a
slight risk that by changing the way in which the representative
organisations and employers work in this field, we might weaken take-up
of the levy. Some employers—very small employers, new employers
and employers who are going through changes of circumstance—are
exempt from paying the levy. However, I am anxious that we should
maintain the commitment to the levy from within the relevant industries
and am therefore somewhat concerned—I put it no more strongly
than that, for this is a probing amendment, as hon. Members may have
guessed from what I have said—to ensure that we do not endanger
that level of commitment by any albeit small changes that we might
make.
I know that we
broadly agree on this matter, but I am interested to hear the
Minister’s reflections on it. I shall pose two or three
questions that he may want to address, and then I shall draw my remarks
to a conclusion. First, I understand that there has been a decline in
levy take-up over time, which we have discussed in Statutory Instrument
Committees and elsewhere. I want to hear the Minister’s view on
that and what we might do about
it.
Secondly, what
role do the sector skills councils play in all this? They seem to be a
helpful tool in that respect. I do not think that they have a statutory
role, but it would certainly be desirable for their involvement in the
process to assist in the collection of and commitment to the levy that
I have
described.
Thirdly, it
would perhaps be useful for the Committee to have some kind of profile
of who pays the levy. In the construction industry, which is one of the
industries involved, a broad range of types of business is liable to
pay the levy. I would be interested to hear whether the smaller
companies are depending on the very large companies, which, of course,
pay the levy, and what the balance of payments
is.
Those are all
fairly narrow points, but I know that the Minister will appreciate that
the questions have been posed in the interest of trying to get the
provision right. I look forward to his response as to precisely why the
changes proposed in this part of the Bill are, in his view,
necessary.
The
Parliamentary Under-Secretary of State for Education and Skills (Phil
Hope):
I think that I can give the hon. Gentleman the
assurances that he seeks. The clause updates the legislation dealing
with how an industrial training board shows that it has the support of
employers to raise a levy. The changes made by the clause will give an
ITB the freedom to consult employers in its industry more widely. That
might include consulting any organisation authorised to speak on behalf
of its members who are likely to pay the levy, seeking the views of a
sample of employers or approaching employers directly in combination
with any of those methods. We want industrial training
boards to choose the consultation process that bests suits their
industry. In all cases, they will need to satisfy the Secretary of
State that the process that they followed was reasonable.
I appreciate that this is a
probing amendment, but it would mean that organisations that represent
sections of an industry must be consulted when ascertaining the level
of support for levy proposals. That would constrain an ITB’s
freedom of action in doing what I have just described—deciding
the method by which to demonstrate support. That would not be helpful
to the ITB, because it would constrain its responsiveness and
flexibility in demonstrating that support. However, the hon. Gentleman
made an important point in moving the amendment, which is the question
whether it would undermine the commitment of employers to the levy if
we were to go down that
route.
I assure the
hon. Gentleman that both the existing industry training
boards—the Construction Industry Training Board and the
Engineering Construction Industry Training Board—have always
placed, and will continue to place, great strength on their
relationships with industry federations that represent the various
subsections of their industries. Those will include representatives
from those federations, and it is clear from what the ITBs have told us
that they have no desire to reduce the input of federations in any
way.
We need to be
more flexible, because it is 25 years since the Industrial Training Act
1982, and over that period industry structures have changed. An
increasing proportion of employers have chosen not to join the employer
federations, which means that although the ITBs have evidence that
employers who are not federation members support the levy—they
know that, because they have asked people—the legislation does
not allow that evidence of support outside the federation to be taken
into account when an ITB is justifying its levy.
In future,
provided that the ITB can satisfy the Secretary of State that it has
taken reasonable steps to ascertain the views of those persons whom the
Secretary of State considers are likely to be liable to pay the levy in
consequence of the proposals, the ITB can go on to demonstrate that it
has industry support for its levy proposals in the manner best suited
to the industry. That will, of course, include consulting
representative organisations. We are keen to ensure that in situations
where no such representative body might exist for future
ITBs—proposals are coming forward from industry on
that—they would not be prevented from demonstrating that they
have the support of the industry, even though they have no federation.
This is a mechanism allowing those industries to do
so.
Mr.
Hayes:
The Under-Secretary is being reassuring about the
purposes of this part of the Bill. In essence, it is a means of
increasing flexibility, and by so doing, maintaining commitment. What
kind of mechanisms might ITBs use to consult employers, if they are not
using representative organisations as a conduit? When the 1982 Act was
enacted, part of the reason for using representative organisations was
that they provided a convenient vehicle for the type of consultation
that we are
describing.
Phil
Hope:
We have published draft indicative regulations about
how an organisation might go about
that. For example, it could take a sample of employers—not inside
the federation but within the industry and subject to the
levy—and do a sampling process of those employers. The
regulations would give the hon. Gentleman the reassurances that he
requires: there is a formal process that organisations have to go
through in order to carry out surveys and sampling outside those bodies
that are inside the federation of the ITB. That will be laid out in
regulations, which I believe have already been circulated for members
of the Committee to look at, so that he can be assured that those
regulations are there. Essentially, the ITB will be able to demonstrate
to the Secretary of State that there is industrial support, both from
members of the federation and from those outside of it, through the
sampling method. Those regulations include provisions about consulting
representative organisations. With those assurances, I hope that the
hon. Gentleman will withdraw his amendment.
I was tempted to take this
opportunity to observe that levies can be used to fund apprenticeships,
which would have given me a chance to comment on what the hon.
Gentleman said earlier about apprenticeships. However, I guess that you
would not allow me to stray so far from the clause, Mr.
Atkinson.
I would not
want to intimidate the hon. Gentleman by getting my violins out again
and demonstrating that his accusations, which undermine the current
apprenticeship system, are wholly unfounded and wrong. Rather, I invite
him to celebrate success—both the expansion in the number of
apprenticeships and the completion rates around the country. I shall be
at the apprenticeship awards next week to give prizes to the employers
and apprentices who are doing so much to raise skill
levels.
Mr.
Hayes:
I said at the outset of this Committee that your
generosity and benevolence are legendary, Mr. Atkinson. The
Minister has sought to prove me right by managing at the very end of
his sensible comments on levies to launch into a series of remarks
about apprenticeships, but I shall not follow him, because that would
be wrong. I do not want to be seduced down an inappropriate path by the
Minister. He has spoken sensibly about levies, on which we have similar
views. This is not the time to explore the issue, but there might be
capacity, as the film industry shows, for further voluntary levy
systems, if an industry thinks that that is the right way to focus
attention on the need for training and development. Both Opposition and
Government would celebrate such a voluntary, industry-led approach to
increasing commitment to training.
Phil
Hope:
The hon. Gentleman mentioned the film industry.
Earlier, he referred to the role of sector skills councils in that
regard. The ITBs are separate from SSCs. Perhaps, however, future
legislation will introduce systems that will allow SSCs to develop more
generally. Those might be considered favourably by both sides of the
House, and I look forward to working with him when the time
comes.
Mr.
Hayes:
It is interesting that when the House is at its
best in Committees such as this, an exchange of views can lead to the
development of shared ideas. The Minister has drawn attention to an
example—in this
case, the role of the SSCs—that could be used as a model in other
industries, although I accept that the particular character of the film
industry makes that approach more straightforward than it might be in
other cases. I would welcome the opportunity to share further views on
it.
We have received
assurances about the amendment and about this part of the Bill. I
understand the need to move on from 1982, given the changing nature of
the relationship between employers and representative organisations. I
am a little anxious about the effect that that might have on the
representative organisations, because there is the slight risk of a
self-fulfilling prophecy of the decline in their influence. However, I
accept that one has to be practical, and on the basis of the
Minister’s very sensible comments, I beg to ask leave to
withdraw the
amendment.
Amendment,
by leave, withdrawn.
Clauses 22 to 24 ordered to
stand part of the Bill.
Clause
25
Powers
of National Assembly for
Wales
Question
proposed, That the clause stand part of the
Bill.
Mr.
Hayes:
Rather unexpectedly, this part of the Bill has been
thrown into sharp focus. Not for the first time in this Committee, I
have an admission to make. On Second Reading, I did not expect that as
much emphasis would be placed on this clause in speeches from
Government Back Benchers as was the case. I was slightly surprised. I
would not mind betting that some on the Front Bench were slightly
surprised as well about both the length and the nature of some of those
speeches. However, that did, of course, alert me to certain serious
matters that I must raise today in relation to the
clause.
1.30
pm
I am pleased to
see that the Under-Secretary of State for Wales is here specifically in
respect of clause 25. I felt a little sorry for him when we debated the
earlier clauses as he sat expectantly waiting for us to hare towards
clause 25, only to be treated to considerable debate on earlier
clauses. However, I am pleased that he is here now, and I have no doubt
that he will want to speak about this matter at some length.
For the benefit of the
Committee, let me make it clear that the clause makes amendments to
part 1 of schedule 5 to the Government of Wales Act 2006, so as to
confer enhanced legislative competence on the National Assembly for
Wales. These matters include,
first:
“the provision of
facilities for post-16 education and
training”;
secondly,
provision about
institutions
“concerned
with the provision of further
education”,
including
provision for the establishment and dissolution of such institutions
and bodies conducting such education; thirdly, collaboration in
relation to the delivery of post-14 education; fourthly, financial
resources for education or training provided by further
education institutions, post-16 education or training, and research
related to such education and training; fifthly, inspection
of “education or training
provided by institutions concerned with the provision of further
education...post-16 education or training...the training of
teachers....and specialist teaching assistants for
schools”
and other
services such as career services; and sixthly,
“The provision of advice
and information...and the carrying out of studies in relation
to...education or training provided by institutions concerned with
the provision of further education...post-16 education or
training...the training of teachers....and specialist
teaching assistants for
schools”
and other
services such as career
services.
Under
the Government of Wales Act 2006, the National Assembly for Wales can
seek to enhance its powers, given parliamentary consent, by way of a
new procedure known as a legislative competence Order in Council. I do
not know how much members of the Committee know about those orders. I
have no doubt, Mr. Atkinson, that, given your encyclopaedic
knowledge of the affairs of this House, you are familiar with them,
but, to be frank, I certainly was not until I looked at clause 25. I
now have a rather better knowledge of them than I would otherwise have
had, and I have learned that the Government can indeed use those orders
for the purpose that I have described. Indeed, that is the nature of
those Orders in Council. Yet, in this instance, the Government have
chosen to add schedule 5 to the Government of Wales Act 2006 by primary
legislation. In other words, they have opted in this Bill to add to
that competence rather than pursuing an alternative
route.
Just last
month, the Welsh Affairs Committee reported its concerns about the
continued use of primary legislation for this purpose. To some degree,
that reflects the lively speeches that we heard from Welsh Members on
Second Reading who were anxious about consultation, the process and
whether the Bill was the right vehicle to do what it intends to
do.
Sarah
Teather:
This is a question about clarification, and it
may be that the Minister has the answer. I wonder whether the
Government chose to do this in this way because the 2006 Act had not
come into force when this Bill began being debated in Parliament. Maybe
the Minister will be able to answer
me.
Mr.
Hayes:
I wondered that too. I think that we will find,
when the Minister responds, that he will not use that as his defence,
because, having identified that as a possibility, I researched the
issue and found that that was probably not the case—I see that
the Minister is nodding, if not speaking, to confirm my
analysis.
The Welsh
Affairs Committee reported:
“We are concerned that
continuing to use primary legislation to extend the powers of the
National Assembly (in a parallel procedure to adding matters by way of
Legislative Competence Orders) will mean that matters introduced in
this way will escape the detailed arrangements for pre-legislative
scrutiny”.
That is the
point that hon. Members made on Second Reading. They felt that if the
alternative process had been adopted, there would have been
closer analysis of some of the proposals through pre-legislative
scrutiny.
The Select Committee also
said:
“It is unlikely
that a single clause in a wider Bill would be subject to the same
degree of scrutiny as a draft LCO, especially if the Bill is long and
complex and the relevant clause appears towards the end of it...We
are also concerned that the use of primary legislation denies the
opportunity for joint working between the Welsh Affairs Committee and
an Assembly committee in the pre-legislative scrutiny of proposed
LCOs...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.”
For those
reasons, and having looked closely at the Welsh Affairs Committee
report on legislative competence Orders in Council, I have five
specific questions for the Minister. Having come here and listened to
the rest of the debate, he will get his money’s worth, and so he
should.
Why was it
decided to use primary legislation in this instance? I am aware of the
difficulties of the minority Labour Administration in Wales—it
is not easy now in Wales, or anywhere else, for the governing party. I
congratulate my colleagues in the Welsh Conservative party on their
splendid result in the recent Assembly elections. There are now 12
Conservative representatives in the
Assembly.
By
using parallel procedures, the Government have created confusing
arrangements under which the extension of significant powers escapes
detailed pre-legislative scrutiny by either the Welsh Assembly or the
Welsh Affairs Committee. Some people have said to me—I do not
think that it is the case, but it is a lively matter, particularly
among Welsh colleagues—that the Government did not want the
matter to be dealt with in the other way, because Welsh representatives
would have created more fuss, would have asked more difficult questions
and would have been more critical of some aspects, so it was easier to
get the legislation through on the sly. I do not think that that is the
case, because I do not think that these Ministers operate in that way.
With their answers to my questions, they need to reassure those who are
making such claims, however. On Second Reading, hon. Members expressed
their concern. The former Secretary of State for Wales, no less, the
right hon. Member for Torfaen (Mr. Murphy) said:
“I am concerned,
however, about the way in which we deal with the pre-legislative
scrutiny of Bills and orders that give the National Assembly for Wales
new legislative powers... this is not quite what was expected when
the Government of Wales Bill was debated in this
place.”—[Official Report, 21 May 2007; Vol. 460,
c. 1010.]
When the former
Secretary of State issues an indictment of that strength, it is an
important matter.
The
right hon. Member for Islwyn (Mr. Touhig), the name of whose
constituency I could not pronounce at the time, although I have been
working on it—[
Interruption.
] I have not
been working on it hard enough, by the sound of it, but I have been
doing my best. He
added:
“I am
troubled—as was my right hon. Friend—by clause 25, which
makes amendments to the Government of Wales Act 2006. If the
clause is approved, it will transfer substantial responsibility to
legislate for further education and training from Parliament to the
National Assembly. Although I do not oppose the idea of using framework
legislation to transfer power from Parliament to the Assembly, I think
it wrong to do so without
full parliamentary scrutiny of such a change to the devolution
settlement...I am particularly worried after reading the
memorandum prepared by the National Assembly in support of clause 25
and provided for us by my hon. Friend the Under-Secretary of State for
Wales. The memorandum implies that the format set out in clause 25 for
giving the National Assembly primary legislative powers will become the
norm.”—[ Official Report, 21 May 2007; Vol. 460, c.
1015.]
Mr.
Austin Mitchell (Great Grimsby) (Lab): I hate to see the
hon. Gentleman troubled, because when he is troubled, the speeches get
longer and we shuffle more in inattention. He is making heavy weather
of the issue. Devolution is a process; it is not a full stop. What has
gone before is not the end of the matter. It is a process of
transferring more powers to the Assembly. Why does not he address the
principle? Does he agree with the transfer to Wales of these
powers?
Mr.
Hayes:
The principle of transferring powers stands
alongside the means of transferring them. If the allegation made by
former Welsh Ministers that this matter has not been handled properly
has any substance, then it deserves proper airing in this Committee. I
am not making heavy weather of this. Let us be honest, the Government
would not have put a Welsh Minister in this Committee if they did not
think that it was a big deal. If the Government had expected the clause
to be dealt with on the nod, the Minister would not be here ready to
deal with it.
I have
no doubt that Ministers and Whips were as surprised by the speeches on
Second Reading as I was. Having looked at the clause, I think it is an
important matter that warrants a little consideration in Committee.
However, mindful of the comments of the hon. Member for Great Grimsby,
I shall draw my remarks to a conclusion and put my four other questions
for the Minister in short order.
Before I do so, however, I
simply want to point out that the Secretary of State for Wales said
this in a written answer to the right hon. Member for
Torfaen:
“To
assist parliamentary scrutiny, all framework powers granting wider and
more permissive powers to the Assembly will be accompanied by an
explanatory memorandum setting out the policy context underlying the
proposals. Copies will be sent to all Welsh MPs and will be placed in
the Libraries of both Houses.”—[Official Report,
11 January 2007; Vol. 455, c.
661W.]
In those circumstances,
it would have been right and proper to have made that information
available to members of the Committee. I have checked, and I have not
received the explanatory memorandum, and I have spoken to the hon.
Member for Brent, East, who has not received it, too. I do not know
whether any of my hon. Friends have received it. Certainly, when I went
to the Library last night, the staff there could not locate it. I
finally came across it this morning, when I returned to the
Library—following a contact with the Department, it had become
available. I got it about 10 minutes before I entered the Committee at
9 am. I am concerned about that. I do not suspect any lack of good
will, but I certainly think that that was not appropriate, given the
assurance that was made about fully informing Members in the way that
responsible Ministers normally do. I hope that the Minister will say
something about
that.
The memorandum
implies that the format set out in clause 25 for giving the National
Assembly for Wales
primary legislative powers will become the norm. Can the Minister
confirm that it will become the norm? If so, what measures for
pre-legislative scrutiny will be established? Has the clause been
referred to the Welsh Affairs Committee, and has the Committee
commented on it? If framework papers such as clause 25 extend the scope
of the Welsh Assembly, are they not subject to scrutiny by the Welsh
Affairs Committee in the same way as legislative competence
orders? I think that
the hon. Member for Great Grimsby is right. In essence, this is about
transferring power, which is not in dispute. What is in dispute is the
way in which the Government have gone about it. The Government should
be held to account, particularly when Members from both sides of the
House are raising serious questions about whether the process allowed
proper comment, scrutiny and discussion before we reached this
stage.
Sarah
Teather (Brent, East) (LD): I should like to make a few
brief remarks. First, Liberal Democrats are very much in favour of
transferring more powers to the Welsh Assembly. If we had our way, we
would transfer all sorts of other things, but that is not under
discussion today. I am less concerned about the process than the
Conservatives. However, I am sorry that we did not have the chance to
consider the explanatory memorandum and hope that we will have the
opportunity to do so on Report, if questions arise.
Finally, it is notable that
clause 17 does not allow Welsh colleges the freedom to award foundation
degrees, and clause 25 does not give the Welsh Assembly the power to
confer that freedom. Will the Minister tell us the reason for that
decision?
1.45
pm
The
Parliamentary Under-Secretary of State for Wales (Nick
Ainger):
This is my first contribution to the
Committee’s debates, Mr. Atkinson, and I belatedly
welcome you to the Chair.
Some
interesting points have been raised. As the hon. Member for South
Holland and The Deepings explained, he might not have spoken were it
not for the contributions made by my right hon. Friends the Members for
Torfaen and for Islwyn. Both are genuinely my friends: I was the
Parliamentary Private Secretary to the former when he was Secretary of
State for Wales, and I was the Whip and business manager at the Wales
Office when the latter was doing my present job. However, those
comments did not come as a surprise to the hon. Gentleman. I have had a
number of discussions with my right hon. Friends; they have genuine
concerns, and I shall address them
today.
I
owe the Committee an apology about the explanatory memorandum. Two Acts
have used primary legislation to pass legislative competence to the
Welsh Assembly. The first was the NHS Redress Act 2006, and the second
was the Education and Inspections Act 2006. Both went through without
great comment being made on the transfer of powers to the Assembly. The
practice followed for the Bill was the same as used for those Acts. I
wrote to all Welsh Members of Parliament and to the Welsh affairs
Opposition Front-Bench spokesmen
in both Houses—in the Commons, it is the hon. Member for Chesham
and Amersham (Mrs. Gillan)—to explain what was
happening, drawing their attention to the relevant clauses and
enclosing an explanatory
memorandum.
It
was an omission that the Committee did not receive that explanatory
memorandum, and I apologise. It would certainly have been better if
hon. Members had had a copy to hand. However, irrespective of the
experience of the hon. Member for South Holland and The Deepings, a
copy was in the Library, and it is unfortunate that it was not readily
to hand when he first requested it. I hope that he accepts my answer.
We are not trying to get the provision through on the sly, or we would
not have written to Members of both Houses informing them that the
relevant clauses allowed the transfer of powers and provided them with
a copy of the explanatory memorandum.
The hon. Gentleman raised a
number of questions—he said that there were four or five, but I
counted only three, so perhaps there were some sub-questions. He asked
why the primary legislative route had been taken rather than the
Order-in-Council procedure. The answer is simple. It is a question of
timing. At the moment, the National Assembly for Wales is conducting an
independent review of further education in Wales. That review will be
reporting in the autumn. If, as my right hon. Friend the Member for
Islwyn wanted, we were to wait until the report was completed and thus
have far more detail about what was to be placed in a framework power
or an Order in Council, there would be considerable delay. In fact,
following the Government of Wales Act 2006, there are two routes
through which legislative competence can be transferred to the
Assembly, namely primary powers and the Order-in-Council
procedure.
Because
the Order-in-Council process—an hour and a half debate in this
place and an hour and a half debate in the other place—is not
amendable, we have encouraged the Welsh Affairs Committee to undertake
the pre-legislative scrutiny of Orders in Council, although we cannot
demand that it does so. We have encouraged it to take on that role,
because the opportunities for Members of this House and of the other
place to scrutinise Orders in Council are extremely limited. Orders in
Council are unamendable and, although they are debatable, the answer at
the end of the debate is either yes or no.
We have always argued that we
already have sufficient powers to examine the proposal to transfer the
competence from this place to the National Assembly—indeed, we
are scrutinising the clause today—and we are drawing attention
to these matters by the distribution of the explanatory memorandum to
relevant hon. Members. I am sure that we will give an adequate response
to the Welsh Affairs Committee report that highlights the issue. The
open evidence sessions that the Government have introduced at the
beginning of Public Bill Committees provide a further opportunity for
scrutiny.
Because of
the legislative timetable, the problem for any Government, irrespective
of their views about pre-legislative scrutiny—this Government
are great advocates of pre-legislative scrutiny and of draft
Bills—is that there is not always time to provide a draft Bill,
to inform a Select Committee that a particular Bill
is being produced or to allow for that Committee to conduct
pre-legislative scrutiny. The Government’s record on having
tried to improve the scrutiny of our legislative process is excellent.
In our response to the Welsh Affairs Committee, we will highlight the
issues and mention some of the ways in which we can assist not only
that Committee but all Members to scrutinise the matter as much as
possible.
Mr.
Hayes:
The Minister is dealing with the matter in a
considered and professional way. He seems to be saying that it is
sometimes better to handle matters through primary legislation, because
that allows for the sort of full and open debate that we are having
here. However, the Welsh Affairs Committee is particular, as he has
identified, about the importance of pre-legislative scrutiny,
especially in the sort of case in which, in its terms, primary
legislation could be a device for a general, rather than a specific,
extension of powers.
The Bill has had a long journey
through the House. It started in the Lords some time ago, and it has
been a cause of frustration among Opposition Front Benchers that it has
taken so long to reach this Committee. Was the Welsh Affairs Committee
involved at all—that is one of my five questions, of which I
shall remind the Committee at the end—in this piece of
legislation? If it was, although the Minister’s points are being
made in good faith, we still have a
problem.
Nick
Ainger:
My problem is that I cannot request the Welsh
Affairs Committee to undertake any inquiry or any pre-legislative
scrutiny, so it was not invited to do so. However, every member of that
Committee received a letter signed by me, including a copy of the
explanatory memorandum, which goes into considerable detail about what
is proposed. I know all the Committee members extremely well, including
the three Conservative members of the Committee and the Conservative
Front-Bench spokesman. If they had genuine concerns about the Bill and
what was being transferred to the Assembly, they would have drawn them
to the attention of the Chairman and requested some form of inquiry or
pre-legislative scrutiny. They have had time to do that, and I assume
that they decided that they did not want to, so it was not a question
of my inviting them. I drew to the attention of every member of that
Committee that the clause was going through the House, and I provided
an explanatory memorandum. It was for them to make that decision, which
I could not direct them to take. I hope that the hon. Gentleman accepts
that
point.
I
have touched on the explanatory memorandum and what the norm will be.
We will cover this in our response to the Welsh Affairs Committee
report. We will provide every opportunity, given the time constraints
in our legislative programme, for pre-legislative scrutiny. We are not
in the business of trying to slip any of this through. In this case,
even though there has been criticism, we were forewarning people of
what was coming through and what was being
proposed.
Mr.
Hayes:
I emphasise that I have no doubts about the
Minister’s good will. What discussions did he have with the
Assembly? Presumably there were formal discussions with the Assembly
about this important change. What form did they take, when were they
and with whom?
Nick
Ainger:
There is a process between officials in the
Department for Education and Skills and the Department for Education,
Lifelong Learning and Skills in the Assembly. Once it was known that
the Bill was coming, the process of discussions at official level to
bring forward a framework power started. The White Paper preceding the
Government of Wales Act 2006, which was published in September 2005,
identified that one of the ways to give legislative competence to the
Assembly was through this primary legislative route, where framework
powers would be included, where appropriate, in UK or England and Wales
pieces of legislation. We flagged that up then, and since then we have
had the NHS Redress Act 2006 and the Education and Inspections Act
2006, which have given framework powers in those
areas.
Mr.
Hayes:
I hear what the Minister has said about discussions
between officials, but for the record there have been no formal
discussions with Members of the Assembly. There has been no opportunity
for the Assembly to comment on or discuss the implications of this
change in primary legislation, which is quite significant in respect of
further education in
Wales.
Nick
Ainger:
No, that is not the case. I attended the Education
and Lifelong Learning Committee in February—it is their
equivalent of our Select Committee—to answer questions from
Assembly Members on this Bill, the framework powers and so on. There
has been that relationship. I also have regular bilateral talks with
Assembly Ministers, where these matters are discussed. There has been
considerable involvement by the Assembly itself in taking forward and
developing the clause.
I think that I have responded
to all the hon. Gentleman’s questions and points. The hon.
Member for Brent, East, going back to clause 17, asked why clause 25
does not give further education colleges in Wales the power to award
foundation degrees. Wales is a small country with only 25 FE colleges.
Its further and higher education consortia have a good reputation for
working together. They enable education institutions to provide a wide
range of opportunities for learners through the sharing of resources,
such as staff, equipment and infrastructure. The current evidence base
suggests that delivery should continue to be via consortia arrangements
between further and higher education
providers.
2
pm
Sarah
Teather:
It is not clear to me how that differs from the
situation in England. In one of Tuesday’s sittings, all sides
agreed that there are good models in England for collaboration between
FE and HE
institutions.
Nick
Ainger:
The FE colleges in Wales are not demanding
degree-awarding powers. One or two might be, but others are perfectly
satisfied with the current consortia arrangements that they have with
HE institutions. As I said in my response to the hon. Member for South
Holland and The Deepings, however, an independent review of further
education in Wales is under way, so the issue will be raised by
Fforwm, which represents FE institutions in Wales.
Individual colleges may also make their case and the review will
consider that.
If there is
a clear recommendation that degree-awarding powers be given to FE
institutions in Wales and the Assembly agrees with it, there will be
the option to bring that forward as an Order in Council, but there is
not anywhere near as much pressure in Wales as there is in England for
FE institutions to have degree-awarding powers. That is why the measure
has not been included in the
clause.
I am conscious
of the time. I think that I have responded to all the points that hon.
Members have made.
Mr.
Rob Wilson (Reading, East) (Con): I should like to press
the Minister further on the comments of my hon. Friend the Member for
South Holland and The Deepings regarding consultation with Welsh
Assembly Members. The Minister suggested that there was a significant
level of consultation with them, but the right hon. Member for Islwyn
said on Second Reading that no consultation had taken place. Was he
just badly briefed? Was he out of touch? Why would he say that no
consultation had taken place? A trend seems to be developing: no
consultation with the universities, no consultation with the Assembly.
It all sounds a bit haphazard and rushed.
Nick
Ainger:
I reassure the hon. Gentleman that there was wide
consultation. Fforwm, which is the equivalent of the Association of
Colleges in England, is aware of the proposals and has welcomed them.
As I said, I attended and gave evidence to the relevant Committee in
the Assembly. Of course, we will not know the precise detail of what
the Assembly will ultimately propose until the independent review has
reported in the autumn. If the clause is passed by the House, the
Assembly will bring forward an Assembly Measure, which is primary
legislation— the equivalent of an Act of Parliament—that
goes through exactly the same level of scrutiny as does primary
legislation in this place. At that point, it would consult on the
detail of the Measure.
I am sure that the hon.
Gentleman was making a genuine point, but I can assure him that there
will be considerable consultation, and not just through the process of
the independent review. Once that review makes its recommendations, and
if they are accepted by the Assembly, there will be thorough scrutiny
of any Assembly
Measure.
The clause
delivers the deepening of the Welsh devolution settlement, which is UK
Government policy. It ensures that the National Assembly for Wales has
the power that it needs, when it needs it, to debate and determine the
appropriateness of proposals for the development of further education
in Wales that are put forward by the Welsh Assembly Government. It is,
therefore, an important clause and I hope that the Committee will give
it full support.
Mr.
Hayes:
I am grateful to the Minister for coming to the
Committee and giving us the benefit of his advice. I asked five
questions. First, I asked why it was
decided to use primary legislation in this instance.
The Minister said that it was because it would enable us to have a
wider debate—I guess—on the subject. That seemed to be
the inference of his answer. Secondly, I asked him why the explanatory
memorandum was not sent to members of the Committee, and he has
generously apologised for that oversight. I think that we have learned
a lesson from that oversight and in future it is absolutely necessary
that that type of material is made available to members of the
Committee. Thirdly, I asked him whether this process was going to
become the norm, in terms of the use of primary legislative powers. I
am not absolutely sure that I received an answer to that question.
Forgive me, but I am going to ask him to return to question
three.
Nick
Ainger:
On that point, there are two routes to confer
primary legislative powers on the Assembly. One is through the Order in
Council process; I did not want to go on at huge length about that, but
I think that I explained it. The second is through primary legislation
in this place.
Perhaps I ought to take a step
back, to explain matters. The White Paper that we published in
September 2005 addressed the issue of how to enhance the legislative
capability of the National Assembly for Wales, following on from the
Richard report a few years before. The problem that was identified was
that the Wales Office, through the Welsh Assembly, had to compete with
all other UK Government Departments for a slot in the legislative
process. We felt that that was wrong. Therefore we proposed two routes
for giving the Assembly enhanced powers. One is the Order-in-Council
process, which is part 3 of the Government of Wales Act 2006. The other
route, which was announced in the White Paper, was that, where
appropriate, a UK Government Department would draft its legislation to
allow these framework powers to transfer primary legislative powers to
the Assembly. So, that process will be the norm whenever a suitable
vehicle—a platform in UK legislative terms—comes along.
If there is not such a suitable vehicle and the Assembly needs the
legislative competence, it can gain it through the Order-in-Council
process.
The Minister
for Higher Education and Lifelong Learning, my hon. Friend the Member
for Harlow, was referring to the fact that it is not since the early
1990s that we have had a Further Education Bill going through the
House. Obviously, that would be far too long a period of time for the
Assembly, which has all the Executive functions that my hon. Friend has
but, unlike my hon. Friend, does not, at the moment, have the ability
to legislate. That is why we will use UK Government Bills as a platform
to transfer powers to the Assembly, in a process that is properly
scrutinised by this
place.
Mr.
Hayes:
I thank the Minister. What is emerging from this
debate is that, in its response to the Welsh Affairs Committee, the
Government will clarify exactly when these different routes are
appropriate, and it may depend on the legislation itself.
Alternatively, it may depend on the legislative history of the subject
area, in the way that the hon. Gentleman has just described. I would
even imagine that it may depend on the complexity of the material and
therefore the need for detailed pre-legislative scrutiny. There is
beginning to
emerge, certainly on this side of the Chamber, an understanding of
precisely where the Government’s thinking is leading. It is an
iterative business, and I guess that as the Government respond to the
welfare state, within the dialogue that takes place between them, that
will all become clearer.
For the
record, the fourth and fifth questions—so that Hansard
can get an absolutely accurate picture of every word that I
issued—were about whether the matter had been referred to the
Welsh Affairs Select Committee and whether it had been invited to
comment. The hon. Gentleman told us in response that it had been
“notified”, but that it had been up to the Committee to
decide what to do, rather than him. Finally, the answer to my fifth
question—whether the Committee had commented—is clearly
no, given the comments that were made on Second Reading and
elsewhere.
This has
been helpful. We are learning. Perhaps if there had been a greater
exchange of information in all kinds of ways, the comments that were
made on Second Reading, which stimulated the detailed discussions that
we have today, would not have been made. However, in a way, perhaps it
is good that we have had those discussions, because they have allowed
us full discussions of this process, in the way that the hon. Gentleman
has dealt with the matters. We will not want to divide the
Committee.
Question put and agreed
to.
Clause
25
ordered to stand part of the
Bill.
Clause
s
26 and
2
7
ordered to stand part of the
Bill.
| 
