The
Committee consisted of the following
Members:
Chairman:
Mr.
Greg
Pope
Baldry,
Tony
(Banbury) (Con)
Baron,
Mr. John
(Billericay)
(Con)
David,
Mr. Wayne
(Parliamentary Under-Secretary of State for
Wales)
Davidson,
Mr. Ian
(Glasgow, South-West)
(Lab/Co-op)
Griffith,
Nia
(Llanelli)
(Lab)
Horam,
Mr. John
(Orpington)
(Con)
Howells,
Dr. Kim
(Pontypridd)
(Lab)
James,
Mrs. Siân C.
(Swansea, East)
(Lab)
Jones,
Mr. David
(Clwyd, West)
(Con)
McDonagh,
Siobhain
(Mitcham and Morden)
(Lab)
Plaskitt,
Mr. James
(Warwick and Leamington)
(Lab)
Price,
Adam
(Carmarthen, East and Dinefwr)
(PC)
Pritchard,
Mark
(The Wrekin)
(Con)
Stewart,
Ian
(Eccles) (Lab)
Tami,
Mark
(Alyn and Deeside)
(Lab)
Williams,
Mr. Roger
(Brecon and Radnorshire)
(LD)
Mr. Mike Clark,
Committee Clerk
attended
the Committee
Sixth
Delegated Legislation
Committee
Wednesday 12
November
2008
[Mr.
Greg Pope in the
Chair]
Draft National Assembly for Wales (Legislative Competence) (Social Welfare and Other Fields) Order 2008
2.30
pm
The
Parliamentary Under-Secretary of State for Wales (Mr. Wayne
David): I beg to
move,
That
the Committee has considered the draft National Assembly for Wales
(Legislative Competence) (Social Welfare and Other Fields) Order
2008.
It
is a pleasure to be in Committee serving under your chairmanship,
Mr. Pope. This is the first time that I have presented a
draft order. It is a particular pleasure because it deals with a
subject that members of the Committee are rightly concerned about.
Indeed, as someone with a background in youth policy work and having
worked with disaffected youngsters, I am pleased to be introducing the
order
today.
The
order confers legislative competence on the National Assembly for Wales
in relation to safeguarding and promoting the well-being of all
children and young people in Wales. It is a priority of both the United
Kingdom Government and the Welsh Assembly Government to ensure that
children and young people are provided with the best opportunities and
support to enable them to take their place in society as active
citizens. The draft order embraces those shared
values.
The
National Assembly for Wales approved the order on 15 July. It will give
the Assembly power to legislate by Assembly measures in relation to
social care services, arrangements and planning to help vulnerable
children, as well as for children and young people more generally, and
those who care for children. The order inserts matters into schedule 5
of the Government of Wales Act 2006, primarily in the social welfare
field. It also inserts matters into the education and training field
and the sport and recreation field. That ensures that any Assembly
legislation relating to children and young people can also cover
aspects important to their welfare, such as play facilities and
pre-school facilities for
children.
The
powers sought will enable the Welsh Assembly Government to deliver
their vision for children and young people. Their programme calls for a
progressive agenda to improve the quality of life of people in all of
Wales, especially the most vulnerable and the disadvantaged. In
tackling child poverty and social exclusion, the Welsh Assembly
Government aim to promote equality of opportunity for some of the most
disadvantaged children and families who are in greatest need throughout
Walesthose who, without additional support, might be
disproportionately
disadvantaged.
2.32
pm
Sitting
suspended for a Division in the House.
2.50
pm
On
resuming
Mr.
David: As I was saying, the Welsh Assembly
Governments principal aims are to consolidate and reform the
law on the safeguarding and welfare of all children and young people
and to strengthen preventive measures to tackle child poverty. It will
be a significant task and will take some time, but early preparations
have commenced. In the immediate term, the draft order will enable the
Assembly Government to take early action on child poverty and
strengthen support for the children and families in most need. The
Assembly Government have consulted on the principles of the policies in
order to inform their development
further.
In
recent years, there has been a progressive divergence between England
and Wales in policy, planning and structures for children services.
That is what devolution is all about. For example, Wales does not have
childrens trusts. Instead, services operate on a partnership
model in which the local authoritys director of social services
and the chief education officer are jointly responsible for the welfare
of vulnerable children and the families in most need. Different
arrangements also exist in the regulation, registration and inspection
arrangements for childrens residential care services in Wales,
as well as for the regulation of placement of children in accommodation
in
Wales.
Practical
examples of what the Welsh Assembly Government intend to do with the
enhanced powers include, first, making payments into the child trust
fund accounts of wider groups of children and young people. That will
build on an administrative system that has been in place for over three
years, in which local authorities make annual contributions funded by
the Welsh Assembly Government to the child trust fund accounts of
children in care. The Assembly Government will also introduce free
child care for two-year-olds in greatest need and create duties for
public bodies in Wales to demonstrate their contribution to ending
child
poverty.
Hon.
Members will appreciate that safeguarding children requires close and
co-operative working between agencies in devolved and non-devolved
areas. Matter 15.6 of the draft order enables the Assembly to legislate
in relation to how public authorities, including councils and police,
work together to safeguard and promote the well-being of children and
young people. That does not, of course, give the Assembly competence to
legislate directly in respect of non-devolved
matters.
The
order was considered by the Lords Constitution Committee, the Select
Committee on Welsh Affairs and a Committee of the National Assembly for
Wales. The scrutiny process was rigorous and effective, and I commend
the Committees for their work. The Constitution Committee concluded
that the order does not raise any matters of constitutional principle.
I am pleased that both the Welsh Affairs Committee and the National
Assembly Committee supported the principles underpinning the order,
with limited substantive
concerns.
All
recommendations arising from the Committees final reports have
been considered carefully, and the draft order reflects the outcomes of
that consideration. The Welsh Affairs Committee sought confirmation
that the order did not provide competence to allow the National
Assembly for Wales to remove the defence of
reasonable chastisement relating to the punishment of children. I would
like to make it absolutely clear to hon. Members that the draft order
does not provide scope for the Welsh Assembly Government to legislate
to prohibit smacking. Following pre-legislative scrutiny, the
orders accompanying explanatory memorandum has been amended to
make that point
clearer.
The
Welsh Affairs Committee also recommended including the UK Border Agency
and the Welsh fire and rescue services in the list of bodies on whom
the Assembly could place a duty of co-operation to safeguard and
promote the well-being of children and young people. I confirm that the
fire and rescue services are included by virtue of matter 15.2. The
draft partial Immigration and Citizenship Bill published in July will
place the duty on the UK Border Agency in its activities across the UK.
It would be inappropriate to pre-empt that legislation by including the
UKBA within the scope of the
order.
Finally,
the Welsh Affairs Committee recommended making it clear that the draft
order does nothing to weaken the Childrens
Commissioners powers in respect of whistleblowing. The Welsh
Assembly Government concur fully that whistleblowing is an essential
safeguard. However, they wish to ensure that the Assembly can legislate
on all aspects of the commissioners role and are concerned that
making specific reference to whistleblowing could restrict their
ability to do
so.
The
granting of legislative competence in the draft order will enable the
Welsh Assembly Government to continue with their policy of improving
the lives and outcomes of some of the most vulnerable children and
families in Wales. It will allow the National Assembly for Wales to
pass measures to ensure the welfare of children and young people in
Wales, to tackle poverty and social exclusion, better to define public
bodies role in contributing to ending child poverty, and to
rationalise and consolidate the statute book on vulnerable
children.
The
draft order clearly demonstrates that the UK and Welsh Assembly
Governments are working in partnership and delivering for the people of
Wales. I commend it to the
Committee.
2.56
pm
Mr.
David Jones (Clwyd, West) (Con): It is a pleasure to serve
under your chairmanship, Mr.
Pope.
As
we heard from the Minister, the proposed order is wide in scope and
seeks to confer legislative competence on the Assembly, primarily in
the field of social welfare but also in the fields of education and
training, and sport and recreation. The explanatory memorandum
comprehensively sets out the policy background to the proposed order
and includes the worrying statistic that some 28 per cent. of children
in Wales170,000 childrenlive in poverty in households
with incomes below the 60 per cent.
median.
The
memorandum points out, as indeed was pointed out in evidence to the
Select Committee, that a large volume of fragmented legislation
relating to the welfare of children has grown up organically, so to
speak, over the years. The Welsh Assembly Government say that the order
will allow the reform and consolidation of existing legislation in
relation to vulnerable children and will enable the Assembly Government
to bring
about greater clarity for local government and its partners as to their
duties to promote social welfare for children and young
people.
I
would appreciate the Ministers observations on several matters
that arise from the Select Committees report. First, although
the evidence of the Welsh Deputy Minister and officials to the Select
Committee contended that legislative constraints were operating on the
Welsh Assembly Governments ability to legislate in the proposed
area, as a consequence of which enhanced legislative competence is now
sought, those constraints were not made overwhelmingly clear to the
Select Committee. There was a reference by witnesses to the need to
adopt a so-called Wales approach, but that in itself did not take
things much
further.
The
Select Committee recommended that in future it would be helpful, when
existing legislative constraint is cited as a reason for applying for
an order, if a comprehensive explanation of the constraint were
included in the explanatory memorandum. Can the Minister please confirm
that the Wales Office accepts that recommendation of the Select
Committee and that in future explanations of legislative constraints
will be given in explanatory
memorandums?
Secondly,
the Select Committee pointed out that articles 1(3) and 6 in the
original draft order considered by the Committee, which have been
omitted from the draft before us today, made changes to the list of
excepted matters relating to highways and transport under field 10. The
Select Committee noted in its report that it discourages proposed
orders that address a specific subjectin this case, vulnerable
childrenfrom being used as an opportunity to make changes in
entirely unrelated fields. Can the Minister please confirm that in
future orders addressing a specific subject will be narrowly focused
and that his Department will resist the temptation to ski
off-piste?
Thirdly,
perhaps most important, the Select Committee noted with concern the
evidence received from the deputy Childrens Commissioner for
Wales that the split in responsibilities between England and Wales for
safeguarding and promoting the well-being of children and young people
had resulted in some vulnerable children who were ordinarily resident
on one side of the border but cared for on the other side not receiving
the services that they
need.
The
evidence of the deputy Childrens Commissioner on the matter was
extremely disturbing. She noted a gap in the legislative frameworks
governing the activities of the Welsh and English childrens
commissioners:
there
is that gap there that children are falling
down.
She
continued:
To
sit here and say it objectively is one thing, but when you are meeting
these children and seeing the impact on them, you would not believe
that these things are happening in the UK and there is not an
organisation which is able or empowered to properly champion their
rights.
Given
the events in the news this morning, that concern is all the greater.
The deputy commissioner went on to say that the most effective way of
addressing that gap was by way of an overarching legal framework
dealing with cross-border issues, which I imagine would have to be the
subject of primary legislation.
Most
worryingly, the deputy commissioners evidence was that, in the
aftermath of this legislative competence order, there was potential for
cross-border problems to increase. That must surely be a matter of
concern to everyone in the Committee. Are the Government, in the light
of the concerns of the deputy commissioner, taking steps to put such an
overarching legal framework in place, to ensure that the cross-border
difficulties identified by the deputy commissioner are addressed and
not, as is her concern,
exacerbated?
The
Minister has already referred to the concerns of the Select Committee
about the common law defence of reasonable chastisement, which is
available to a parent or an individual in loco parentis. The evidence
of the Assembly Minister to the Select Committee was that the Assembly
Government were committed to an agenda of banning corporal punishment
in all settings, including the home. I am pleased to hear
todays assurances by the Minister that the scope of the
proposed LCO would not extend to permitting the Assembly Government to
abolish the defence of reasonable
chastisement.
Finally,
the Select Committee recommended that the proposed order be amended to
make it clear that nothing in it would weaken the Childrens
Commissioners existing powers on whistleblowing, which the
Minister has already touched on. The commissioner described
that as one of
his
essential
safeguards in promoting and safeguarding the rights and welfare of
children.
Notwithstanding
that recommendation, no provision appears to have been inserted in the
draft order before us. The Minister indicated that the view of the
Assembly Government is that to insert such a provision would somehow be
restrictive of the powers of the Assembly, but I find it hard to see
how it would not be possible to come up with a form of words that would
touch upon the issue of whistleblowing explicitly. I regard as a matter
of some regret that the issue was not specifically addressed in the
order.
Subject
to hearing from the Minister on the above, I have no further
observations to make. We shall not oppose the
order.
3.3
pm
Mark
Williams (Ceredigion) (LD): It is a great pleasure to
serve under your chairmanship, Mr. Pope. I welcome the
Under-Secretary of State for Wales, the hon. Member for Caerphilly,
presenting the first LCO in his new
role.
The
LCO further rationalises and extends the powers of the Assembly, the
powers for making provision for vulnerable children. We welcome that
and feel that the order is complementary to the many powers
that Wales already has in this area and will gain through other
legislation, such as the Children and Young Persons
Bill.
The
hon. Member for Clwyd, West has alluded to the evidence given by
Mrs. Maria Battle, the deputy Childrens Commissioner
for Wales, and I shall do so, too. My one real point of agreement with
the hon. Gentleman was about the deputy commissioners concern
over the split in responsibilities between Westminster and Cardiff,
which is a worrying situation. Representing a devolutionist party, I
shall resist the temptation to pursue the skiing analogies, but I share
the hon. Gentlemans concerns about that split in
responsibilities.
Mrs.
Battle, in her evidence to the Select Committee, of which I am a
member, said that the order would be invaluable in the consolidation of
the work of the Assembly in this area. She spoke specifically about the
breadth of the provisionsthe Minister has alluded to some of
the Assemblys priorities in arriving at the Measures that it
wishes to introduce under the order. Mrs. Battle welcomed
the emphasis on early intervention, support for children and their
families, as well as for children in care or who have left care, and
the broad poverty agenda. I share the concerns of Mrs.
Battle and the Minister about the scale of the problem.
The hon.
Member for Clwyd, West said that 28 per cent. of children are living on
incomes lower than the 60 per cent. median; there is a ward
in my constituency where 70 per cent. of children are living on incomes
lower than that median. We are all aware in our constituencies of the
enormity of the challenge facing the Assembly Government. The Assembly
needs all possible powers to support the work that it is doing and to
undertake a coherent approach across Wales.
I was pleased
by the suggestion made during the hearings of the Welsh Affairs
Committee that the Assembly may wish to provide for a Measure to make
the Childrens Commissioner for Wales accountable to the
National Assembly rather than the Assembly Government, as is currently
the case. That would strengthen the role played by the
Childrens Commissioner for Wales, ensuring transparency and
accountability.
We
have heard about some of the specific tasks that the Assembly wishes to
undertake. However, we are here this afternoon to decide whether the
Assembly should have the powers to introduce measures in those areas,
and it is right that it should have them. The powers are welcome; they
are well within the confines of the rather limited devolution
settlement.
I
welcome the order. It has the potential to enable Wales to continue
developing a distinctive Welsh approach to the welfare of vulnerable
children. It will be complementary to the goals that the Assembly is
already trying to achieve and I have no hesitation in supporting it. I
look forward to the positive Measures that I anticipate the Assembly
will introduce.
I end with a
quote from the deputy Childrens Commissioner for Wales. She
said in our evidence session in the Welsh Affairs
Committee:
Obviously
the real test will be how this makes a difference in the lives of those
children in Wales who are vulnerable and who are in
poverty.
The
LCO gives the Assembly the opportunity to rise to that important
challenge.
3.7
pm
Adam
Price (Carmarthen, East and Dinefwr) (PC): It is a
pleasure to serve under you, Mr.
Pope.
As
has already been mentioned, there are many positive aspects about the
possibilities that will be opened up by this legislative competence
order. I would like to outline just a few of them.
There is the
possibility for additional sums to be added by the Assembly Government
to the child trust fund, which, it must be said, was created by a
Labour Government in Westminster. It was a Labour manifesto commitment
in the Assembly election that my party was very happy to
support.
As we have
heard, there is the possibility of more flexibility in designing
anti-poverty measures and there is a long-standing commitmentby
both the previous Administration and the present oneto end
child poverty in Wales. We are fully supportive of that commitment and
there will be opportunities to redesign successful programmes such as
Flying Start.
Under the
provisions of the LCO, there will also be the ability to create a
statutory right to child care. As we have just heard from the hon.
Member for Ceredigion, there will be opportunities to change the lines
of accountability of the Childrens Commissioner, for which I
believe there is broad political support.
There is much
to welcome. I have just one observation about the process. Obviously,
Wales is a learning country; we are a young democracy. This is the
process of governance. We have one of the most complex systems of
government in the world, but that is the system of government we have
and we must try to make it work as best we can for the people of
Wales.
One or two
issues were raised about the parallel scrutiny process this time
around, due to the fact that the originallet me get my
nomenclature rightdraft preliminary order, or some such
description, was different from the draft order that was laid. That
meant that the Assembly Committee scrutinising the order did not have
time to rescrutinise it. Certainly some members of the Committee
expressed the desire to hold a joint scrutiny session with the Welsh
Affairs Committee, which was not possible for a variety of reasons. I
hope that the Minister will comment on that matter. Perhaps there were
specific issues in that case, but it would be advantageous if the
teething problems in the scrutiny process were
overcome.
My
final remarks relate to the matter that was specifically excluded from
the order. Whether Labour Members believe me, it is of some regret that
political debate in Wales about devolution often seems to coalesce
around the issues that are not in orders rather than those contained in
them. The Minister might agree, although we might draw different
conclusions. Obviously, the debate ranged around the reasonable
chastisement defence and a ban on smacking. The original LCO draft
included a simple reference to safeguarding children from harm and
neglect, but that has now been changed to a new matter under article 3,
which makes it clear that the scope for legislative competence is
confined to the role of public authorities. It does not refer to
private behaviour within the
home.
The
Minister is right: the LCO does not confer competence on the Welsh
National Assembly to bring about a ban on smacking. That is a matter of
great regret. I shall not go into the pros and cons of that particular
argument, because I want to say a few words about the implications of
the order. However, I point out, in passing, that there is political
consensus in Wales throughout all parties in favour of banning the
corporal punishment of children. There is majority support for it in
the Assembly, while there is a consensus in that regard among
organisations and charities that work with children and young people.
It is part of the stated intent of the National Assembly and the Welsh
Assembly Government to incorporate as much as possible the principles
behind the United Nations convention on the rights of the
child.
Wales could
have led the way in social policy, as the Welsh Assembly Government did
on the ban on smoking. We were not the first to introduce a ban, but
the Welsh Assembly was the first legislature to vote in favour of it.
It did not have the power to act immediately. We did the same with the
creation of the Childrens Commissioner as well as with the
abolition of prescription charges, which has now been followed in
Scotland. From my perspective, the whole point of democratic devolution
was to act as a laboratory of democracy where social innovations could
be brought about and then shared throughout the United Kingdom. I have
no doubt that if the National Assembly had been enabled by the
legislation to introduce a ban on corporal punishment, other parts of
the United Kingdom would have followed because they would have seen
that it was practicable and that some of peoples legitimate
concerns about the ban could be overcome. It would have enhanced child
protection, which was the purpose of the
Measure.
The
LCO is particularly interesting because the discussion between the
Wales Office and the Welsh Assembly Government hinged on a different
legal interpretation of the Government of Wales Act. It could have had
implications in other contexts. There was a legitimate policy
difference between the Welsh Government and the Westminster Government.
I think that progressive divergence was the elegant
phrase that the Minister used for the difference in policy emphases
that will inevitably flow from democratic devolution. In this case, it
was not just a policy difference, but a difference of legal
interpretation. If he had so chosen, the Counsel General could have
remitted the matter to the Judicial Committee of the Privy Council for
legal judgment. He chose not to do that, as did the Welsh Assembly
Government in the case under discussion.
I suspect
that there was a fear that the entire legislative competence order
could have been lost if the Welsh Assembly Government stuck to their
guns, as it were, on the issue. I am not privy to those
discussionsI can hear hon. Members thinking, Thank
goodness. It would be entirely unacceptable for a Welsh
Assembly Government to be held to political ransom because of policy
divergences or different interpretations of a very complex settlement.
There is a parallel with another legislative competence order that the
Welsh Affairs Committee has just reported on, which I will not go into,
on affordable
housing.
If
we support democratic devolution, we have to allow the Assembly to
develop its own policies. I have never understood why we, in this
place, are more qualified to make decisions on behalf of the people of
Wales on smacking children than the Assembly, which is where the Welsh
Government sit. Ironically, we are treating Assembly Members like
recalcitrant children who cannot be trusted to use their powers
responsibly. After seven years in this place, I would put more trust in
the National Assembly for Wales to act responsibly and progressively in
many cases than the House of
Commons.
There
is confusion because we have an opaque settlement. Even the
Governments White Paper makes it clear that it is not for the
Government in Westminster or for this House to try to second-guess
every use that might be made of the devolution of a general competence
area. Either we devolve or we do not, rather than
trying
continually to narrow the scope because we are not particularly happy
with a legislative area. In their White Paper, the Government
said:
However,
as the power would be a general and continuing one for that particular
policy area, this would serve only as an example of what could be done;
the issue for the Committees and for each House would be the
appropriateness in general of delegating legislative authority to the
Assembly on the particular policy area specified in the draft Order in
Council.
I
congratulate the Welsh Affairs Committee on their detailed
workthey received some elucidation about the fire service in
relation to the LCO. My fear is that, as we have seen in this case and
have begun to see in other cases, the legitimate process of
pre-legislative scrutiny might degenerate into a form of constitutional
crystal ball gazing in which we are constantly discussing the
possibility of a measure coming forward that we might not like. Either
we trust in devolution or we do not. As the explanatory memorandum
stresses:
Any
Assembly Measures brought forward as a result of the legislative
competence conferred by this instrument would usually first be subject
to consultation. Assembly Measures are a matter for the National
Assembly for Wales to consider.
That is the
principle and the spirit of the devolution settlement. This is
ultimately a shame because we are going to lose valuable time in Wales
in bringing about the radical social innovation that we could have if
we do not have this exclusion. I hope that in a sprit of constructive
fraternity we can avoid this constant struggle for legislative power
between either end of the M4. Ultimately, peoples trust in
democratic devolution will be corroded, if they constantly see a series
of constitutional
crises.
3.20
pm