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Draft National Assembly for Wales (Legislative Competence) (Social Welfare and Other Fields) Order 2008

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 Wales—those 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 Government’s 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 children’s trusts. Instead, services operate on a partnership model in which the local authority’s 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 children’s 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 order’s 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 Children’s Commissioner’s 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 commissioner’s 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 Wales—170,000 children—live 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 Minister’s observations on several matters that arise from the Select Committee’s 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 Government’s 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 subject—in this case, vulnerable children—from 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 Children’s 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 Children’s Commissioner on the matter was extremely disturbing. She noted a gap in the legislative frameworks governing the activities of the Welsh and English children’s 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 commissioner’s 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 today’s 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 Children’s Commissioner’s 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 Children’s Commissioner for Wales, and I shall do so, too. My one real point of agreement with the hon. Gentleman was about the deputy commissioner’s 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. Gentleman’s 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 provisions—the Minister has alluded to some of the Assembly’s 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 Children’s 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 Children’s 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 Children’s 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 commitment—by both the previous Administration and the present one—to 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 Children’s 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 original—let me get my nomenclature right—draft 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 Children’s 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 people’s 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 discussions—I 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 Government’s 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 work—they 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, people’s trust in democratic devolution will be corroded, if they constantly see a series of constitutional crises.
3.20 pm
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