Mr.
David: I thank Members for their positive contributions.
Some good points have been made and I will seek to address
them. I
thank the hon. Member for Clwyd, West for his generally supportive
comments, and for his expert work both in Committee and here today. His
points warrant careful consideration and clear addressing. He raised a
fair point about the explanation of legislative constraints in future
explanatory memorandums. The Government are keen to see as much clarity
and comprehensiveness as possible. I think that we agree that future
explanatory memorandums should set out clearly the legislative
constraints on the competence of the National Assembly for Wales, and I
think that we will see that in
future. With
regard to the scope of orders and the degree to which they will be
sufficiently—or narrowly, as the hon. Gentleman
said—focused, the Government expect legislative competence
orders brought forward by the Welsh Assembly Government to be clearly
defined in scope and to make a clear case for powers. That is
absolutely essential for scrutiny, agreement and implementation, and we
will pursue that. However, in all honesty, this is a relatively new
process and Members need to acknowledge that we are constantly seeking
to improve our processes and procedures. We need to be collectively
self-critical to ensure that we have the best possible laws at the end
of the day—draft Orders in Council, Orders in Council—and
also the best possible scrutiny and deliberation as we
progress.
Mr.
Jones: The concern of the Select Committee was that the
order as originally drafted seemed to contain some wholly unrelated
matters on transport in Wales, which have now been dropped. The
Committee felt that wholly unrelated matters should not be brought into
proposed orders on a defined area—vulnerable children in this
case.
Mr.
David: I believe that the matters that the hon. Gentleman
obliquely refers to regarded school transport, for example. The changes
were essentially technical; I hear the hon. Gentleman clearly. Part of
the process of improving a draft order is ensuring that it is as tight
and as clear as
possible. The
hon. Gentleman had cross-border concerns, and he is right that the
deputy children’s commissioner addressed that matter. However,
it is worth making the point that clearly established protocols are in
place—it is not a question of bringing in the appropriate
protocols afterwards. Many of the standards are carefully
monitored. However, I also make the point that the order
provides for co-operation between devolved and non-devolved agencies in
Wales, and so that co-operation will
increase.
Mr.
Jones: The Minister’s point was recognised by the
deputy children’s commissioner in her evidence; I am sure that
the Minister has seen that evidence. However, she said there
was the potential for the order to make matters worse. She strongly
advised that urgent consideration be given to putting in
place an overarching statutory framework, which would be significantly
better than informal protocols of the sort that the Minister has
referred to. I again urge the Government to give serious consideration
to putting in place those overarching statutory arrangements to address
the concern that is clearly expressed by the Deputy Children’s
Commissioner.
Mr.
David: I am not sure that I am wholly convinced about
that. I take what the Deputy Children’s Commissioner has said. I
am sure that we will study and deliberate on her comments too. We are
not talking about a definitive and unmoving solution, but I would make
the point that the protocols, which have been described as informal,
have more substance than that. They are clearly set out. We will ensure
that those protocols are implemented as effectively as
possible. The
hon. Member for Ceredigion referred to the children’s
commissioner and his responsibility. That is something that will be
covered by future measures of the National Assembly for Wales. He makes
a valid point, but it is something that will be addressed in another
place perhaps at another time. I generally welcome the thrust of the
hon. Gentleman’s comments. Certainly they were supportive as
were those of the hon. Member for Carmarthen, East and Dinefwr which I
welcome too. I should like to spend a little time on the points
that he made. He spoke about joint scrutiny. I have heard a
number of people mention that in the short time that I have held this
post. There is much to be said for it. Can I also say that that the
Government have confirmed their intention to lay orders before
Parliament at the same time as they are laid before the Assembly? That
will certainly facilitate if not joint, at least, parallel
consideration.
As a matter of
principle, logistics always come in here but there is much to be said
for Members of Parliament and Assembly Members working together as far
as is practical. Another point concerned the reasonable chastisement of
children. I do not want to get into the debate about the pros and cons
of that. The issue has been debated in this place many times in the
recent past. There is an issue here not so much of political
disagreement—leaving aside the rights and wrongs of smacking
children—but of legality. The UK Government believe that a
prohibition on smacking would relate primarily to the substantive
criminal law. Criminal justice is not devolved. Therefore it is not
something that could be within the competence of the National Assembly
for Wales. I believe that position has been accepted by the National
Assembly. It is a fact of
law.
Adam
Price: He and I were both at a conference last weekend.
The Counsel General was there. He confirmed that they still have a
different legal interpretation, as far as I am aware. There is no
current intention to bring in a new legislative competency order, but I
certainly did not gain the impression that they had changed their legal
interpretation.
Mr.
David: I am informed that the position is as I have
expressed it. It is important to recognise that we are having a
discussion and a consideration of matters that are before us, not about
those that are not before us. I am sure that debate will take place in
earnest in the future. I should like to touch on the more general point
that the hon. Gentleman made. It is important for us to recognise that
it is not a question of the Government trying to restrict, muzzle or
hold back the Assembly. It is our general belief that devolution is
about partnership. It is my view that there is expertise in the House
of Commons, as there is expertise in the Welsh Assembly. Our job as a
Government is to facilitate the process and to ensure that that
partnership works in practice and that we have clear
legislation.
Nia
Griffith (Llanelli) (Lab): Would my hon. Friend join me in
welcoming how current legislation allows Back Benchers in the Welsh
Assembly to have a realistic chance of bringing forward LCOs, which
contrasts somewhat with the system here? Realistically, the chances of
coming high enough in a ballot to get a private Member’s Bill
through here is less than 1 per cent. Welsh Back Benchers will have
opportunities to bring them forward. Will the Government offer support
in helping see that legislation through
here?
Mr.
David: My hon. Friend makes a good point. Yes, it is the
case that the National Assembly for Wales is
learning as it goes on; it is a young institution—for a young
country. One of the things that has been clearly established in these
early years is the importance of ideas and proposals—or
legislative competence orders—coming from Back Benchers in the
Assembly. During the passage of time and in the not too distant future,
we shall have an opportunity to answer and debate such Back-Bench LCOs
that come
forward. In
a sense, that demonstrates the breadth of the partnership that I and
the Government support so strongly. The Government of Wales Act
certainly provides an effective way forward for democracy in the United
Kingdom, particularly for
Wales.
Adam
Price: As for matters related to fields in
schedule 5, is it not correct that the Assembly can create
criminal offences, provided that there is a limited sanction and as
long as they relate to the field? In the Minister’s
understanding, can that happen as long as there is no more than a six
months custodial sentence, in the same way as a smoking ban, for
instance, was introduced by the Assembly? Is that not the
case?
Mr.
David: As someone who is not a solicitor by training or
background—I hesitate to get into the realms of law and criminal
law—it is important to stress that things are clearly defined
within the parameters of the Government of Wales Act. There is
something in what the hon. Gentleman says. I would not be prescriptive
in saying that his definition is absolutely perfect but, if he wants
further clarification from me on that specific point, I am happy to do
so in writing. However, in general terms, what he has said is
correct. I
wish to conclude by saying that our deliberations this afternoon and
before today’s sitting have been extremely helpful and
constructive. Once again, I pay tribute to the Lords Constitution
Committee, the Welsh Affairs Committee and the National Assembly
committee for a comprehensive scrutiny, which has paid an important
role in shaping the draft order before us today. The draft order is a
good example of devolution in action—in practice—and will
help us to make a real difference to the lives of children and young
people, by enabling the Welsh Assembly Government to deliver the policy
aspirations that it has set
out. Question
put and agreed
to. Resolved, That
the Committee has considered the draft National Assembly for Wales
(Legislative Competence) (Social Welfare and Other Fields) Order
2008. Committee
rose at twenty-seven minutes to Four
o’clock.
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