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

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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?
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.
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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Prepared 13 November 2008