The
Committee consisted of the following
Members:
Chairman:
Mrs.
Janet Dean
Brady,
Mr. Graham
(Altrincham and Sale, West)
(Con)
David,
Mr. Wayne
(Parliamentary Under-Secretary of State for
Wales)
Davies,
David T.C.
(Monmouth)
(Con)
Dunne,
Mr. Philip
(Ludlow)
(Con)
Havard,
Mr. Dai
(Merthyr Tydfil and Rhymney)
(Lab)
Jones,
Mr. David
(Clwyd, West)
(Con)
Keen,
Alan
(Feltham and Heston)
(Lab/Co-op)
Liddell-Grainger,
Mr. Ian
(Bridgwater)
(Con)
MacShane,
Mr. Denis
(Rotherham)
(Lab)
Moon,
Mrs. Madeleine
(Bridgend)
(Lab)
Morden,
Jessica
(Newport, East)
(Lab)
Tami,
Mark
(Alyn and Deeside)
(Lab)
Twigg,
Derek
(Halton) (Lab)
Williams,
Mrs. Betty
(Conwy)
(Lab)
Williams,
Hywel
(Caernarfon)
(PC)
Williams,
Mr. Roger
(Brecon and Radnorshire)
(LD)
Glen McKee, Committee
Clerk
attended the
Committee
First
Delegated Legislation
Committee
Monday 19
October
2009
[Mrs.
Janet Dean in the
Chair]
Draft National Assembly for Wales (Legislative Competence) (Social Welfare) Order 2009
4.30
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) Order
2009.
The
Chairman: With this it will be convenient to consider the
draft National Assembly for Wales (Legislative Competence) (Exceptions
to Matters) Order
2009.
Mr.
David: It is a pleasure to serve under your
chairpersonship, Mrs. Dean. For simplicity, I shall refer to
the orders as the carers order and the exceptions order respectively.
The contents of the orders were previously set out in a single proposed
order, which was subjected to pre-legislative scrutiny by the Select
Committee on Welsh Affairs, the Constitution Committee in the other
place and a Committee of the National Assembly for Wales. The
Government are, as always, grateful to the Committees for their
wide-ranging and thorough
scrutiny.
Following
comments by the Constitution Committee, the Government and the Welsh
Assembly Government decided to separate the previous order, which
covered both carers and the modest changes being made to exceptions,
into the two draft orders before us today. The orders, taken together,
differ little in content from their unified predecessor. The National
Assembly for Wales approved both orders in June, and they were approved
by the other place in July, shortly before the recess. I welcome the
broad agreement about conferring on the National Assembly for Wales the
powers set out in the draft carers order and making the sensible,
modest changes set out in the draft exceptions
order.
The
draft order on carers forms part of the legislative programme set out
by the First Minister of the Welsh Assembly Government, the right hon.
Rhodri Morgan AM, on 15 July last year. It inserts a single
Matter15.9into field 15 of schedule 5 of the Government
of Wales Act 2006. Field 15 covers social welfare. The competence
conferred by the order will enable the National Assembly to legislate
to support the provision of care by carers and promote their
well-being, in line with the Assembly Governments
carers strategy for Wales action
plan.
The
Welsh Assembly Government intend to introduce an Assembly Measure to
strengthen support for carers, not as an add-on but as something that
goes to the heart of sustainable health and social care services in
Wales. In particular, the Assembly Government envisage three ways that
legislation could improve the lives of carers. First, the Assembly will
be able to ensure that carers can
easily access information to support them in their caring role. That
could include, for example, information on financial benefits and
social services. Secondly, legislation could provide timely and
appropriate support for carers. That could include giving them a right
to appropriate breaks from caring responsibilities. Finally, an
Assembly Measure will ensure that the NHS and social services in Wales
properly engage with carers as partners in the assessment, delivery and
evaluation of
care.
I
am pleased to say that the Welsh Affairs Committee and the Committee of
the Welsh Assembly that scrutinised the proposed order supported the
principles and policy underpinning the approach to carers and
recommended that only technical and definitional changes should be made
to the content and scope of the order. The Welsh Ministers have also
made some minor drafting changes to the
order.
The
draft order also includes a minor technical change to Matter 15.1
dealing with domiciliary care. The Matter enables the Welsh Assembly to
legislate regarding charging for social services covered by a direct
payment arrangement. The Health and Social Care Act 2008 amended the
relevant legislation on direct payments to include a wider range of
payment recipients in situations where an individual lacks the capacity
to agree to and manage a direct payment arrangement themselves. This
change to the Assemblys legislative competence simply reflects
a broadening of Welsh Ministers Executive competence brought
about by the 2008 Act. That is explained further in paragraph 7.14 of
the accompanying explanatory
memorandum.
The
draft order dealing with exceptions changes the way that exceptions
apply to Matters in schedule 5 of the Government of Wales Act 2006. As
a result of this draft order, any exceptions to legislative competence
set out in paragraph 2 of the schedule apply to all Matters in that
schedule. However, there will still be occasions when an exception is
included in the text of a Matter and is thus Matter-specific.
Exceptions are currently listed against specific Matters in tables at
the end of each field in schedule 5. The onus is to ensure that each
Matter has all the relevant exceptions applied to it when it is
inserted into schedule 5, running the risk that an exception might not
be applied to a Matter when it is in fact relevant to it.
The change
will make schedule 5 clearer and easier to understand. It ensures that
exceptions apply in all cases where they are relevant or, to put it
another way, the onus will be to disapply an exception if it should not
be applied to a Matter. This is a modest change, which brings about
further safeguards in the interests of both the UK Government and the
Welsh Assembly Government. Exceptions usually apply to areas of policy
that are non-devolved. Applying these exceptions to all Matters in
schedule 5 means that the Government no longer need to decide whether
each exception should apply to a new Matter.
The Government
are firmly committed to devolving legislative competence to the
National Assembly to enable the Welsh Assembly Government to fulfil
their policy commitments to the people of Wales. That commitment by the
Government is demonstrated once again in the draft orders before us
today. They show
that the process of conferring competence on the Assembly, by means of
legislative competence orders, is working well and being developed and
improved.
I commend the
orders to the Committee.
4.36
pm
Mr.
David Jones (Clwyd, West) (Con): I also welcome you,
Mrs. Dean, to the chairmanship of the
Committee.
The
proposed orders are potentially of some considerable importance. It is
no exaggeration to say that carers are the unsung heroes of our
society. There are an estimated 6 million carers in the United Kingdom
as a whole and each and every one of them fulfils a
valuableindeed, vitalrole.
The
explanatory memorandum to the draft carers order, to adopt the
Ministers terminology, notes that the census 2001 revealed that
at that time Wales had some 341,000 carers, which, at 11.7 per cent. of
the population, is a higher proportion of the population than that of
any region of England. Wales also has the highest proportion of people
with limiting long-term illness, at 23.3 per cent., and a level of
permanent sickness and disability in the economically inactive
population aged 16 to 74, at 9.2 per cent., that is also higher than
that for any region of England.
Therefore, any
proposals that improve the lot of carers in Wales will be welcomed by
the Conservative party and the proposed carers order seeks to do
precisely that. If the Measures that flow from it achieve that end,
they will also be welcomed by my party.
However, there
are one or two points that deserve mention and I hope that both the
Minister and the Welsh Assembly Government will note them. First, it is
a concern to us that the Assembly Government are apparently seeking
primary legislative competence when they have not made full use of the
suite of powers at their disposal under the existing legislation. In
its report on this subject, the Select Committee on Welsh Affairs noted
that the Carers (Equal Opportunities) Act 2004 does not appear to have
been fully utilised by the Assembly Government, to the extent that they
have failed to take advantage of the facility to issue guidelines to
local authorities, which was available to them under the terms of the
2004 Act.
That can be
contrasted with the actions of the Department of Health, which issued
guidelines in 2005, a year after the Act appeared on the statute book.
According to the Departments evidence to the Select Committee,
it believes that the existing legislative framework is sufficient to
deliver its policy objectives.
Hywel
Williams (Caernarfon) (PC): I hope, however, that the hon.
Gentleman will accept the answer that we received in the Welsh Affairs
Committee from Mr. Carter, giving evidence on behalf of the
Welsh Assembly Government. He said that guidance had not been issued in
precisely the same way as it had been in England, but on page 3 of the
evidence, if that helps the hon. Gentleman, he said
that
the
Welsh Assembly Government has issued a specific carers supplement to
our unified assessment process about how to undertake a carers
assessment...I am not sure whether that is actually replicated in
England as part of their single assessment
process.
Some
steps have been taken in Wales; it is not an either/or
situation.
Mr.
Jones: The hon. Gentleman is right, but I draw his
attention to the evidence of Ms Edgar, of the Department of Health, who
said:
Certainly
from the carers strategy, which was published last year, we believe
that the existing...framework is sufficient to deliver this carers
strategy.
It
would be a concern if all the Assembly Government were doing were
simply to accrue primary powers without attempting fully to avail
themselves of the powers already available to them. On the face of it,
that appears to have happened on this
occasion.
Secondly,
the Select Committee noted that there may be significant cross-border
implications if carers, for example, live across the border from the
individual for whom they are caring. The Committee again noted that
there needs to be effective collaboration between authorities on either
side of the border to ensure that the needs of carers are met and
authorities are clear about their respective duties. The Committee
recommended that a joint memorandum be produced by the Welsh Assembly
Government and the Secretary of State for Health when the final draft
of the carers LCO was published, indicating how such cross-border
issues will be dealt with when Measures are brought forward and setting
out their expectations of health bodies on both sides of the
border.
So
far as I can see, no such joint memo has been produced. However, the
explanatory memo to the carers order says that the Welsh Assembly
Government acknowledge that effective cross-border collaboration is
vitally important but believe that how to achieve that
is best decided at Measure stage. That gives some cause for concern. I
am sure that the Minister, who was present at that evidence session of
the Committee, will recall that I raised these points
then.
At
the moment, the practice is for cross-border authorities to co-operate
on the basis of agreed protocols. Such protocols have so far operated
with varying success, but it is a concern that when bodies on either
side of the border are operating under completely different primary
frameworks, it may be considerably more difficult to achieve consensus
and, ultimately, if it goes wrong, that will be to the disbenefit of
carers and the individuals for whom they are
caring.
I
therefore strongly suggest that before the Welsh Assembly Government
produce any draft Measure, they liaise closely with the Department of
Health to ensure that such Measures do not impact adversely on the very
individuals whom they are supposed to benefit. In that regard, the
Wales Office has a potentially extremely important function in
proactively co-ordinating discussions between the Assembly Government
and the Department. I hope that the Minister will in his response
acknowledge that the Wales Office will do
that.
The
second draft orderthe exceptions ordermakes further
amendments to section 94 of the Government of Wales Act 2006,
consequent on the making of the carers LCO. I believe that this is the
second occasion on which this or a similar device has been used. As the
Minister said, it is a sensible way of approaching consequential
amendments, and I have no further observations to make on
it.
I
look forward to hearing what the Minister has to say in response to the
issues that I have raised, but we will not oppose the draft
order.
4.44
pm
Mr.
Roger Williams (Brecon and Radnorshire) (LD): I, too,
welcome you to the Chair, Mrs.
Dean.
We
welcome the order, which will give the Assembly the power to develop
Measures to support the provision of care by carers and to promote the
well-being of carers. Certainly, the effort that carers put into
looking after people with specific needs contributes terrifically to
the quality of life of those people, but the burden that is often
carried by the carer is sometimes to the detriment of their own health
and well-being. Anything that the Assembly can put in place to ensure
that carers are looked after well will certainly be welcome.
If the order
leads to such Measures, we shall welcome it. The proposals were
supported by all parties in the Assembly and I hope that they will be
supported by all parties represented here today. I think that we have
three out of four so far, and after hearing the hon. Member for
Caernarfon, I am sure that I shall not be disappointed.
The greater
number of carers in Wales has been recognised, and it thus makes sense
for the Assembly to be able to exercise further powers in that regard.
The Assembly Government have made clear the case for the new powers.
Carers do an outstanding job, and I know that the Assembly is keen to
find ways to assist them through making support available and promoting
their work. That could include the production of carers strategies,
statutory obligations to consider the needs of carers, and other
opportunities.
Very few
changes have been made to the order that was originally laid, and I
feel that this is the sort of legislative competence order that we
should be passingone that allows for a broad competence with
approaches to be defined later, rather than one that restricts
particular areas. The order will allow for several Measures to be
brought forward to assist the developing care services, and my mind is
directed to how the process should work.
The Select
Committee on Welsh Affairs recommended that a memorandum should be
produced to deal with any cross-border issues that might arise. The
hon. Member for Clwyd, West said that that was an important issue, and
I agree. I am content that the changes to the explanatory memorandum
make it clear that there is a need for cross-border co-operation, and
anything that encourages close co-operation between Westminster
Departments and Welsh Assembly Government Departments is helpful. I
hope that that will carry on as the Measures are brought
forward.
The
Select Committee also specifically recommended making it clear that the
order should not disadvantage those who do not carry out care
routinely, but who might do so through volunteering or as part of an
organisation. Again, I am satisfied that the note on that point in the
explanatory memorandum makes that clear.
The scrutiny
of the LCO has worked well. There was a degree of joint scrutiny
because it went before the Assembly Committee and the Select Committee
at the same time, and was subject to informal consultation. I
understand that there was also a video link-up, which I believe proved
helpful. Working together, where possible, seems to assist in ironing
out minor drafting points. That will not always be possible but, when
it is, the present case serves as a good model.
The point was
made, however, during the Assemblys consideration of the
matter, that although the order is straightforward, non-controversial
and widely supported, dealing with it has still taken a considerable
time. I hope that we can look forward and continue to seek ways to
streamline the process, even if there is no referendum on full
law-making powers in the near future, which I hope there will
be.
I thoroughly
welcome the move that has been made as to exceptions. Anything that
improves the readability of the statute book is helpful, and it makes
sense for exceptions to be grouped
together.
4.49
pm