The Parliamentary Under-Secretary of State for Wales (Mr. Wayne David): I beg to move,

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 Matter—15.9—into 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 Government’s 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 Assembly’s 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.

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 valuable—indeed, vital—role.

The explanatory memorandum to the draft carers order, to adopt the Minister’s 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 Department’s 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

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:

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 order—the exceptions order—makes 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.

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 passing—one 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 Assembly’s 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.