Clause
147Power
to impose specific
duties John
Penrose (Weston-super-Mare) (Con): I beg to move amendment
22, in
clause 147, page 108, line 27, at
end insert— ‘(5) Before
regulations are made under this section, there must be laid before both
Houses of
Parliament— (a) draft
regulations, and (b) evidence
that the regulations will enable the better performance by public
authorities of the duty imposed by subsection
(1).’. Amendment
22 is rather similar to amendment 21 on clause 143, which we discussed
earlier, as Committee members can tell from the sequential numbering.
The amendment would ensure that the Government are producing plenty of
proof and evidence about the effectiveness of the public sector
equality duty, both for current consumption and to ensure that we have
an evidence base to see how well the duty is working and whether it can
be made to work more effectively and efficiently in
future. Clause
147 allows a Minister of the Crown to impose additional duties on a
public authority specified in part 1 of schedule 19 for the purposes of
enabling a better performance by the authority of that duty. The
amendment is duplicating the questions that we were asking with
amendment 21 to clause 143. Since the Minister has already given a
fairly full answer to that previous amendment I will not ask her to
repeat it, but I should like her to clarify what she believes is the
scope of the powers that could be required under the clause, where the
edges of those powers would be and what she feels would be the maximum
scope that could be applied and, therefore, the extent of the evidence
that might be required, which I hope that the Government will
produce
in any case, bearing in mind the response that the Minister has already
given to the Committee on amendment 21. I hope that she can
clarify the matter and help
us. The
Solicitor-General: The amendment would have an interesting
effect. Regulations can be made under the clause by the Welsh and
Scottish Ministers, too. I am sure that the hon. Member for
Weston-super-Mare did not mean it, but the amendment would require
Scottish Ministers as well as Welsh Ministers to lay before the
Westminster Parliament any regulations that they intend to make before
imposing specific duties on public bodies. My note drafter has
described that as not showing sufficient respect for the devolution
settlement. 6.30
pm To
get to the point, the power under the clause to impose specific duties
is subject to affirmative procedure in Parliament under clause 195(4)
and (5). Draft regulations will have to be laid before the imposition
of specific duties, and they will be debated. The amendment would add
nothing to that. Evidence will be tested in debate and we are
consulting, as the hon. Gentleman knows, on our proposals for specific
duties, some of which I recited this morning. We have published the
independent research that we commissioned to inform those proposals
and, when we have finished consulting on the plans, backed up by that
research, we will consult again on the draft regulations and also
consult the EHRC since it will have to implement and police everything
that is introduced. The combination of all that consultation, which the
hon. Gentleman is welcome to join, with the affirmative procedure in
Parliament is probably sufficient, and I invite him to withdraw the
amendment, especially as it would have a funny effect on Wales and
Scotland.
John
Penrose: Perish the thought that the amendment would
unintentionally have a funny effect on Wales and Scotland. I thank the
Solicitor-General for her helpful drafting hints and, given what she
said and the remarks she made about the earlier amendment to clause
143, I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
147 ordered to stand part of the
Bill.
Clause
148Power
to impose specific duties: cross-border
authorities Question
proposed, That the clause stand part of the
Bill.
Mr.
Harper: I have some brief questions, one of which caught
my eye mainly because the geographical location of my constituency, the
Forest of Dean, is on the border between England and Wales. I do not
know whether it is relevant, hence my wanting to test it, but I want to
know exactly what is meant by the provision. The clause refers to part
4 of schedule 19, so I looked at the schedule, but there is not yet a
part 4. I presume that it will contain reference to the cross-border
authorities. I was not entirely certain what sort of bodies they
will be.
My constituency
has many issues with public bodies and matters that have been devolved
to the Welsh Assembly Government, but are also exercised in England.
Such functions do not work well across borders: NHS functions, public
transport functions, and in particular concessionary fares.
Furthermore, clashes can occur with different rules in respect of
education, particularly on transport to education facilities, which is
important in a rural
area. I
am not entirely certain whether current cross-border authorities would
be captured by the clause.
John
Penrose: Like my hon. Friend, my constituency shares a
border with Wales, albeit through the middle of the Bristol channel.
Will the Solicitor-General explain, for example, whether an authority
in charge of both constructing and managing a future Severn barrage,
reaching from one side of the Severn to the other, would be included in
that classification of authorities and qualify under the
rules?
Mr.
Harper: My hon. Friend makes a good point. That would be a
classic case of an undertaking that could cost a significant amount of
money, and it would need statutory authority. One part would be in
England and one would be in Wales, so there would have to be a fair bit
of co-operation between the UK Government and the Welsh Assembly
Government. Any legal jurisdiction or body that was created to bring
that about would have a cross-border function. It might well be the
kind of thing envisaged under the
clause. Will
the Minister tell us whether we have any cross-border authorities
already? If we do, could we have some examples? If we do not, what
kinds of things are Ministers talking and thinking about?
Constituencies like mine on the English-Welsh border and those on the
English-Scottish border have specific concerns about any possible
impact. I am thinking particularly about how those authorities would
treat people who live on the other side of the border. I will give just
one example so as not to test the patience of the Committee. My example
relates to the national health
service. I
have a number of constituents who live in England and whose GP is
physically based in Wales, although some are physically based in
England but registered in Wales, so they are regulated under the
jurisdiction of the Welsh Assembly Government. That has consequences
for their access to secondary health care and the screening regimes
undertaken by the health service. Constituents who live and vote in
England, and who ultimately decide on the policies of the UK Government
on the NHS in England, are treated differently from constituents who
live elsewhere in my constituency but whose GPs are not registered in
Wales. Clearly, that has an impact on the public sector equality duty
and the bodies making decisions about how they treat people and whether
decisions should be based on geography—where they live or where
their GP is registered. There are clearly policy implications and that
is why I am trying to get a handle on which kinds of bodies are
affected. If we are talking about bodies that are not necessarily
called “cross-border” but that have some kind of
cross-border impact on the policy functions that they exercise, whether
in health, education or transport, that might bring them into part
4.
Finally, does
being in part 4 and being a cross-border authority make any difference
to how the duties are applied? Again, what I am driving at is: how will
people from different sides of the border be
treated?
The
Solicitor-General: First, on the absence of part 4 of
schedule 19, it will be created under clause 145(6) the first time a
cross-border authority is added to schedule 19. Subordinate
legislation to the Scotland Act 1998 contains a list of Scottish
cross-border bodies, so that they are easily identifiable. They include
British Waterways, the British Wool Marketing Board, the Criminal
Injuries Compensation Authority and its appeals panel, and more.
However, there is not an equivalent list for Welsh cross-border bodies,
so we need to develop a different approach. Not only do we have no
schedule; we have nothing about Wales to put in it right now, but we
are working on
that. The
cross-border authorities are public bodies that have a mixture of
devolved and reserved functions, which operate in more than one nation.
They have to be treated as a separate category of public authority,
distinct from Scottish, Welsh or English bodies. Because they have
devolved as well as reserved functions, we need to say who has the
power to impose specific duties on them. It is intended that that will
be done case by
case.
Mr.
Harper: For the avoidance of doubt, is the
Solicitor-General saying that there are two tests, both with reserved
and devolved elements, operating in the two jurisdictions, and that my
example of an NHS body in Wales may affect constituents who live in
England and Wales, but because it is a wholly devolved power, it would
not be captured by the provision for cross-border authorities? I think
that that is what she
said.
The
Solicitor-General: Inspiration tells me that we should
look at clause 151, which refers to a relevant Welsh authority, whose
functions
“are exercisable
only in or as regards Wales, and...wholly or mainly devolved Welsh
functions” and
a cross-border Welsh authority, which is not one of the above and has
functions that are
exercisable “in
or as regards Wales, and...is a devolved Welsh
function.” That
seems to suggest that being a devolved Welsh function makes something
into a cross-border Welsh authority, if indeed it is cross-border,
because that is presumably a key
requirement.
Mr.
Harper: That is helpful, but not necessarily to the
Minister. Subsection (2)
says: “A
relevant Welsh
authority”— so
that is not a cross-border
authority— “is
a person whose
functions— (a)
are exercisable only in or as regards Wales,
and (b)
are wholly or mainly devolved Welsh
functions.” That
sounds like the NHS bodies in Wales that deal with wholly or mainly
devolved Welsh functions, but it depends on the interpretation of
being “exercisable
only in or as regards
Wales”. Around
6,500 of my constituents are in England and registered with a GP who is
not necessarily in Wales, but may be in England, and if they are part
of a bigger practice they may be registered in Wales. It sounds as
though those functions and their impact are
exercisable
not only in Wales, but stretch across the border into England and affect
a significant number of people. Such a body would not then count as a
Welsh authority but would fall into the definition of a cross-border
Welsh authority because it had a function that was
exercisable “in
or as regards
Wales” and
was devolved. It would not fall into the definition of a Welsh
authority, which would put it in the cross-border category. If my
interpretation is correct, how does the duty apply to a cross-border
authority?
The
Solicitor-General: There is a provision covering Scottish
cross-border authorities, but I shall concentrate on Wales. In
Scotland, the power to impose specific duties is split between the UK
and Scottish Ministers, but Wales, for the reasons that the hon.
Gentleman gave, requires a more nuanced approach to fit the different
devolution settlement. The provision is about who imposes specific
duties, and for some cross-border authorities we will split the power
between UK and Welsh Ministers. That is procedure A. For other bodies
that have only minimal devolved functions or whose administrative
set-up means that it is hard to distinguish between devolved and
reserved functions, UK Ministers will impose specific duties on all
their functions, but they will consult with the Welsh. It is a question
of
degree. The
definition of a “relevant Welsh authority” in clause 151
means that some bodies will have mostly devolved functions, but a few
reserved functions. In such cases, we contend that Welsh Ministers can
impose the specific duties. It is a question of balance and
nuance.
Mr.
Harper: Taking my specific example, if it were decided
that because the NHS body had a significant reach across the border,
and it was therefore a cross-border authority, both Welsh Assembly
Ministers and UK Health Ministers would have an impact. If that is the
interpretation, I am pleased, because I do not seek to undo the
devolution settlement and have UK Ministers telling the Welsh what to
do. But if the Welsh Assembly Government are responsible for a
significant amount of policy with regard to the NHS that affects my
constituents, there needs to be some democratic input into that
process. If UK Ministers have none at all, my constituents will be
being affected by policies of a Government over whom they have no
democratic control at all. What the Minister is saying is therefore
very
helpful. 6.45
pm
The
Solicitor-General: That is what I am saying and I am glad
that the hon. Gentleman is satisfied with it. We think that we have
been both pragmatic and
even-handed. Question
put and agreed
to. Clause
148 accordingly ordered to stand part of the
Bill. Clauses
149 and 150 ordered to stand part of the
Bill.
Clause
151Interpretation
The
Solicitor-General: I beg to move amendment 84, in clause
151, page 111, line 8, after ‘person’,
insert ‘other
than the Assembly Commission’.
This amendment would provide for the
National Assembly for Wales Commission not to be a “relevant
Welsh authority”; accordingly, a Minister of the Crown (not the
Welsh Ministers) would have power to make an order to add the
Commission to Schedule 19 or to impose specific duties on
it.
The
Chairman: With this it will be convenient to discuss
Government amendments 85 and
86.
The
Solicitor-General: The Government amendments ensure that a
Minister of the Crown is the only person able to impose specific duties
on the National Assembly for Wales Commission. That is at the request
of the commission and is consistent with the position for the
equivalent Scottish body—the Scottish Parliamentary Corporate
Body. From a constitutional point of view, it would not be appropriate
for the Scottish or Welsh Ministers to impose specific duties, as
members of the Executive, on parts of the legislature, so those
specific duties can come only from a Minister of the
Crown. Amendment
84 agreed
to. Amendments
made: 85, in clause 151, page 111, line 12, after
‘authority’, insert ‘or the Assembly
Commission’. This
amendment would provide for the National Assembly for Wales Commission
not to be a “relevant cross-border authority”;
accordingly, a Minister of the Crown (not the Welsh Ministers) would
have power to make an order to add the Commission to Schedule 19 or to
impose specific duties on
it. Amendment
86, in clause 151, page 111, line 14, at end
insert— ‘( ) The Assembly
Commission has the same meaning as in the Government of Wales Act
2006.’.—(The
Solicitor-General.) This
amendment would define “the Assembly Commission” in
amendments 84 and 85 as the National Assembly for Wales Commission or
Comisiwn Cynulliad Cenedlaethol
Cymru. Clause
151, as amended, ordered to stand part of the
Bill.
| 
