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Clause 147

Power 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 148

Power 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.
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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 151

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.
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