The
Committee consisted of the following
Members:
Chairs
:
Miss
Anne Begg
, †
Mr.
Martin Caton
†
Ainger,
Nick (Carmarthen, West and South Pembrokeshire)
(Lab)
†
David,
Mr. Wayne (Parliamentary Under-Secretary of State for
Wales)
†
Dunne,
Mr. Philip (Ludlow)
(Con)
†
Flynn,
Paul (Newport, West)
(Lab)
Gray,
Mr. James (North Wiltshire)
(Con)
†
Hollobone,
Mr. Philip (Kettering)
(Con)
†
James,
Mrs. Siân C. (Swansea, East)
(Lab)
†
Jones,
Mr. David (Clwyd, West)
(Con)
†
Llwyd,
Mr. Elfyn (Meirionnydd Nant Conwy)
(PC)
Michael,
Alun (Cardiff, South and Penarth)
(Lab/Co-op)
†
Morden,
Jessica (Newport, East)
(Lab)
†
Morgan,
Julie (Cardiff, North)
(Lab)
†
Tami,
Mark (Alyn and Deeside)
(Lab)
†
Taylor,
Mr. Ian (Esher and Walton)
(Con)
†
Williams,
Mrs. Betty (Conwy)
(Lab)
†
Williams,
Mark (Ceredigion) (LD)
Mark
Oxborough, Committee Clerk
†
attended the Committee
Fifth
Delegated Legislation
Committee
Tuesday 23
March
2010
[Mr.
Martin Caton
in the
Chair]
Draft
National Assembly for Wales (Legislative Competence) (Local Government)
Order
2010
4.30
pm
The
Chair:
Is it the wish of the Committee that the orders be
taken
together?
Hon.
Members:
No.
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) (Local Government) Order
2010.
It
is a pleasure to serve under your chairmanship, Mr.
Caton.
The
legislative competence order seeks to insert 10 new matters
into field 12, the local government field of schedule 5 of the
Government of Wales Act 2006. The LCO was announced on 14 July 2009 by
the then First Minister, the right hon. Rhodri Morgan, AM, as part of
the Welsh Assembly Government’s legislative programme for
2009-10. It will confer competence on the National Assembly to
legislate on the recruitment, retention and remuneration of all local
government councillors and on the structure and role of community
councils, enabling Welsh Ministers to achieve three
outcomes.
First,
the LCO will give the Assembly the ability to legislate to ensure local
government provides relevant information to the public on what it does,
thereby making councils more accountable and promoting public
engagement. Future Measures could introduce requirements on councils
and councillors to provide information to local people on council
activities and the work that councillors carry
out.
Secondly,
the LCO will give the Assembly the power to introduce Measures to
remove the barriers and disincentives to people standing for election
to local authorities, and to improve the skills and capacity of
councillors once elected. For example, legislation could require local
authorities to ensure appropriate training and development for their
elected members. Welsh Ministers also believe that reform of
councillors’ allowances could, similarly, help recruit and
retain a wider range of people as
councillors.
Finally,
the LCO will give the Assembly the power to introduce legislation to
develop and strengthen the role of community councils, so that they are
able to deliver a wider range of services and actions
locally.
The
request for competence arises from the need to respond to issues in
three reviews of aspects of local government in Wales. The Aberystwyth
university report in 2003 comprehensively reviewed the activities of
community councils across Wales. The report indentified
the constraints that community councils believe they faced and set out a
number of proposals for enhancing their role. The Assembly Government
committed to seek legislation addressing the issues identified in the
review.
Secondly,
an expert panel was established by the Assembly Government to consider
any issues that affect the recruitment, retention and development of
councillors in Wales. The report of the panel, “Are we being
served?”, was published for consultation by the Assembly in
2009. Consultation responses are informing the proposals for a future
Assembly
Measure.
Finally,
the Independent Remuneration Panel for Wales is currently looking at
the remuneration structure for councillors in Wales. The panel has
already called for the National Assembly to gain legislative competence
over remuneration. A report by the panel, setting out proposals for
fundamental reform of the remuneration arrangements for councillors in
Wales, is expected next
month.
As
is always the case, the LCO has been subjected to detailed and thorough
scrutiny by the Select Committee on Welsh Affairs, the Constitution
Committee in the other place and a Committee of the Welsh Assembly. I
am very grateful to those Committees for their help and constructive
recommendations.
In
its scrutiny report, the Welsh Affairs Committee expressed concern
about the use of the term “communities” in the LCO. The
Committee is, of course, correct that the term is used in a range of
different contexts, but in the LCO “communities” is
limited in its application to community institutions described in the
Local Government Act 1972, dealing with local government at its most
local level, extending only to community and town councils and
community meetings. That link back to the 1972 Act was important in
ensuring consistency in the use of terminology. The explanatory
memorandum has been amended at paragraph 8.11 to clarify
that.
The
Committee also suggested that the LCO be renamed to give readers a
clearer idea of its nature and focus. After careful consideration, it
has been concluded that the current convention should continue so that
the title of an LCO reflects the names of the most significant fields
under schedule 5 of the 2006 Act to which the matters relate. For this
LCO, local government is therefore the most appropriate. My right hon.
Friend the Secretary of State for Wales has recently written to the
Committee to say that he is happy to consider in the new Parliament
more descriptive titles being included in material published in an LCO,
such as explanatory
memorandums.
The
draft LCO was approved by the National Assembly for Wales on 9
February. I hope that members of the Committee agree that it was
entirely appropriate for the legislative competence in this already
devolved policy area to be transferred to the National Assembly. It
will provide the Assembly with comprehensive competence over local
government in Wales and enable Welsh Ministers to bring forward
legislation to deliver the reforms that they wish to see introduced. I
commend the order to the
Committee.
4.36
pm
Mr.
David Jones (Clwyd, West) (Con):
It is a pleasure to serve
under your chairmanship, Mr. Caton. As we have heard from
the Minister, the primary purpose of the proposed LCO is to confer
competence on the
Assembly to make primary legislation for community councils in Wales.
According to the explanatory memorandum, the Assembly Government wish
to enhance and strengthen the role of community councils and enable
them to deliver a wider range of services and actions locally. To that
extent, we welcome the proposed order. Conservative Members believe
strongly that power should be devolved to the closest level possible to
the citizen. In many cases, it is the community council that is closest
to—and most responsive to—the needs of the citizen. If
the Assembly Government propose to develop the role of community
councils in that regard, we applaud
them.
Others
matters covered by the proposed order are the remuneration of county
and county borough councillors, and the recruitment of candidates to
serve on county, county borough and community councils. I wish to put
two queries to the Minister, which he might like to address in his
closing remarks. Matter 12 will provide the Assembly with competence to
make provision relating to grants by Welsh Ministers to community
councils. At the moment, the bulk of community council income is
provided by the council tax precept. It would be a worry if community
councils were to have to rely exclusively or even primarily on grants
from the Assembly Government and the principle of the council tax
precept were to be undermined or displaced. What assurances can the
hon. Gentleman give the Committee in that
regard?
Matter
12.13 will allow the Assembly to put in place measures to help raise
standards of local government by community councils. As the explanatory
memorandum states, in England that is presently achieved by the quality
parish and town council scheme, which is established on a voluntary
basis. Will the Minister explain why Welsh Ministers have decided not
to pursue the voluntary route, but rather to opt for the statutory
compulsory route? Further than what I have said, I have no observations
on the proposed order save to say that I am grateful to hear that the
Secretary of State intends to consider the naming of LCOs in the next
Parliament. However, I assure the Committee that Conservative Members
propose to relieve him of that
responsibility.
4.38
pm
Mark
Williams (Ceredigion) (LD):
It is a pleasure to serve
under your chairmanship this afternoon, Mr. Caton. I wish to
make a short contribution to what some of us anticipated would be a
marathon sitting this afternoon. It might be less of that than we
thought, but it is good to be able to discuss three areas of policy to
be transferred to the National
Assembly.
The
local government LCO stems from the issues identified in the excellent
2003 Aberystwyth report. I should declare an interest, as it was
written mainly by my election agent, Professor Michael Woods. It is a
laudable report that covered a lot of ground. It established the
principle of giving the Assembly further local government powers
particularly in relation to town and community councils. Were people
interested, they would be surprised that such powers did not already
exist in the National Assembly. Among the issues identified by the
Aberystwyth report were that the conditions on establishing a community
council were too restrictive and that provisions to dissolve a
community council were too lax.
The Welsh
Assembly Government gave a commitment to introduce legislation to deal
with those matters as far back as 2004, so it is good that we finally
have the chance to give them the opportunity to rectify the
matter.
Turning
to the specifics, I reiterate the points made by the Minister. I am
reassured by what the Minister said, but there was real concern in
Select Committee discussions about the use of the word
“communities”, both in the text of the order and during
evidence. Community councils in my constituency cover large rural areas
with several individual communities. There is a need for precise
language, and I am reassured by what the Minister said, in pointing to
the definition used in the legislation to which he alluded.
The
Aberystwyth report was clear in its objective, putting into place
arrangements to develop and strengthen the role of community councils,
enabling them to deliver a wider range of services and actions locally.
My experience of community councils is a mixed picture, but in some
cases there is an impatience to develop local services more
effectively.
Matter
12.9 gives the Assembly competence over the electoral arrangements for
community councils, so that it will determine the number of councillors
who could be returned, and whether community councils should be divided
into wards for electoral purposes. We welcome that power being
transferred and the power, too, in matter 12.10
“to promote or
improve the economic, social or environmental well-being of an
area.”
We
also say yes to the issue of awarding
grants.
I
take the point the hon. Member for Clwyd, West made about the balance
between central Government funding and precept. There are many projects
in my constituency that local authorities and community councils wish
to pursue beyond the remit, given the limitations of the precept. I
certainly applaud the capacity of the Assembly to give direct grants.
The Assembly will also acquire the power to encourage productive
relationships between community councils and principal councils. The
need for those collaborative arrangements does not just mean the
delivery of good services across a broader area, there is, of course, a
regrettable financial imperative on that as
well.
The
hon. Member for Clwyd, West also mentioned training. Again, the Select
Committee referred to the assessment of competence of community
councils. Like the hon. Gentleman, I would be reluctant to take a route
of compulsion for community councillors, but I suspect many of them
would respond positively to an opportunity to develop their skills and
expertise.
Finally,
the issue of transparency in matter 12.14, and wider participation in
proceedings, particularly where vacancies arise, is something that we
discussed in the Select Committee. Where vacancies arise, there should
be compulsion on a community council to publicise them rather than
simply co-opt somebody. We have work to do sometimes to open up our
community councils to the wider population. That is a very welcome
step. It is the next step of devolution, building on local government,
giving it powers and added responsibilities and, I hope, coming from
that, added confidence from the general public. We very much welcome
the
LCO.
4.44
pm
Mr.
David:
I shall respond briefly to the points raised by the
two hon.
Gentlemen.
I
welcome the support of the hon. Member for Ceredigion. It is important
that we focus, as he has done, on the role of community councils. As
the hon. Member for Clwyd, West said, we believe in the principle of
subsidiarity, with a power at the most appropriate level and as close
to the people as we can achieve. There was much focus on and discussion
of communities in the evidence that I gave to the Select Committee. The
1972 definition is firm and precise for the purposes of this
LCO.
The
training of community councillors is also very important. As a former
community councillor myself, I know that the guidance that the
councillors receive—both the initial guidance and the ongoing
guidance—is tremendously important, to ensure that they are able
to fulfil effectively the role of a councillor at a local
level.
The hon.
Member for Clwyd, West asked two questions. First, he asked about
matters 12.11 and 12.13, which are about grants to community councils.
I am assured that the Welsh Assembly Government do not envisage making
any change to the current funding arrangements for community councils.
Those councils primarily receive their income by a precept, which will
continue. However, if the Welsh Assembly Government decided to
introduce a Measure as a consequence of this LCO, they could provide a
grant that would enable additional functions to be administered by
community councils. For example, they could provide resources for
one-off items of expenditure, such as by-elections. That is to be
welcomed.
The second
point that the hon. Gentleman raised concerned collaboration and
accreditation, and whether they should be compulsory or voluntary. I
think that the position of the Welsh Assembly Government is that they
would seek collaboration on a largely voluntary basis, but they would
reserve the power to use compulsory measures if the need
arose.
With
those few comments, I commend the order to the
House.
Question
put and agreed to.
Draft National Assembly for Wales (Legislative
Competence) (Culture and Other Fields) Order
2010
4.47
pm
Mr.
David:
I beg to move,
That the
Committee has considered the draft National Assembly for Wales
(Legislative Competence) (Culture and Other Fields) Order
2010.
The
order was approved by the National Assembly of Wales on 23 February
2010. It will allow the Welsh Assembly Government to fulfil a
commitment in its One Wales programme of government, which is to place
a statutory duty on local authorities to promote culture and encourage
partnership to deliver high quality cultural experiences for their
communities.
The Welsh
Assembly Government’s aim is to widen participation in the full
range of artistic, cultural, sporting and recreational activities.
People’s background, their level of income or where they live
should not be a barrier to their ability to access high quality
cultural experiences.
I recognise
the wide range of cultural services and activities that local
authorities provide and the contribution that such provision makes to
the life of our local communities in Wales. Those services and
activities also contribute to the Welsh Assembly Government’s
agenda for health, community regeneration and education. Recognition of
that contribution is at the heart of the LCO.
The LCO
inserts three matters into part 1 of schedule 5 to the
Government of Wales Act 2006, one in each of three fields: field 2,
ancient monuments and historic buildings; field 3, culture, and field
16, sport and recreation. Each matter relates to the functions of local
authorities in the support, improvement and promotion of the following
matters: matter 2.1 covers the public appreciation of archaeological
remains, ancient monuments, buildings and places of historical or
architectural interest, and historic wrecks; matter 3.1 relates to arts
and crafts, museums and galleries, libraries and historical records,
and cultural activities and projects, and matter 16.4
relates to sport and recreational activities.
The LCO is
narrowly framed, in that it is limited to Welsh local authority
functions in the specified areas. It does not seek to take broader
powers in relation to other aspects of culture in Wales. Having said
that, the approach encompasses a wide range of cultural services and
activities provided by local authorities.
The LCO has
benefited from pre-legislative scrutiny by the Welsh Affairs Committee,
the Lords Constitution Committee in the other place and a committee of
the National Assembly.
I am grateful
for the thorough scrutiny that has been undertaken. Some changes have
been made to the draft LCO since the scrutiny took place. We have
amended the explanatory memorandum in response to a number of the Welsh
Affairs Committee’s recommendations, and we have taken a further
look at the exceptions contained in the LCO. The Select Committee noted
that matter 2.1 in the proposed LCO refers specifically to local
authority functions in the support, improvement and promotion of the
“appreciation by the public” of archaeological remains
and ancient monuments. The
other matters in the LCO, matters 3.1 and 16.4, make no reference to
public appreciation. The Select Committee’s view was that the
rationale for the difference should be set out in the explanatory
memorandum, which has now been done in paragraph
7.10.
The Assembly
Committee also recommended that all the fixed exceptions in the
proposed LCO be removed, taking the view that it is important for the
Assembly to have powers to legislate in the whole area covered by
matters 2.1 and 3.1. The LCO has been revised to remove the specific
exceptions. The UK and Welsh Assembly Governments, having considered
the recommendations carefully, agreed with that view, concluding that
removing the fixed exceptions will give the Assembly appropriate
flexibility and competence over a coherent area.
In
considering the recommendations, we have been mindful of the comments
made by the Welsh Affairs Committee, which said that
LCOs
“should
be drafted with the aims of clarity and
simplicity”
always
being kept in mind, and that excessive use of exceptions risked making
the devolution settlement complex and difficult to understand. The
Government agreed, and following careful consideration of the scope of
matters 3.1 and 16.4, the UK and Welsh Assembly Governments have agreed
to insert only one additional exception relating to the licensing of
the sale and supply of alcohol, provision of entertainment and
late-night refreshment. The phrasing of the exception mirrors the one
contained in subject 12 of part I of schedule 7 to the Government of
Wales Act 2006, and it relates only to matters 3.1 and 16.4.
We also
carefully considered whether the six floating exceptions contained in
the proposed LCO were needed. Three of the general exceptions have been
removed, as they have no effect on the competence to be conferred.
Three floating exceptions, which relate to the matters, remain in the
LCO. They include the public lending right, the classification of films
and video recordings and betting, gaming and
lotteries.
I
would like to reassure Members about the potential impact of the new
cultural statutory duty on local authorities in the current economic
climate. Any proposed Measure introduced as a result of the LCO will be
subject to extensive consultation and a rigorous impact assessment.
They will take into account all issues, especially finance. The
Assembly Government Minister for Heritage, Alun Ffred Jones, has made
it absolutely clear to the National Assembly that that will be the
case.
The Assembly
Government are also mindful of the need to ensure that any statutory
duty will preserve the flexibility of individual local authorities to
determine and meet the needs of their communities. Key stakeholders,
particularly the Welsh Local Government Association and individual
local authorities, will be fully consulted on the use of any new powers
introduced as a result of the
LCO.
I
am sure that hon. Members will agree on the important role that culture
plays in our communities and at a national level, and that the LCO is a
modest but important extension of the Assembly’s
competence.
4.54
pm
Mr.
Jones:
The purpose of the order, as we have heard, is to
provide the Welsh Assembly with legislative competence on ancient
monuments and historic buildings,
culture, sport and recreation. Essentially, it seeks to empower the
Assembly to impose duties on local authorities in connection with the
provision of recreational, sport and cultural activities, as well as
the improvement and promotion of historical buildings. Those are areas
in which, as we have heard, local authorities already have powers. The
policy of the Assembly Government therefore appears to be to seek to
compel local authorities to provide such services rather than simply
encourage them to do so. Indeed, that is made clear by the explanatory
memorandum, which
says:
“Issuing
guidance to local authorities (which the Welsh Assembly Government
could do under existing powers) which is not backed by a statutory
duty, would not achieve the policy aim of the One Wales
commitment”.
The
element of compulsion will, as the Minister has already touched on,
inevitably result in additional cost to local authorities at what is by
any measure a very difficult economic time. Clearly, these will be
matters for Assembly Measures in the fullness of time, and for
consultation. Further to his discussions with the Welsh Assembly
Government, did the Minister glean whether they intend to provide
financial support for local authorities in complying with the new
compulsory regime, or whether the cost of compliance will fall entirely
upon council tax
payers?
Perhaps
the Minister could also assist with a further matter. The explanatory
memorandum indicates that there is a need
“to ensure that
putting culture on a statutory footing does not create a minimum
standard which could have the unwanted impact of lowering provision in
some areas rather than securing improvement.”
Will the Minister
please explain how it is proposed that that should be done? No doubt he
has had discussions about it with the Assembly Government. If standards
are to be prescribed by the Assembly Government, they will of necessity
be minimum standards and the feared consequence might therefore be
realised.
Finally, I
would like the Minister’s assistance on the exceptions set out
in article 3 of the draft order. As he said, those relate to the public
lending right, the classification of films and video recordings, and
betting, gaming and lotteries. The original draft LCO also included
exceptions in respect of broadcasting, Government indemnities for
objects on loan, and payment to HM Revenue and Customs in respect of
property accepted in satisfaction of tax, apart from property in which
there is a Welsh national
interest.
We
have seen in the explanatory memorandum that the Government have
concluded that the three exceptions, which do not appear in the draft
LCO before the Committee, have been removed as they have no substantive
effect on the competence conferred by it. The Minister appeared to be
confirming that he still considers that to be the case, and that the
order in its final form will have no impact on any of the exceptions
that have been deleted from the earlier order. Perhaps he will
reiterate that point in his final
remarks.
4.58
pm
Mr.
Elfyn Llwyd (Meirionnydd Nant Conwy) (PC):
I shall just
make a few remarks, if I may. How will the new powers interrelate with
those that Cadw has as a statutory responsibility? I want to place on
the record my extreme disappointment about the way in which
Cadw seems to operate. About a year ago, I was notified by a constituent
that an ancient path in the upper Conwy valley—a path said to
have been used by Owain Glyndwr and his army—was completely
destroyed by the Forestry Commission when it was cutting timber.
Halfway through the operation, Cadw was notified, and 12 months down
the road I have still to receive a response, so I am absolutely
appalled at the way in which Cadw works. In fact, if it carries on in
that way, there will be nothing for local government to worry about,
because there will be nothing to look after. There is a near-obsession
with Norman castles, to the exclusion of everything else that was in
Wales
previously.
With
regard to the general thrust of the LCO, it is perfectly reasonable and
could be culturally and economically important. However, I accept the
point made by the hon. Member for Clwyd, West that if local authorities
have to comply fully, there will inevitably be a cost, so it would be
helpful if the Minister were to indicate what route would be used to
defray any necessary expenditure in complying with powers—or
duties—imposed on local government. With those few words, I
accept that the order is a helpful step
forward.
4.59
pm
Mark
Williams:
I, too, support the order allowing the Assembly
Government to place a statutory duty on local authorities to provide
certain cultural services. I am pleased that the order is sufficiently
broadly drawn for the Assembly Government to legislate on the
matter.
It
is right that the Assembly Government should have the opportunity to
ensure that a national strategy can be followed. As the explanatory
memorandum rightly points out, culture is not a luxury but an
entitlement. The order will make it easier for the Assembly Government
to ensure that cultural services are provided across Wales wherever
people
live.
I
take the point raised by the hon. Member for Clwyd, West about a
possible levelling down of provision to meet a minimum standard. That
possibility must be acknowledged, but I know that the Assembly
Government are aware of it, and I believe that it is a matter of debate
for them when Measures are produced. I am sure that the Minister will
be held to his word; he talked about the need for consultation between
local authorities and the Local Government Association to reassure
local authorities on their concerns about added cost. The Liberal
Democrats support the
LCO.
5.1
pm
Mr.
David:
Again, I shall try to respond succinctly. I thank
Members for their general support for this modest but important
legislative competence order. To begin in
reverse order, I welcome the support of the hon. Member for Ceredigion.
Like the hon. Member for Clwyd, West, he discussed provisions regarding
standards. It is a difficult definitional area, due to the nature of
culture. The question is how to define culture and what to use as a
hallmark for standards. Inevitably, what we have here is a subjective
evaluation, but what is important is that the Assembly is aware of the
conceptual problem. The matters involved will be addressed carefully in
Measures, and specificity and preciseness will be considered
carefully.
The hon.
Member for Meirionnydd Nant Conwy referred in particular to Cadw. I
listened carefully to what he said. As a historian by training, I
recognise the importance of our cultural heritage and history. Perhaps
we can speak after this meeting and consider what appropriate
representations could be made. He also referred to the cost, as did the
hon. Member for Clwyd, West. Again, that is a matter for the Welsh
Assembly Government to consider at the appropriate stage.
The important
thing to recognise is that we are discussing an LCO, not the Measures
that will follow from it. As I made clear in my opening remarks, the
Welsh Assembly Government Minister responsible for heritage is acutely
aware of the issue, particularly in these difficult economic times.
After consultation has been held with the Local Government Association
and individual authorities, I am sure that there will be a full
discussion of the cost implications of any Measures introduced as a
consequence of the
order.
A
great deal of discussion has gone into the esoteric and complex matter
of exceptions, but I am assured that the alterations made have been
carefully thought through and that full consultation with the Assembly
has been held. Our lawyers have been engaged comprehensively, and we
have definitive advice that what has been suggested will meet the
Assembly’s aspirations and be legally
sound.
Mr.
Jones:
Can the Minister confirm formally that in his view,
the deleted floating exceptions are not affected at all by the order in
its final form? Does that remain his
view?
Mr.
David:
I can confirm that the Government do not believe
that the three exceptions removed from the LCO would have affected the
three matters in the LCO.
The emphasis
in the LCO is very much on establishing a partnership and reinforcing
it with local authorities, and enhancing the powers that they already
have. It is not correct to use the word “compulsion”
negatively, because it is all about providing an incentive to ensure
that there is tangible encouragement to ensure that the best possible
support is given to the enhancement of Wales’s culture and its
enjoyment and appreciation by the people of
Wales.
Question
put and agreed
to.
Draft National Assembly for Wales
(Legislative Competence) (Education) Order
2010
5.5
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) (Education) Order 2010.
This draft
legislative competence order has already been approved by the National
Assembly for Wales. It forms part of the Welsh Assembly
Government’s legislative programme for 2009-10, and complements
the wide-ranging competence already enjoyed by the Assembly in
education. Good governance is at the heart of our schools, and is
central to providing the high-quality education that we want for our
children. It underpins and supports the work that schools do by setting
high standards and targets, and creating an environment conducive to
learning.
The
LCO will allow the Assembly to pass measures to strengthen and improve
the governance of local authority maintained schools. For example, it
will allow the Assembly to legislate to enhance the training and
support available to school governors. It will enable legislation to
bring about improved collaboration and shared good practice. It will
also allow for bodies, such as school companies and other educational
bodies, to be established to provide services to schools and to
exercise education functions on behalf of local authorities. The school
governance model currently in place is more than 20 years old. As
things stand, legislation covering school governance does not have the
flexibility to allow the Assembly Government to respond to the changes
and challenges emerging from the development of policies in
Wales.
The
order inserts three matters into field 5—education and
training—in part 1 of schedule 5 to the Government of Wales Act
2006. Matter 5.2A relates to the conduct and governance of schools
maintained by local authorities. Matter 5.2B relates to securing
collaboration between persons or bodies with functions in relation to
schools maintained by a local authority. Matter 5.2C enables persons or
bodies with functions relating to maintained schools to establish a
body, such as a company, to carry out activities relating to education
and training, which could exercise education functions
on
behalf of
local
authorities.
I
thank the Select Committee on Welsh Affairs for undertaking a diligent
inquiry into the proposed LCO. The order has also benefited from
scrutiny by the Select Committee on the Constitution in the other place
and a Committee of the Welsh Assembly. The Welsh Affairs Committee
considered the scope of the proposed LCO in relation to staffing and
finance, and noted that it could be clearer in that respect. A new
annexe A has been inserted into the explanatory memorandum to explain
what is within the LCO’s scope on staffing and
finance.
The Committee
also recommended that consideration be given to amending matter 5.2A on
staffing and finance. The Welsh Assembly Government carefully
considered that recommendation, but concluded that any amendment to
matter 5.2A was unnecessary and could cause confusion, especially when
compared with the competence conferred by matter 5.12 on further
education. However, the explanatory note to the LCO has been amended to
make it clear that an Assembly Measure made as a result of this LCO
could not, for example, amend the provisions of the document on
schoolteachers’ pay and
conditions.
On
matter 5.2C, the Committee recommended that the wording be reviewed to
ensure that local authority functions, other than education and
training, are not within scope. The matter has been amended to make it
clear that bodies can be established to carry out only education
functions of local authorities in addition to carrying out education
and training activities
generally.
References
to the education functions of a local authority have also been inserted
in anticipation of an order being made under section 162 of the
Education and Inspections Act 2006. That provision enables the
Secretary of State to repeal references to a “local education
authority” and replace them with “local authority”
in England and Wales. The Constitution Committee in the other place
highlighted the need to include in the LCO a transitory reference to
such an
order.
The
LCO has been improved as a result of pre-legislative scrutiny and
complements the Assembly’s existing legislative competence in
education. On that basis, I commend the order to the
Committee.
5.10
pm
Mr.
Jones:
As we have heard, the purpose of the proposed LCO
is to confer on the Welsh Assembly additional legislative competence in
education, primarily relating to the governance of maintained schools.
The Assembly already has extensive competence in education, but the
proposed LCO would extend that competence further to relate to the
governance of maintained schools in
Wales.
The
role of the governing body in maintained schools is of course crucial.
The explanatory memorandum tells us that studies of school governance
have been commissioned by the Assembly Government and have concluded
that
“the
effectiveness of governing bodies varies and the training available to
governors is uneven, with weaknesses in consistency of approach,
availability and take-up by
governors.”
The
three matters proposed to be inserted in field 5 of part 1 of schedule
5 to the Government of Wales Act would provide the Assembly with
competence to legislate on the conduct and governance of maintained
schools.
I
wish to raise a few issues that I hope the Minister will address in his
closing remarks. First, I am concerned that the Assembly could,
pursuant to the powers proposed to be devolved, pass legislation on not
only the creation of bodies responsible for school governance, but
their abolition. Does that mean that, pursuant to that power, boards of
governors could be abolished altogether? It is clear from the
explanatory memorandum that the merger of governing bodies of different
schools is already contemplated. However, as I have said, the role of
governors is crucial to public accountability, and it would be
extremely worrying if that accountability were to be removed or damaged
by the abolition of governing
bodies.
Secondly,
the explanatory memorandum makes it clear that changes to school
finance and staffing are not within the competence proposed to be
conferred by the LCO. The memorandum
states:
“If
new models for governance arrangements were created as a result of the
LCO, there would be some linked changes to the
persons or bodies exercising functions relating to staffing and finance,
but the LCO does not confer competence to change the substantive nature
of those
functions.”
With
respect, is that not a weakness of the proposed order? If new
governance arrangements are created, will the Assembly not need the
flexibility to deal with the consequent necessary changes in staffing
and
finance?
Thirdly,
matter 5.2C confers competence on the Assembly to create new bodies for
carrying out activities relating to education or training and
exercising education functions on behalf of local authorities. That is
a very wide power. Although the explanatory memorandum gives a fairly
narrow example of what the Assembly might do pursuant to that
power—creating the educational body to provide services to
schools and further education institutions—the power is
manifestly much broader in its scope and contemplation. Is the Minister
able to give other examples of actions that might be available to the
Assembly under the terms of that matter and that, to his knowledge, are
contemplated by the Assembly Government? I have nothing further to add,
and look forward to the Minister’s
response.
5.14
pm
Mark
Williams:
I should first declare an interest as a former
school governor and as a current member of the NASUWT. The LCO has two
fundamental roles, which I very much welcome. The first is the
encouragement of the principle of collaboration in the maintained
schools sector and actions in the direction of training. The Minister
was right to draw in his opening remarks on the importance of the link
between raising school standards and a successful governing body.
Governing bodies set the direction of the school, and are responsible
for evaluating facets of a school’s development plan. The order
is about reaffirming accountability in emerging—that was the
word the Minister used—new structures. It is about building
meaningful relationships between primary, secondary and further
education sectors, which should mean greater collaboration and possibly
federation.
For example,
if secondary schools are to develop sixth forms across or between
schools, we need governance arrangements to accompany that. To avoid
primary school closures, measures could be introduced to create
federations of schools with one governing body, potentially saving
money and keeping open village schools that otherwise might close. That
is to be welcomed and is why the Assembly should have the power and
flexibility to respond.
Mr.
Jones:
I am glad that the hon. Gentleman shares my view of
the importance of governing bodies. Does he share my concern that the
competence conferred by the order could potentially empower the
Assembly to abolish governing bodies?
Mark
Williams:
I am grateful to the hon. Gentleman for that
comment. It might be playing with words, but if we are to create a new
structure and federation of schools, surely that would involve the
abolition of the existing structures in order to build something new.
Obviously we must move forward on that point with some sensitivity. The
key point is about responding to
some of the emerging new challenges of education as we know it at the
moment. Much of that debate is resource-driven, and that is a
discussion that we will no doubt have over the coming weeks. It is
about providing new structures to accompany the drive for higher
standards in education.
Another
useful reason for the LCO is to ensure that school councils in
secondary schools provide places for young people in years 11, 12 and
13 to be associate pupil governors. Last week, the Children’s
Commissioner for Wales, Keith Towler, attended the all-party group for
children in Wales, which is organised admirably by the hon. Member for
Cardiff, North. He told us at that meeting that excellent work has been
undertaken into young people’s engagement in their own learning
experience. Through this LCO, the Assembly Government will be able to
pursue that matter more formally in a Measure.
There was one
potential area of controversy: the confusion over financial matters
that governors may consider and could be in the remit of a Measure, and
teachers’ pay and conditions, which are not within that remit.
The Welsh Affairs Committee recommended amending matter 5.2A, so that
it is clear about the exclusion of teachers’ pay and conditions,
and the inclusion of those funding and staffing matters that are the
normal function of governors. The Assembly did not take that view, but
as the Minister acknowledged, it has at least amended the explanatory
memorandum clarifying the matter.
This is not a
complicated issue, but we should make it clear that at present,
teachers’ pay and conditions in the broadest sense are not a
matter for the Assembly. However, the governors, for instance, or the
finance committee of a governing body should be able to discuss giving
a member of staff an extra responsibility point on a pay spine to
develop an area of the curriculum. That is the responsibility of
governors, and should be.
The other
important issue is governor training, and there has been a perception,
backed up by Assembly Government research, that expertise is patchy and
training opportunities mixed. In my experience, the take-up of courses
is patchy, and although the Assembly Government have not talked in
terms of compulsion, they have mentioned the need for increased support
and possibly even future accreditation, something of which England has
experience. This is a laudable request—I do not like the word
request, as this should be something that rests in the National
Assembly as a right. It is about providing the structures that respond
to some of the challenges of education. Collaboration between schools
has long been a feature of education and through clustering
arrangements we are now giving schools the opportunity to formalise
that.
This is the
last LCO today, and as a devolutionist I believe that all requests for
such powers should be applauded. There should always be an assumption
in favour of an LCO, rather than against
it.
5.20
pm
Mr.
David:
I thank the two hon. Gentlemen for their
contributions. They have been positive and helpful and very much in the
spirit of our deliberations this afternoon. The hon. Member for
Ceredigion recognises the importance of training and school councils
and greater collaboration. These are all important issues and I think
that the
processes we are talking about would be facilitated by the LCO. The hon.
Member for Clwyd, West gave general support to the LCO and I welcome
that. He asked a number of specific questions and I will do my best to
answer each in
turn.
First,
on the possible abolition of governing bodies, it is true to say that
the answer would be yes: the LCO permits a Measure to do this. The
explanatory memorandum refers to that to make clear the breadth of the
competence, but it is important to stress that the Welsh Assembly
Government have no plans to do this. Last summer’s Assembly
report on governors showed the importance of the governing bodies, and
the Assembly Government would wish to continue with the ethos contained
in that
document.
Secondly,
on finance and staffing it is important to recognise that the
allocation of staffing functions for which governing bodies are already
responsible, such as the appointment and dismissal of staff, could be
included in any future provisions for a Measure, but no changes could
be made to the substantive law in relation to staffing. For example,
the Assembly could legislate to replace responsibility for all staffing
matters with local education authorities, so that governing bodies no
longer had a role in those functions. There is obviously a financial
implication
there.
The
law relating to the staffing of schools, such as a teacher work load
agreement and issues relating to schoolteachers’ pay and
conditions of service, which are non-devolved, are outside the scope of
the LCO and the Welsh Assembly Government have no intention of seeking
to alter that arrangement. There is a clear differentiation there. On
education and training, we are in danger of
treading into the issue of what Measures may come forward as a
consequence of this LCO, but it is important to recognise that the
Assembly is doing a lot of proactive work in that area. For example,
14-19 Learning Pathways is an exemplary initiative, which has taken
forward the agenda positively. In that context, we have to appreciate
the work of this
LCO.
Mark
Williams:
With that in mind, the Minister will appreciate
that in some rural areas there is a particular difficulty in developing
14-19 Learning Pathways, which is necessitating that collaboration
between different high schools and further education colleges. The LCO
is very much a response to those practical situations on the ground,
but provides the governance, and therefore the accountability, to make
those arrangements work.
Mr.
David:
The hon. Gentleman is correct. We all recognise the
importance of collaboration in education. Before the Committee, a
number of us were at a reception for two higher education
establishments that were engaged in collaboration. Collaboration in
education generally is desirable and is very much the order of the day;
but of course, there cannot be one formula everywhere irrespective of
the geography and the circumstances. That is an important point to bear
in mind and the LCO recognises the educational realities of where we
are.
With those
few remarks I commend the LCO to the
Committee.
Question
put and agreed
to.
5.24
pm
Committee
rose.