Session
Publications on the internet
General Committee Debates
Delegated Legislation Committee Debates

Draft National Assembly for Wales (Legislative Competence) (Local Government) Order 2010
Draft National Assembly for Wales (Legislative Competence) (Culture and Other Fields) Order 2010
draft National Assembly for Wales (Legislative Competence) (Education) Order 2010



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

Column number: 3 

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

Column number: 4 
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

Column number: 5 
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. 

Column number: 6 

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. 

Column number: 7 

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.  

Column number: 8 
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

Column number: 9 
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,

Column number: 10 
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

Column number: 11 
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

Column number: 12 
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.  

Column number: 13 
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

Column number: 14 
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

Column number: 15 
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

Column number: 16 
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

Column number: 17 
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

Column number: 18 
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.  


©Parliamentary copyright
Prepared 12:51 on 24th March 2010