The
Committee consisted of the following
Members:
Chair:
†Albert
Owen
†
Baldwin,
Harriett (West Worcestershire)
(Con)
†
Clwyd,
Ann (Cynon Valley)
(Lab)
†
Crabb,
Stephen (Preseli Pembrokeshire)
(Con)
†
Crouch,
Tracey (Chatham and Aylesford)
(Con)
†
Davies,
Glyn (Montgomeryshire)
(Con)
Efford,
Clive (Eltham) (Lab)
†
Elphicke,
Charlie (Dover)
(Con)
†
Evans,
Graham (Weaver Vale)
(Con)
Grant,
Mrs Helen (Maidstone and The Weald)
(Con)
†
Havard,
Mr Dai (Merthyr Tydfil and Rhymney)
(Lab)
Hilling,
Julie (Bolton West)
(Lab)
†
Jones,
Mr David (Parliamentary Under-Secretary of State for
Wales)
Murphy,
Paul (Torfaen) (Lab)
†
Smith,
Owen (Pontypridd)
(Lab)
†
Tami,
Mark (Alyn and Deeside)
(Lab)
†
Williams,
Hywel (Arfon) (PC)
†
Williams,
Mr Mark (Ceredigion)
(LD)
†
Williams,
Roger (Brecon and Radnorshire)
(LD)
Dr Sarah Thatcher, Committee
Clerk
† attended the
Committee
Third
Delegated Legislation
Committee
Tuesday 23
November
2010
[Albert
Owen
in the
Chair]
Draft
National Assembly for Wales (Legislative Competence) (Amendment of
Schedule 7 to the Government of Wales Act 2006) Order
2010
10.30
am
The
Chair:
Before I call the Minister, it may be helpful if I
remind the Committee that the debate is on the statutory instrument
before us. I am aware of the report by the Select Committee on Welsh
Affairs that may widen the debate slightly, but this is not an
opportunity to discuss the referendum, its merits or the yes or no
argument. There will be ample time in the future to do that and to
discuss the Government of Wales Act. I call the
Minister.
The
Parliamentary Under-Secretary of State for Wales (Mr David
Jones):
I beg to
move,
That
the Committee has considered the draft National Assembly for Wales
(Legislative Competence) (Amendment of Schedule 7 to the Government of
Wales Act 2006) Order
2010.
It
is a huge pleasure to serve under your chairmanship for the first time,
Mr Owen. This is the first of three orders relating to the referendum
on full law-making powers for the Assembly to be considered by the
House. It is perhaps the most technical of the three, and I should like
to explain the rationale for introducing the order before I explain the
changes that it makes to schedule
7.
Schedule
7 to the Government of Wales Act 2006 sets out the subjects on which
the Assembly could pass Assembly Acts if the powers in part 4 of the
Act were brought into force following a yes vote in a referendum on
full law-making powers. The subjects in schedule 7 cover the broad
range of areas over which the Welsh Ministers currently exercise
executive functions, including housing, planning, local government and
the environment. The schedule also lists exceptions and general
restrictions to the Assembly’s legislative competence. Subjects
such as economic policy and social security would remain non-devolved
in the event of the Assembly Act powers coming into
force.
The
Assembly’s current powers to legislate by Assembly Measure are
set out in schedule 5 to the 2006 Act. That schedule lists those powers
as “matters” under 20 “fields”, which
correspond to the subject areas in schedule 7. Matters have been added
to schedule 5 incrementally in recent years by legislative competence
orders and by framework powers in Acts of Parliament. The effect of
that devolution of powers is that the Assembly can now pass
Measures in relatively specific areas in many of the fields listed in
schedule 5. The Assembly’s current powers to legislate are
narrow when compared to the range of subjects that would be devolved in
the event of a yes vote in the referendum. However, some of the
amendments made to schedule 5 enable the Assembly to legislate on
specific issues that go beyond the competence in schedule
7.
The
last order updating schedule 7 was made in 2007, and there is now a
need to update the schedule in advance of the referendum in order to
take account of the powers that the Assembly has accrued in recent
years. There are three main reasons for making the changes proposed in
this order: first, to make clear the full range of powers
that would be devolved to the Assembly in the event of an affirmative
vote; secondly, to ensure that the Assembly would not lose any of its
current powers if the Assembly Act powers came into force; and thirdly,
to ensure that exceptions to the Assembly’s legislative
competence accurately reflect the boundaries of the Welsh devolution
settlement.
Many
of the changes to schedule 7 made by the order insert powers that the
Assembly currently has under schedule 5. For example, it inserts the
new subject of provision of automatic fire suppression systems in
residential premises, to reflect a matter that is included in
schedule 5 and on which the Assembly is currently
considering draft legislation. It also amends subjects and exceptions
in schedule 7 to take account of the Assembly’s current powers
in areas such as waste, learner transport, the protection and
well-being of young adults, and trunk road charging schemes. The order
also inserts a limited number of exceptions to the Assembly’s
competence where they relate very clearly to areas that would remain
non-devolved following a yes vote in the referendum. Finally, the order
makes some minor drafting changes to simplify the schedule, update
references to other legislation and rectify errors in the original
drafting.
The
Government are grateful to the Welsh Affairs Committee for its scrutiny
of the draft order. I am pleased that in its report the Committee
concludes that the Government are right to ensure that schedule 7 is
amended in advance of the referendum on full law-making powers for the
Assembly, and recommends that the House approve the
order.
The
Government have worked closely with the Welsh Assembly Government to
agree the changes. The draft order was approved by the Assembly on 9
November and will be debated in the other place on Thursday. The order
makes sensible changes to schedule 7 in advance of the referendum to
ensure that the schedule accurately reflects the current Welsh
devolution settlement. I commend the order to the
Committee.
10.35
am
Owen
Smith (Pontypridd) (Lab):
It is a great pleasure to serve
under your chairmanship, Mr
Owen.
Despite
its prosaic title, the order is an important milestone on the path of
devolution in Wales. As the Minister said, its approval will
effectively pave the way for the orders that we will debate tomorrow
and that, in turn, will approve the question for, and the
timing of, the referendum that is proposed to take place on
3
March.
Schedule
7 will be the keystone of the new constitutional settlement between
Wales and the rest of the UK, if the vote on 3 March is positive,
because it is the element of the Act that spells out the full range of
subjects over which the Assembly will have full legislative competence
when—as I hope—Wales votes yes in the referendum.
The order is designed to ensure that amended schedule 7 takes
full account of all the changes to the powers of the National Assembly
conferred upon it by various means since the passing of the Government
of Wales Act 2006, thereby ensuring that the people of Wales have a
full understanding of the issue that we will be deciding on 3
March.
If
passed, the powers will allow the Assembly Government to legislate in a
more effective, timely and less expensive manner than has been so to
date across the range of devolved subject areas. The All Wales
Convention concluded recently that the changes would save some
£2 million per annum, money that is currently spent on the
rather cumbersome legislative competence order process. Critically, it
will allow the Welsh Assembly Government to respond more robustly and
rapidly to any changes in circumstance that may require legislative
action, and it should clear up some anomalies to do with the so-called
fields of competences that are currently
devolved.
The
Labour party campaigned for devolution prior to 1997 and, when we came
into office in 1997, we began the process of legislating to introduce
it. In 2010, we will be 100% behind the campaign for a yes vote to
further the progress of
devolution.
At
a time when Wales is feeling the cold wind of the Liberal-Tory
Government— who seem intent on turning a deaf ear to
Wales’s particular circumstances, whatever the blandishments
that we have heard from the Prime Minister in The Western Mail
this morning—we need all the insulation that devolution can
provide for us. The Labour-Plaid coalition will work in Wales to ensure
that we use the full extent of the new powers to provide that
insulation. We will therefore, of course, support the order. However,
before we do so I have a few questions to ask the
Minister.
First,
the Minister has obviously read the report by the Select Committee on
Welsh Affairs. I should like to ask a few questions about some issues
raised in that report. Notably, the failure of the Act as drafted to
fully define the powers of a Minister of the Crown leaves open the
possibility, though ostensibly prohibited in the Act, that the
Assembly might in future legislate to change the powers of a Minister
at Westminster. If true, although it would be difficult and
time-consuming, does not the Minister think that it might be worthwhile
in future to make such clarifications as are apparently done in the
Acts of devolution to Scotland and Northern
Ireland?
Secondly,
and more importantly, what is the Minister’s opinion of the role
of the House, particularly the role of the Welsh Affairs Committee, in
the event of the approval of this order and an affirmative vote on 3
March? The extension of powers that will be triggered by a yes vote,
notwithstanding the implementation of schedule 7, will make it more
likely that the Assembly will look to legislate across the range of its
powers and will, therefore, need to make more frequent requests to the
House for subsequent amendments to schedule 7. Such amendments will
still have to be approved by the House. How does the Minister
anticipate such requests will be handled in future? What volume of
requests does his Department anticipate and what preparations has it
made for those requests?
The
Chair:
Order. May I ask the hon. Gentleman to narrow his
questions to the instrument that we are talking about? I am sure that
the Minister will do just that when he
responds.
Owen
Smith:
I think that my questions are relevant to the
instrument, if I may say so, Mr
Owen.
The
Chair:
Order. If we can just narrow it to the instrument,
not to what the Minister should be doing
generally.
Owen
Smith:
In that case I
will.
The
point of my question is relevant to the order. Clearly, the order will
confer further powers on the Assembly, which is therefore more likely
to make further requests for subsequent amendments to schedule 7. I
suggest that the Minister needs to think about how to prepare for that
and I am sure that he is doing
so.
Lastly,
on the Government’s enthusiasm or otherwise for these steps, in
October the Minister described the purpose of today’s order as a
mere tidying-up exercise. However, his party’s leader in Wales
recently described the passage of the order, and those that we will
debate tomorrow, as an historic moment. I question the attitude of the
Minister’s party to devolution now and whether he and the
Secretary of State will campaign enthusiastically alongside Nick Bourne
when we come to the referendum next
March.
10.41
am
Hywel
Williams (Arfon) (PC):
It is a great pleasure to see you
in the Chair, Mr Owen. I am glad that we have reached this point. This
is an important, historic occasion, although it is strange for me to
find myself agreeing with the Prime Minister. I have long held that the
current arrangements are unsatisfactory. They are certainly not ideal
as far as good governance, convenience and cost are concerned, as we
members of the Welsh Affairs Committee found when considering various
LCOs.
At
this point, Mr Owen, I pay tribute to the work that you and other hon.
Members, including the Minister, carried out when scrutinising matters
for the Committee. I also pay tribute to the way that the National
Assembly has dealt with this rather cumbersome process over a number of
years. On the whole, with a few exceptions, we saw eye to eye on the
LCOs and were able to proceed in consensus, which in that case was the
best way for us to proceed. I look forward to the referendum and the
passing of primary law-making powers to the National Assembly. Indeed,
I have long looked forward to that day throughout my whole political
career.
Schedule
7 is important, because it defines the boundaries of the settlement. It
is particular to Wales and is different from the arrangements in
Northern Ireland and Scotland. In that respect, I tend to agree with
the report of the Welsh Affairs Committee that this is unlikely to be
the last word on the nature of the settlement. As the hon. Member for
Pontypridd mentioned a moment ago, it is likely that changes to
schedule 7 will be attempted. I am sure that the Committee will have a
scrutiny role in that regard.
Without
straying too far away from today’s subject, I wonder about the
Welsh Affairs Committee’s role in scrutinising other matters,
which was its primary purpose before the LCO process was instituted.
Perhaps that is a debate for another
day.
Schedule
7 represents a significant widening of the National Assembly’s
powers. I have one concern that springs from the submission by Emyr
Lewis, a partner in Morgan Cole, a firm of solicitors in Cardiff, which
can be found on pages 14 and 15 of the evidence section of the Welsh
Affairs Committee’s report. He comments on the potential
unintended consequences of narrowing the powers that the Assembly has
already acquired over the years. He is concerned that, as those powers
have become broader than was initially intended, schedule 7 might
unintentionally narrow them. He does not want to see law-making powers
removed as a consequence of schedule 7, and I ask the Minister for
reassurance on that
point.
Emyr
Lewis says, in point
13:
“Schedule
7…excludes broadcasting from subject 3, which contains the power
to make laws about culture. This exception extends, therefore, to the
whole of Schedule 7, so would remove the existing
powers.”
At least, he suggests
that that is possible. I should like the Minister’s reassurance,
because that point has not been taken up by any other bodies that have
been scrutinising schedule 7. In any event, I am glad to say that I
support the
order.
10.45
am
Mr
Jones:
I am grateful to hon. Members for generally
welcoming the order. The hon. Member for Pontypridd made three points,
and having listened to your strictures, Mr Owen, about not straying
from the subject of the debate, I will deal with them, if I may, in
order.
First,
it was suggested that powers of Ministers of the Crown are not defined
or listed anywhere, and that
there should be more clarity as to their extent. The Government will
respond to the Committee’s recommendations in due course. Almost
all functions of Ministers of the Crown are set out in statute, and the
Government believe that simply listing them in one place is not
necessarily helpful, as that would not inform the reader as to which
functions may be affected by legislation made by the
Assembly.
Secondly,
there is the Wales Office’s response to any requests from the
Assembly for further powers. That will, of course, be predicated on the
vote being affirmative. The Wales Office will listen to further
requests as and when—and if—they are made by the Assembly
or the Assembly
Government.
Thirdly,
the hon. Member for Pontypridd asked whether this was simply a
tidying-up process. I made that remark to the Select Committee in
October, and I am glad to say that it concluded that my argument was
reinforced by evidence that it had received, which broadly supported
the draft
order.
The
hon. Member for Arfon made two points on the written evidence given to
the Select Committee by Mr Emyr Lewis, and I think that he
is essentially asking for reassurance. I stress that there is no
suggestion of narrowing any of the Assembly’s powers. We seek to
set out the current status of the devolution settlement, so that
Members of the House of Commons and of the other place, and most
importantly voters, understand what they will be voting for next March.
The draft order has been approved not only by the Wales Office but by
the Welsh Assembly Government, and it has been further approved by the
Assembly. I can also confirm that broadcasting is wholly reserved; the
order proposes no change to the powers in that respect. In the
circumstances, I commend the order to the
Committee.
Question
put and agreed
to.
10.48
am
Committee
rose.