Session 2010-11
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General Committee Debates
Delegated Legislation Committee Debates

Draft National Assembly for Wales (Legislative Competence) (Amendment
of Schedule 7 to the Government of Wales Act 2006) Order 2010

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

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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

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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.

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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? 

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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. 

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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

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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.