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Lord Roberts of Conwy moved Amendment No. 50:
The noble Lord said: If the national assembly is the heart of the Bill, the functions clauses are its arteries. We come to them now in Part II of the Bill. Before I introduce the amendment, perhaps I may draw the Committee's attention, as I did at the start of our first day in Committee, to the substantial amendments tabled by the Government. The Minister was good enough to forewarn us by letter of some of those amendments, and we thank him for doing so. We are as anxious as the Government to have the Bill in the best state possible. If that means dropping a clause or two, and inserting yet another schedule as the Government propose, so be it. But I am sure that the Minister will understand that the more government amendments we have, the more inclined we are to probe, as helpfully and expeditiously as possible, to see whether the changes are right.
Since we tabled our amendments, the Government have published their draft Transfer of Functions (National Assembly for Wales) Order 1999--a helpful and substantial guide which answers some of our questions and poses rather more. It is the first order and represents a trawl through some 300 Acts of Parliament for Secretary of State functions, including powers and duties to be transferred, after consultation, to the
We suggest a limitation in our first two amendments--namely, Amendments Nos. 50 and 51--which would permit only a one-off transfer under the Bill. I believe that there is a real danger of the assembly being overwhelmed by having all sorts of functions thrust upon it. Surely it will have enough to be getting on with when this order comes into effect.
Members of the Committee will have noticed that the transfer of power is all one way; in other words, there is no provision for the transfer of a function back from the assembly to the Secretary of State. Clause 22(4) envisages the possibility of the variation or revocation of an order, but the noble and learned Lord the Solicitor General made it clear on Second Reading that this subsection was to be used in the event of an error occurring and a correction being necessary.
Our amendments to Clause 22 seek to make the transfer of functions possible in either direction. That seems to us to be a reasonable precaution in the interests of good government, should anything go wrong at the assembly in the exercise of any of those functions. It would put the assembly on its mettle to make good use of the powers that it has and, at the same time, perhaps demolish the assumption that the assembly can only increase its powers whatever happens. Our Amendment No. 67, which is a proposed new clause, provides for the Secretary of State to intervene if the assembly fails to discharge a function satisfactorily. However, I believe that my noble friend Lord Mackay of Ardbrecknish will say a little more later about that suggested new clause.
One of our deepest concerns is that functions are to be transferred by order, subject to affirmative resolution by both Chambers. We are all aware that such orders can be disposed of in the other place by an hour and a half's debate and that they are unamendable there. According to Erskine May, Members of this Chamber can propose an affirmative resolution in one of three ways: first, by seeking to negative the Motion--but this, as I understand it, is not general practice nowadays; secondly, by amendment, the effect of which is to withhold agreement to the Motion for approval; or, thirdly, by amendment or separate Motion expressing criticism of the instrument without necessarily challenging it directly.
The long and the short of it is that orders of this kind, and the procedure associated with them, are far from adequate to deal with the substance of what we have before us--that is to say, functions, including powers and duties, culled from 300 Acts of Parliament and transferred to a body that the authors of those Acts probably never even dreamed of. Once the functions have been transferred to the assembly, this Parliament will have no control over the secondary legislation which may flow from it, except in special circumstances noted in Clause 45.
The assembly will have its own scrutiny and approval procedures and, in that context, it is only fair to note the views expressed by the Select Committee on Delegated
I believe that that puts the matter in a nutshell. The committee went on to say that it considered this to be an issue for this Chamber and that its function was to consider the effectiveness of the scrutiny process by the assembly. The Select Committee concluded that it was "suitably rigorous".
Schedule 2 to the Bill lists the 18 policy areas in which powers must be transferred before the assembly begins its work. Clause 22(2) explains the requirement which is,
The purpose of Amendments Nos. 56 and 59 is to remove the requirement that all the policy areas listed in Schedule 2 must be covered willy-nilly, as it were, whatever the results of consultation on the order over a period of nine months may reveal. Why is it necessary that some functions must be transferred from each of those fields by the time that the assembly is established? The answer to that question is not clear.
Clause 22(1)(a) is very widely drawn. It provides for the,
I believe that Members of the Committee will agree that that is a very broad power. Indeed, it could apply to any Minister--for example, the Home Secretary, the Secretary of State for Social Services and even the Chancellor of the Exchequer--and the function could be transferred by order. I am advised that the negative resolution procedure might suffice under the Ministers of the Crown Act 1975. Moreover, tax-raising powers might be transferred, although we have the word of the noble and learned Lord the Solicitor General that that is not the Government's intention. However, the principle that functions transferred should be limited in some way is important and primary legislation should be required for major change.
My noble friend Lord Griffiths of Fforestfach expressed his view most persuasively on Second Reading. Having argued for a clean and clear settlement so that both the assembly in Cardiff and we in Westminster know precisely where we stand, he went on to say that,
We are in exactly the same position of uncertainty. About half the total government expenditure in Wales lies outside the control of the Welsh Secretary of State.
It is possible that the assembly may have its eyes on some of this expenditure and the functions associated with it and that it may argue that it should have responsibility for it. On the other hand, it may not wish to have responsibility for a particular item which the Government are anxious to foist upon it. We are accustomed to hearing local authorities complaining of extra duties being imposed upon them without adequate resources to discharge them. In either case, some form of limitation for function transfers would seem to be advisable. The Government should tell us whether there is any limit to the order-making power for the transfer of functions to the assembly or whether it is open ended and one way, whatever happens, as Clause 22 would lead us to believe.
Finally, perhaps I may comment briefly on Amendments Nos. 65 and 66 which are included in this first group. The simple point behind our amendment is that Parliament, being the order-making body, must give sole approval for a variation or a revocation of its order. It is inconceivable that the assembly would be unaware of an order once it is made or of a defect requiring a change, but that its approval, as well as the approval of Parliament, should be necessary seems superfluous and might lead to conflict. Let us suppose that for some reason the assembly refused to give approval when Parliament had already done so. There would be a cockpit situation. I am sure that the need for dual approval is wrong, and perhaps my noble friends are nearer the mark with their Amendment No. 66 which requires consultation only with the assembly. Surely, it must be a matter of courtesy to inform the assembly. But as to its approval of the revocation or change of an order made by Parliament, that is not necessary. I beg to move.
Page 12, line 37, after ("functions") insert (", and no others,").
"raises the new question of whether it is appropriate that a power granted by the Westminster Parliament but made subject to parliamentary control should be transferred to the Assembly when the power will cease to be subject to parliamentary control".
"for the transfer of such functions in each of the fields specified in Schedule 2 as the Secretary of State considers appropriate".
"transfer to the Assembly of any function so far as exercisable by a Minister of the Crown in relation to Wales".
"the spirit in which we ... approach the issue must be one of trust and encouragement to the assembly, with the result that devolution ... must be seen as a process, not an event ... On the other hand, if for example this Government or a future government were to consider transferring a function such as giving tax-raising powers to the Welsh assembly, that clearly should be the subject of primary legislation. As I read the Bill, I must say I am not clear as to exactly what will happen and how much discretion lies with the Secretary of State or indeed the Government".--[Official Report, 21/4/98; col. 1088.]
2 Jun 1998 : Column 190
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