Lord Elis-Thomas: I express my disappointment at the decision not to transfer immediately all responsibility for railways. There are aspects of passenger transport as well as freight transport which will be of interest to the assembly and we shall want to return to the matter. I wish to respond positively to what the Minister said with regard to the Council of the Isles. I thank him for his remarks. I am certain the assembly will want to address that issue. It may not be appropriate to do so in this schedule but at some point during the Bill we may wish to return to the question of the relationship between Northern Ireland and the national assembly for Wales. Both assemblies will have much in common in terms of their functions.
As regards the arrangements for the JNCC and the views of CCW, I welcome what the Minister said. My concern with the probing amendment is that it might undermine the active role of the assembly, and in particular the role of the assembly secretary with responsibility for the environment and his officials who will take over the Welsh Office brief, as it were. It would be a mistake to leave with the Secretary of State some reserve powers in one area. I refer to the active environmental commitment which will have to be part of an assembly whose brief will be to promote sustainable development. I cannot believe that an assembly which will have such a duty placed upon it by statute will do anything to disrupt the positive relationship that has existed between CCW, JNCC and the existing Welsh Office. I am sure that is an undertaking that CCW has given. It is one that I am certain all of us in this Chamber who are concerned about the Welsh environment can support.
Lord Roberts of Conwy: When I introduced Amendment No. 68 I stressed that it was a probing
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amendment. I had hoped that we should be given a fairly full explanation of exactly how the devolution of agriculture would work in practice, but perhaps that was too much to hope for. I hoped also that we should be told precisely how the assembly will relate to Brussels in agricultural matters. I say with all due respect that I do not think the Minister answered the point made by my noble friend Lord Mackay of Ardbrecknish when he asked how it would be possible for an assembly secretary to speak at Brussels in negotiations. It is our understanding that only lead Ministers have ever spoken in such negotiations, as far as we are aware. They, of course, are part of a unitary government whereas that will not be the case with an assembly secretary. However, I shall not press the amendment.
Lord Moran: I express my gratitude to the Minister for his courteous and helpful reply. He is quite right that the Countryside Council for Wales wrote to me yesterday and stated that it would be far better for the national assembly also to have responsibility for the special functions and to share in an ongoing commitment to a common approach to nature conservation. That may be a fine aspiration and it is something that I believe we would all support, but whether it is a satisfactory arrangement with which to go forward I am not certain. I should like to think about it, to study carefully in Hansard what the Minister said in his reply and to consult with others on the question. That said, I shall not press my amendment.
Lord Roberts of Conwy: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 69 to 76 not moved.]
Schedule 2 agreed to.
Lord Williams of Mostyn moved Amendment No. 76A:
("SCHEDULE Transfer etc. of functions: further provisions Part I Functions transferable etc. Existing and future functions
After Schedule 2, insert the following new schedule--
1.--(1) Subject to sub-paragraph (2), an Order in Council under section 22 may make provision about any function of a Minister of the Crown (including a function conferred or imposed after the passing of this Act).
(2) Such an Order in Council may not make provision about any function conferred or imposed by any provision of this Act except--
(a) section 3(4),
(b) section 37(5),
(c) paragraph 16(9) of Schedule (Welsh Administration Ombudsman),
(d) sections 127 to 144, and
(e) Part VII so far as relating to the provisions specified in paragraphs (a) to (d).
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Functions relating to culture or the sea
2. If and to the extent that any function is exercisable by a Minister of the Crown in relation to--
(a) the Welsh language or any other aspect of Welsh culture, or
(b) an area of the sea adjoining either the coast of Wales or an area of sea forming part of Wales,
it shall be regarded for the purposes of section 22 as exercisable by the Minister in relation to Wales.
3.--(1) The power conferred by section 22 to make an Order in Council about a function so far as exercisable by a Minister of the Crown in relation to Wales includes (as well as power to make provision about a function so far as exercisable by a Minister of the Crown in relation to the whole or any part of Wales) power to make provision about a function so far as exercisable by a Minister of the Crown in relation to--
(a) a cross-border body, or
(b) (subject to sub-paragraph (3)), an English border area.
(2) In this Act--
"cross-border body" means any body (including a government department) or undertaker exercising functions, or carrying on activities, in or with respect to Wales (or any part of Wales) and anywhere else, and
"English border area" means a part of England adjoining Wales (but not the whole of England).
(3) An Order in Council under section 22 may only include provision about a function so far as exercisable by a Minister of the Crown in relation to an English border area if--
(a) the function relates to water resources management, water supply, rivers or other watercourses, control of pollution of water resources, sewerage or land drainage, and
(b) the Order in Council makes (or another such Order in Council has made) corresponding provision about the function so far as so exercisable in relation to a part of Wales adjoining England or the whole of Wales.
Part II Continuing role for transferor etc. Community obligations
4. Any power of a Minister of the Crown to make subordinate legislation which has been transferred by an Order in Council under section 22 shall continue to be exercisable by the Minister of the Crown (as it would be had it not been transferred) for the purpose of--
(a) implementing any Community obligation of the United Kingdom, or enabling any such obligation to be implemented, or enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Community Treaties to be exercised, or
(b) dealing with matters arising out of or related to any such obligation or rights or the operation of section 2(1) of the European Communities Act 1972.
Intervention in case of functions relating to water etc.
5.--(1) Where it appears to the Secretary of State that the exercise of a relevant transferred environmental function (or the failure to exercise such a function) in any particular case might have a serious adverse impact on--
(a) water resources,
(b) water supply, or
(c) the quality of water,
in England, he may intervene under this paragraph in that case.
(2) If the Secretary of State intervenes in a case under this paragraph--
(a) he may in that case exercise the function concerned, and
(b) that function shall not in that case be exercisable by the Assembly.
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(3) For the purposes of sub-paragraph (1) a function is a relevant transferred environmental function if it is a function--
(a) under Part I of the Environmental Protection Act 1990, or
(b) under Part II, III or VII of the Water Resources Act 1991,
and it has been transferred to the Assembly by an Order in Council under section 22 which states that this paragraph is to apply in relation to it.
(4) An intervention by the Secretary of State under this paragraph shall be made by giving notice to the Assembly.
(5) The notice--
(a) shall state the reason for the Secretary of State's intervention,
(b) may make provision about the effect of any steps previously taken by the Assembly or any other person, and
(c) may extend the time for the taking of any steps by the Secretary of State or any other person (even if the time for taking them would otherwise have expired before the notice is given).
(6) Where the Secretary of State has made an intervention under this paragraph in a case he shall, in addition to the notice under sub-paragraph (4), give notice to--
(a) any person who has previously been given notice of any steps taken, or proposed to be taken, in the case,
(b) the Environment Agency (if concerned in the case), and
(c) any water undertaker or sewerage undertaker concerned in the case.
Agreement or consultation
6. An Order in Council under section 22 which includes provision--
(a) transferring to the Assembly any function so far as exercisable by a Minister of the Crown in relation to a cross-border body or an English border area, or
(b) directing that any function shall be exercisable by the Assembly in relation to a cross-border body or an English border area concurrently with the Minister of the Crown by whom it is exercisable,
may provide that (either generally or to such extent as may be specified in the Order in Council) the function may be exercised by the Assembly only with the agreement of, or after consultation with, a Minister of the Crown.
7. If an Order in Council under section 22 includes provision transferring to the Assembly the function of determining a formula for the purposes of section 80 of the Local Government and Housing Act 1989 (calculation of Housing Revenue Account subsidy), the Order in Council may provide that the Assembly shall not exercise the function without the agreement of the Secretary of State to the inclusion in the formula of any variable framed (in whatever way) by reference to rent rebates.
8. Where a function is exercisable by a Minister of the Crown only with the agreement of, or after consultation with, another Minister of the Crown--
(a) if an Order in Council under section 22 transfers the function, it shall be exercisable by the Assembly free from that requirement unless the Order in Council provides otherwise, and
(b) if an Order in Council under that section directs that the function shall be exercisable by the Assembly concurrently with the Minister of the Crown by whom it is exercisable, the Order in Council may provide that it shall be exercisable by the Assembly free from that requirement.
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9. References in section 22 and this Schedule to a Minister of the Crown include references to--
(a) two or more Ministers of the Crown acting jointly, and
(b) an officer of a Minister of the Crown or of a government department,
and, in relation to functions of such an officer, the references in section 22(1) and this Schedule to the Assembly include a member of the Assembly's staff.
10. References in sections 22 to 26 and this Schedule to a Minister of the Crown include a member of the Scottish executive.
11. An Order in Council under section 22--
(a) transferring a function exercisable by a Minister of the Crown, or
(b) directing that a function shall be so exercisable only with the agreement of, or after consultation with, the Assembly,
shall not affect the validity of anything done by or in relation to the Minister before the coming into force of the Order in Council.").
The noble Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.