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Lord Prys-Davies: As the noble Lord, Lord Roberts of Conwy, pointed out, it is noteworthy that the subsection refers to the making of subordinate legislation but nowhere does it refer to primary legislation. This is in contrast to the Northern Ireland Human Rights Commission, which has the right to propose any measures which it feels ought to be taken to protect the human rights of children. I believe that the noble Lord, Lord Roberts, has raised an important question which deserves sympathetic consideration by the Government.
Lord Williams of Mostyn: I agree that the question is important, but the analysis of the noble Lord, Lord Thomas of Gresford, is correct on two grounds. First, the rubric on Clause 3, at page 2 of the Bill, is:
- "Review of exercise of functions of Assembly and other persons".
- "The Commissioner may review the effect on children to whom this Part applies of--
- (a) the exercise or proposed exercise by the Assembly of any function".
I come back to the analysis of the noble Lord, Lord Thomas. If the Committee agrees, we will put the empowering clause into the Bill on Report. This will empower the commissioner to consider and make representations to the Assembly about any matter affecting the rights or welfare of children in Wales. That would plainly entitle the commissioner to make representations to the Assembly about the effect of primary legislation on Wales. But, of course, the law-making body for primary legislation under the Government of Wales Act remains with this Parliament in Westminster. The noble Lord, Lord Thomas, is absolutely right.
Lord Roberts of Conwy: Perhaps I may ask the noble and learned Lord about his comment on the function of the Assembly--or, rather, the lack of function--in relation to primary legislation. The Assembly does have the function of listening to the Government's legislative programme, which is usually outlined by the Secretary of State; it can also--as clearly has happened
with this Bill--be considered in a plenary session of the Assembly; and it can be considered by a committee of the Assembly. Although the Assembly does not have the power to make primary legislation--that power belongs to Westminster--such a committee could have a considerable input into the process. The protocol relating to the Assembly's proposals for primary legislation is still in draft form; nevertheless, it anticipates involving subject committees of the Assembly in amendments to Bills and so on. So, although there may not be a function so far as primary legislation is concerned, the Assembly has its role in the preparation of primary legislation on occasion, and indeed in amending primary legislation.We are dealing with a particular Welsh Bill at the moment, but clearly the commissioner will have an interest in Bills relating to local government, education and other areas where he has an overview. The commissioner may well express his views through the Assembly and the Assembly may then transmit those views to Ministers and those preparing legislation that will affect the Children's Commissioner's field of supervision and overview. Is not that the case? If it is, why is the Bill so specific in stating that the commissioner's function is limited to subordinate legislation only?
Lord Williams of Mostyn: Because that is the only power that the Assembly has. The answer to the noble Lord's question can be seen if we consider how the sub-paragraph would read were his amendment to be successful; namely,
- "The commissioner may review the effect on children to whom this Part applies of ... the exercise or proposed exercise by the Assembly of any function, including the making or proposed making of",
- "or subordinate legislation".
Lord Roberts of Conwy: The noble and learned Lord realises that I must answer: "But, of course, Westminster has". The commissioner will be dealing with the contents of legislation passed in this Parliament in relation to Wales and as it affects children in Wales. Surely that will be the position.
The obverse of that particular coin is that the commissioner can comment on subordinate legislation--the legislative sphere of the Assembly, which funds and appoints the commissioner--but by using the phrase "subordinate legislation" we appear to be debarring the commissioner from commenting on primary legislation that may well affect him and the children of Wales.
Lord Williams of Mostyn: I return to the analysis by the noble Lord, Lord Thomas: there is no function of the Assembly that can include or comprehend the making of primary legislation. The amendment, were it to be passed, would not be consistent with the Government of Wales Act. However, the amendment
that we have discussed and are bringing forward will entitle the commissioner, if he so wishes, to make representations to the Assembly about the effect on children in Wales of primary legislation.
Lord Roberts of Conwy: I am grateful to the noble and learned Lord for that last sentence in particular. It clarifies the situation and the main point that I sought to make. I am happy to withdraw the amendment, and beg leave to do so.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford moved Amendment No. 9:
- Page 2, leave out lines 37 and 38.
The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 10, 15 and 16.
I knew that things were going along far too cosily between the noble and learned Lord the Attorney-General and myself. At this point I must differ on the primary legislative power of the Assembly. This first Bill relating entirely to Wales gives primary legislative power to the Assembly in the sense that, under proposed new Section 72B(2), the Assembly can amend the primary legislation that is already in place.
This is a Henry VIII provision, but is subject to all kinds of limitations. Under subsection (2) the Assembly may by order (by subsidiary legislation) amend proposed new Section 72B--primary legislation--or proposed new Schedule 2A, which is also primary legislation, in the ways that are set out in the subsection. The same power to amend primary legislation is mirrored in Clause 4(9).
That power having been granted, all kinds of conditions, qualifications and limitations are placed upon it, and are set out in Clause 3(3). In relation to an order adding a person to proposed new Schedule 2A, such amendment can happen only if,
- "some or all of the person's functions are in a field in which the Assembly has functions".
- "The Assembly may not make an order under subsection (2) if the result would be that the Commissioner could review the effect of the exercise or proposed exercise of a person's function in a field in which the Assembly does not have functions".
I am left in something of a quandary in relation to these amendments as we now have the promise of further amendments being brought forward which will change the position drastically. So the limitation in the provision,
- "the person's functions are in a field in which the Assembly has functions",
The purpose of my amendments both to Clause 3 and to Clause 4 is to simplify the limitations placed on the Assembly by subsections (3) to (6) and those placed on it in proposed new subsections (5B) to (5E) in Clause 4. I do not know how far I can press the
amendment at this stage because I have not seen the amendments promised by the Government. I beg to move.
Baroness Farrington of Ribbleton: The noble Lord, Lord Thomas of Gresford, was right when he identified areas of division. However, he did not identify them all. I believe that there is quite a wide division between the noble Lord, Lord Thomas of Gresford, and the noble Lord, Lord Roberts of Conwy, in terms of the role of the Assembly.
My noble and learned friend referred to the fact that, having considered issues raised in another place, we shall bring forward an amendment to the Bill which will empower the commissioner to consider and make representations to the Assembly about any matter affecting the rights or welfare of children in Wales. I hope that when Members of the Committee see the amendment, they will agree that its spirit reflects that requirement. The new function will allow the commissioner to make representations in connection with any person or body, whether or not the Assembly has devolved responsibility for it.
Although the new clause will allow representations to be made about non-devolved issues, we remain of the view that it is appropriate for the Assembly's power in regard to secondary legislation to be exercised unilaterally only in respect of those bodies for which it has a clear responsibility--local government being a case in point. But that does not prevent other bodies being added; it merely means that, quite properly, the Assembly must first consult the Secretary of State when it has only a minority interest. Here again, we have a point upon which there are different opinions in the Committee as regards the state of affairs--or, in the case of the noble Lord, Lord Thomas of Gresford, the desirable state of affairs--in relation to powers conferred on the Assembly.
However, I believe that the noble Lord, Lord Thomas of Gresford, is right to say that he will need to have sight of the amendment that the Government propose. I should be delighted to offer an opportunity for discussions to take place in the light of the noble Lord having had the benefit of seeing proposed government amendments between now and the Report stage.
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