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Baroness Farrington of Ribbleton: I start at a disadvantage, playing neither golf nor rugby.
As the noble Lord, Lord Roberts of Conwy, said, I commented on this issue in a letter. It is important for me to make absolutely clear for the record that the statement that the commissioner is not authorised to inquire into or report on the outcome of court or tribunal proceedings is already enshrined in Section 77(1) of Part V of the Care Standards Act. This Bill does not introduce any new provision in that respect.
The principle underpinning the existing provision is that courts and tribunals determine specific issues before them and it would not be appropriate for the commissioner to try and re-open their determinations. The proper mechanism for that is judicial appeal. We all agree that that is the due process of law.
However, as I explained in my letter, matters determined by a court or tribunal may be narrow in a specific case and issues that may be discussed or featured in court and tribunal proceedings do not necessarily form part of the matter that is determined. The experience of Members of the Committee will enable them to recognise that. But the commissioner would be perfectly justified to look into issues related to a specific case, such as the actions of an education authority or the functions and actions of a social services department.
The commissioner will be able to make representations, with the benefit of the eagerly awaited amendment, on the basis of his observations, his knowledge, his experience and his information; or he may make such representations following
representations made to him, or a combination of both. However, that would not be a re-opening of the justification of either the process of law or the result that was determined by that process; nor could it at any stage intervene, say, between the result of a specific court decision and a process of appeal.I hope that makes the position clear. We do not want to see the role of the commissioner inhibited in any way. Nor do we want the role of the commissioner to allow, however inadvertently, delay or damage to the due legal process.
Lord Roberts of Conwy: I am grateful to the noble Baroness for her clear explanation of the situation. We have heard a great deal about what the commissioner cannot do. Now we are beginning to hear a little more about what he can do, certainly on this aspect. I for one am clearer in my mind as to the extent of his freedom to comment, receive and present representations in respect of his or someone else's experience of what has happened to them in courts or tribunals in so far as a general problem--perhaps relating to health or social services--arises from such cases. I am somewhat reassured by the words of the noble Baroness and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford moved Amendment No. 20:
- After Clause 5, insert the following new clause--
The noble Lord said: Amendment No. 20 arose in this way. I wrote to the noble Baroness, Lady Farrington, on 21st February and said that I had hoped that a convention would grow that where the will of the National Assembly for Wales had been expressed, then the Westminster Parliament would put the primary legislation into effect unless there was a good and stated reason to the contrary. In the absence of such a convention I could see the possibility in the future that if there were different colours of government in Cardiff and in Westminster, considerable conflict could arise. Normally the will of the National Assembly should be conveyed into primary legislation.
That was one of the matters about which I was concerned. The noble Baroness, Lady Farrington, was good enough to reply to me on a number of matters, but in particular she said,
The third strand which led to this amendment was the fact that, as I pointed out earlier today, within this Bill there are already two limited Henry VIII clauses which empower the National Assembly to alter primary legislation by adding other people to Schedule 2A or Schedule 2B.
It seems to me, putting all these matters together and bearing in mind that responsibility for primary legislation is firmly at Westminster, that it would nevertheless be a matter of great utility if Bills which concern Wales contained a power enabling the National Assembly to make minor alterations without having to queue up for primary legislative time at Westminster.
If one looks at the general power to make regulations, which is the purpose of this amendment, the Bill would provide that,
That is not a general power for the National Assembly to alter primary legislation. It is limited in two ways: first, the Assembly can act only intra vires if it passes secondary legislation to alter the primary legislation for the purpose of carrying into effect the purposes of Part V of the Act; and, secondly, it has to be subject to the consent of the Secretary of State; that is to say, it has to negotiate with the government of the day, of whatever colour they may be, and that government will have to agree before the kind of minor amendments that I have in mind can be brought about.
It may be that after a number of years of activity the Children's Commissioner could find that he lacks a particular power; that his remit does not run as wide as he wished that it did or as everybody thought that it did when this legislation was first enacted. Therefore, without having to come to Westminster to bid for the parliamentary time, the National Assembly could make the minor alterations with the consent of the government of the day. Westminster time would not be used up and there would be power in the National Assembly--the democratically elected body--to pass such legislation. In my respectful submission--if I may use those words--to have within each Bill or part of each Bill that is devoted to Wales such a power for the Assembly to tweak the legislation would be to the utility of the devolution settlement. I beg to move.
Lord Elis-Thomas: I couple with my warm support for this amendment an apology for not being present to hear the trailing of the amendment for the Report stage. I was taking part in the first part of the sitting in Cardiff this afternoon. I welcome what I believe has been trailed as an indication that the Government are moving towards the view expressed by a committee of the Assembly.
The principle that the noble Lord, Lord Thomas of Gresford, has ably put forward is one that the overwhelming majority, if not all, in the National Assembly would endorse; namely, that in an area where the Assembly discovers that it may require to strengthen its powers of subordinate legislation, and where that may require changes to primary legislation, it should be able to do so without becoming part of a parliamentary log-jam.
I strongly support the need to establish a convention in the new context of devolution, as mentioned by the noble Lord, Lord Thomas. I do not believe that the National Assembly is in an analogous position to that of a Minister of the UK Government in looking for slots in the parliamentary timetable. The relationship between the UK Government, who are the body that make primary legislation for devolved matters in Wales, and the National Assembly, which is a democratic body, is slightly different. Therefore, it is important that the Government recognise that and when the constitutional committee of this House deliberates on this and other issues, particularly the relationship between devolved bodies and the UK Parliament, that issue may be considered. In the meantime, there is much merit in the amendment.
Baroness Walmsley: I support the amendment to which I have put my name. It is an eminently sensible measure that will oil the wheels of the relationship between this Parliament and the Welsh Assembly. The Welsh Assembly is, as yet, a young body and as it matures it may find that it requires additional measures for which parliamentary time cannot easily be found. This sensible amendment would oil the wheels and would allow the Assembly to have such powers.
Lord Williams of Mostyn: I am grateful for the way in which the noble Lord, Lord Thomas of Gresford, has set out these matters and for the generous remarks of the noble Lord, Lord Elis-Thomas. The amendment to which he referred has been welcomed generally. As we discussed earlier in the absence of the noble Lord, Lord Elis-Thomas, plainly the constitutional committee will have to focus on these matters because this is an evolving situation, as my noble friend Lord Prys-Davies said. The increasing authority--I almost said "dominance"--of the committee chaired by the noble Lord, Lord Alexander of Weedon, is an example of how things change even in an apparently changeless institution such as we all inhabit.
The consequence of the amendment would be unintended. At the moment, under Part V as it exists and under the present drafting of the Bill, the Assembly will be given specific powers to make subordinate legislation where it is required to flesh out the framework provided in the primary legislation, so there is no difficulty there. However, each power to make regulations or orders has been designed
If it were prudent to do that at this time that would not be an argument against it; at least it would not be a "knock-out" argument. However, it would mean giving the Secretary of State power of approval of Assembly secondary legislation. Of course, power of approval means power of veto. The Bill contains such a provision in relation to bodies that are not wholly devolved, which one can understand, but the amendment, as drafted, would give the Secretary of State the override in matters that are wholly devolved, so it would not be consistent with the constitutional settlement. I understand what is wanted but I do not believe that this is the way to achieve it.
"POWER TO MAKE ORDERS OR REGULATIONS
After section 77 of the Care Standards Act 2000 (c. 14) (restrictions) insert--
"77A General power to make regulations
The Assembly shall, subject to the consent of the Secretary of State, have power to make such orders or regulations as the Assembly thinks fit to make for the purpose of carrying into effect the purposes of Part V of this Act.""
"The Government is committed to giving full and fair consideration to all Assembly bids for primary legislation. The Assembly's bids are considered alongside those of UK Government departments, all of which compete for Parliamentary time".
We all know that there is a competition for parliamentary time. But when are the wishes of the National Assembly for Wales going to be considered?
"The Assembly shall, subject to the consent of the Secretary of State"--
I shall return to that point--
"have power to make such orders or regulations as the Assembly thinks fit to make for the purpose of carrying into effect the purposes of Part V of this Act".
7.15 p.m.
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