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The noble Lord said: My Lords, the draft National Assembly for Wales (Transfer of Functions) Order 2004 must be made by Order in Council following approval of the draft order by both Houses of Parliament. That is why this short and, I hope, uncontentious order is before the House today. All political parties in the Assembly have agreed policy on these issues.

Turning to the draft order, five functions will be transferred as a result of the approval of the draft order by this House. First, the most significant transfer to be effected by this order is the transfer to the Assembly of those animal health and welfare powers which at present remain with the UK Government.

The case for this transfer has its genesis in the outbreak of foot and mouth disease in 2001 which gave rise to some practical difficulties and public confusion about who was responsible for controlling the disease. This brought into sharp focus the contradiction between the political accountability which the Assembly assumed in this matter for which it did not have legal responsibility.

The order will simplify matters by ensuring that the Assembly has clear legal accountability for all animal health and welfare matters. It will enable the Assembly
 
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to act and make secondary legislation across the range of the Animal Health Act and related provisions, and thus give the Assembly a comparable level of responsibility for subordinate legislation as already exists in Scotland.

Briefly, the order identifies the following general powers for transfer: orders to control animal disease; cleansing and movement of animals; transport of animals, including import and export; slaughter and disposal of animals; licensing of slaughterhouses; prevention and eradication of certain diseases in sheep; control of pests and diseases affecting bees; and imposition of levies and compensation related to diseases in pigs.

We must remind ourselves that disease is no respecter of boundaries. While the proposed transfer provides for greater scope for independent action, I can assure the House that the Assembly is committed to working within the GB-wide disease control area. It recognises that whatever action is taken in Wales needs to fit in with what is happening elsewhere in Great Britain. Indeed, as an example of this commitment, the Assembly has worked tirelessly with the UK Government and the Scottish Executive to produce the animal health and welfare strategy published in June this year.

There are four other functions included in the order. The first will enable the Assembly to set fees payable to local authorities in Wales for local land charges and personal searches. At present these functions lie with my noble and learned friend the Lord Chancellor. For England, the Government have signalled their intention to devolve most of them to individual local authorities. But the Assembly has oversight of Welsh local government. It wishes to see a consistent approach to fee setting across Wales and it is right that we should agree to its request that the fee-setting function be transferred to it in relation to Wales.

The order will also give the Assembly the power to decide whether items of artistic or historical interest in Wales should be accepted under the highly successful acceptance in lieu of inheritance tax scheme. The National Assembly for Wales (Transfer of Functions) Order 1999 gave the Assembly power to allocate such items to museums and galleries in Wales, and it clearly makes sense for the power to accept items which are located or will be displayed in Wales to be exercised in tandem with this. It will also enable the Assembly to make regulations governing the notice periods in Wales for removal of abandoned vehicles by the police.

Finally, the order will correct an anomaly in the Assembly's powers to set threshold levels for water industry inset appointments in Wales. It might help if I explain that inset appointments arise when a relatively large customer exercises its right to purchase water and sewerage services from a company other than the water undertaker for its area.

The Water Industry Act sets the threshold for inset appointments. These are: 250 million litres if the area of the undertaker concerned is wholly or mainly in Wales, and 100 million litres in all other cases.
 
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Under Sections 7 and 158 of the Act, lower figures can be substituted for these thresholds, and both powers have to be exercised at the same time. These powers have been transferred to the Assembly. To encourage greater competition among water suppliers, the Assembly now plans to reduce the Welsh threshold from 250 million litres to the English level of 100 million litres. However, the Section 7 power was transferred in respect of,

"any water or sewerage undertaker whose area is wholly or mainly in Wales",

while that in Section 158 was transferred "in relation to Wales".

The areas of water companies are based on river catchments, so they are not coterminous with the national boundary between England and Wales. So the area over which the Assembly can exercise the two powers needs to be brought into line, and that is the effect of the order.

The Wales Office has worked closely with, and got the complete agreement of, all the relevant departments—Defra, DCA, DCMS and, of course, the Assembly. A debate took place yesterday on this order in the other place and approval was given to it. I commend the order to the House.

Moved, That the draft order laid before the House on 11 October be approved [30th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)

Lord Roberts of Conwy: My Lords, I am sure we are all most grateful to the Minister for his clear and succinct presentation of the order to the House. My criticism is in no way personal; it is of the system which occasions and produces recondite and obscure orders of this kind.

As the noble Lord explained, the order transfers selected powers and functions to the National Assembly from some eight Acts of Parliament and three statutory instruments to complement the veritable plethora of functions already transferred, notably under the 1999 transfer order.

A compendium of the Assembly's powers and functions should now be compiled so that Assembly Ministers and Members—indeed, everyone—know where matters stand. This is essential for good governance, and urgently required in my view. I say this with total confidence because those professional and academic lawyers who have studied the Assembly's functions confess that even they are uncertain and confused over what the Assembly can and cannot do.

Some of your Lordships recently had an opportunity to hear Mr David Lambert, a former civil servant on the legal side in the old Welsh Office for many years and now a research fellow in public law at Cardiff University. He was talking about the problems and uncertainties related to transferred functions. He also spoke of possible solutions for the future.

There is a wide range of views on this issue. My belief is that whatever is proposed, a compendium of existing powers and functions, spelling out exactly what the Assembly can and cannot do, is urgently
 
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needed as a basis for future consideration and a guide for all concerned. I hope that the Government will give it serious consideration.

Four of the Acts referred to in this order and three sets of regulations relate to animal health and welfare and, as the Explanatory Memorandum states, the transferred functions in the order are,

"intended to give the Assembly a level of responsibility for such matters which is equivalent...to that of the Scottish Executive".

The case for a transfer was indeed first brought into sharp focus by the foot and mouth outbreak of 2001. Mr Carwyn Jones, the then countryside Minister in the Assembly Government, said of that devastating episode that,

"the Assembly found it difficult to reconcile the contradiction implicit in having political accountability for matters for which legal responsibility had not been devolved".

Incidentally, I think we would all agree that he conducted himself extremely well in very difficult circumstances, and earned plaudits all round.

How certain can we be that, after this transfer, the Assembly is fully empowered to deal properly with a similar crisis in agriculture in future? It would certainly seem to be now in a position to implement the Welsh element of the country-wide animal health and welfare strategy developed after the outbreak and published in June of this year. But crises seldom replicate past events exactly, and there is an argument for giving the Assembly a general power within primary legislative measures to do anything consistent with the purpose of the measure if the need arises. It is a point that the Government have already taken on board in various Acts, but it requires further thought and attention, with a view to refinement and standardisation.

The change proposed in the order to give the Assembly the function currently belonging to the noble and learned Lord the Lord Chancellor, of setting fees related to local land registers, arises from the proposal to devolve the function to local authorities in England. The proposal appeared in the Government's White Paper of 2001, Strong Local Leadership—Quality Public Services, but, like so much else promised by the Government, that has not yet been implemented. Be that as it may, the proposal in Wales is that the fee setting should be done by the Assembly Government rather than local authorities. The question of why devolution should stop at the Assembly was raised at the Assembly's discussion of this document on 13 July this year. The reply was given that Edwina Hart, the Assembly Government's finance Minister, had decided that there should be national rates in Wales and that local authorities should not be allowed to determine their own fees. I am glad to say that Conservative policy in England is to devolve the function to local authorities, and this is supported, for sound reasons, by the Local Government Association. I cannot see us changing our view on the Welsh scene.

Fees of this kind should reflect the costs to the local authority of recording the information and providing it to interested parties. It is to be hoped that fees will not be exploited and developed into a form of taxation. When the fees are set by the Assembly, I hope that they
 
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will be debated to ensure that they are set at a reasonable level, commensurate with local authority costs.

The change proposed in the order relating to property surrendered in lieu of inheritance tax is technical in that it ensures that the Assembly has power to accept such property—usually of an artistic nature—from the Inland Revenue as well as deciding to which museum or gallery such items should be offered. The current low level of exemption from the tax compared with property prices is a matter of concern, as more and more estates become liable for the tax. The future consequences should be carefully watched.

The order also provides that the Assembly has the role, in dealing with abandoned vehicles, of deciding the length of time involved before a vehicle can be so described and the period allowed for an objection to be registered. That seems eminently sensible. I hope that this particular transfer of function will lead to a burst of activity to eliminate this form of desecration from our waterways, hills and landscapes.

Similarly, the change in the entry in the 1999 transfer of functions order relating to the Water Industry Act 1991 and the removal of an inconsistency in the way that two related powers are exercisable by the Assembly is a desirable step in the right direction. As I understand it, Section 7 of the Act refers to the appointment of water and sewerage undertakers for England and Wales as distinct geographical entities while Section 158 appears to recognise that some of the water and sewerage undertakers operate on a cross-border basis. As the Minister explained, it is a somewhat complex area that clearly has extensive repercussions. I hope that no cross-border problems will arise following our approval of this order today.

In approving the order, we are mindful of the commission report by the noble Lord, Lord Richard, and the emphasis that it places on the need for thorough scrutiny of secondary legislation not only here at Westminster but at the Assembly too. As the Minister said, the order was debated at the Assembly in July and considered by the other place yesterday. Our own Statutory Instruments Committee also considered it and provided useful advice. Personally, I would like to record my thanks to Mr Roger Bonehill, the Government's expert on this order, for his readiness to answer my telephone queries.

Our scrutiny at all levels would be greatly assisted if we had the compendium of Assembly powers and functions to which I referred at the beginning. It might also help us all to identify other possible gaps in the Assembly's functions and take anticipated action. I therefore reiterate my plea that the Government give the matter their urgent consideration.

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