Previous Section Back to Table of Contents Lords Hansard Home Page

The noble Earl said: My Lords, in Grand Committee we had a useful, although ultimately inconclusive, debate on Clause 17. The concerns which I raised at that time were related not so much to the principle of allowing the Welsh Assembly the power to formulate their own NHS redress scheme for Wales as to the constitutional propriety of devolving powers from Westminster in this manner; and the lack of clarity on the precise scope of the powers that are defined here. My starting point was the report published by your Lordships' Delegated Powers and Regulatory Reform Committee, which stated:

I remarked previously that that is a very strong and unequivocal statement.

The answer given by the Minister—a point also made, very eloquently, by the noble Lord, Lord Rowlands—was that your Lordships' committee had not compared like with like. The Minister stated that Clause 17 does not seek to transfer powers to Welsh Ministers; rather it seeks to transfer powers to the Welsh Assembly as a whole. The Welsh Assembly, as a democratically elected legislature, has extensive procedures for dealing with secondary legislation—procedures fuller and more rigorous than those that apply to secondary legislation at Westminster.

I take that point. I also accept that framework powers of this general type were given the enthusiastic backing of the Richard commission as well as of the
 
15 Feb 2006 : Column 1211
 
Assembly. These are no longer points of contention between us. The Minister also clarified in Grand Committee that this framework power is not in any way dependent on the reforms in the Government of Wales Bill, currently being debated in another place. The meeting that I had with her and her honourable colleague Mr Ainger did much to flesh out that issue, along with others. I thank them both for the helpful briefing that they jointly provided.

Having said all that, I wish to focus on one further aspect of this matter. We have been asked to accept the reassurance that it will be the Welsh Assembly, rather than Welsh Ministers, who will be in a position to exercise the framework power in Clause 17; and the further reassurance that the granting of framework powers to the Assembly is independent of the reforms proposed in the Government of Wales Bill. Yet page 4 of the Explanatory Notes to the Government of Wales Bill states:

That concerns me. On the face of it, while it may be true that the framework power in Clause 17 is, strictly speaking, independent of the reforms in the Government of Wales Bill, that Bill would seem to have the potential to bring about the very situation envisaged by the committee chaired by the noble Lord, Lord Dahrendorf, when it voiced its criticism of this clause; namely the exercise by Assembly Ministers of inappropriately wide powers. The clause does not bring that about but, in combination with the Government of Wales Bill, it appears to be able to.

I do not for a minute doubt the good faith of Ministers. Nevertheless, we need to have it squarely on the record that there is no question of the provisions of the Government of Wales Bill being used by the Assembly to confer broad framework powers on the Executive. Clause 17(4)(c) is the immediate safeguard against that happening; in layman's language, this provision amounts to a bar on sub-delegating. But we understand from the letter sent by the noble Lord, Lord Warner, to the noble Lord, Lord Dahrendorf, that, under the Government of Wales Bill, framework powers such as this will be converted into so-called measure-making powers. Therefore, the bar on sub-delegation will fall away. Where does that leave us then?

I should therefore be grateful if the Minister could reassure me—I know that she wishes to—about the way in which the powers being granted in this clause may ultimately be used and by whom. Notwithstanding anything contained in the Government of Wales Bill, I should like to hear her say that these broad powers will reside, and continue to reside, with the Welsh Assembly and that any powers to make subordinate legislation which the Welsh Assembly may in the future choose to grant to Welsh Ministers will be, and necessarily must be, on exactly the same footing as the power vested in English Ministers to make subordinate legislation; in other
 
15 Feb 2006 : Column 1212
 
words, a power to lay secondary legislation that is specific and explicit in the way with which we are all familiar.

I hope that she can give me that reassurance and that she will also understand why I have felt it right to labour these issues somewhat. I say again that I am in no way arguing against further devolution to Wales. I am simply seeking clarification of the extent of that devolution as embodied in the clause and an ambiguous explanation of where the powers granted in the clause are eventually to reside. I beg to move.

Baroness Royall of Blaisdon: My Lords, I am grateful to the noble Earl for his understanding and for his wish for further clarification of the powers being vested in the National Assembly for Wales. I trust that I can give him the necessary reassurance.

The Government of Wales Bill provides for the conversion of "framework powers", as mentioned by the noble Earl, into enhanced legislative competence, which in this case would enable the Assembly to legislate by measure in relation to NHS redress in Wales. The conversion process is scheduled to take place around the time other provisions in the Government of Wales Bill, which replace the current Assembly with a separate executive and legislature, are implemented after the next Assembly elections in May 2007. To seek a framework power now is entirely consistent with the policy set out in the White Paper for a parliamentary Bill such as this one to make broader provision in respect of Wales. I emphasise again that these powers are being conferred on a democratically elected body with its own rigorous scrutiny procedures.

Paragraph 3.12 of the White Paper states that,

If the Assembly were to use its Clause 17 regulation-making powers prior to the clause being converted into enhanced legislative competence of the new Assembly around May 2007, the Assembly's existing procedures for dealing with subordinate legislation, involving consultation, scrutiny and debate and the opportunity to amend proposals, will apply.

It is also important to recognise that a considerable degree of discussion of the policies concerned takes place in its subject committees before the draft regulations themselves are scrutinised by the Assembly. Once the framework power is converted into enhanced legislative competence of the new Assembly as the legislature, the Assembly will be able to exercise the converted enhanced legislative powers relating to NHS redress by way of Assembly measures. Those broad legislative powers will rest with the Assembly. Only the Assembly will be able to make measures and these, too, will be subject to rigorous scrutiny.

The Government of Wales Bill makes provision for the procedure that must be followed in order to enact an Assembly measure. This follows the equivalent provision under the Scotland Act.
 
15 Feb 2006 : Column 1213
 

I hope that I have been able to reassure the noble Earl that the framework power is legitimate, proportionate and founded soundly on democratic principles of scrutiny and debate by a democratically elected Assembly and that he will therefore feel able to withdraw his amendment.

Earl Howe: My Lords, I am grateful for that helpful reply. My mind is now at rest but perhaps I could make doubly sure. If I have understood the Minister correctly, she has made a distinction between the broad power contained in this clause and a delegated power that might be contained in primary legislation, which could in future allow Welsh Ministers to lay detailed subordinate legislation before the Assembly of the kind with which we are familiar at Westminster. If that is the case I have no problem. The enhanced legislative competence to be granted to the Assembly under the Government of Wales Bill is, in layman's language, a power to make primary legislation. In Wales, as the Minister told us, legislation of this kind will be known officially as measures. The framework power in Clause 17 may in due course become a measure, but it will continue to be exercisable by the legislature as a whole—that is the key point—not by Ministers or the executive. As a separate issue as I understand it, a measure such as this may in turn, if the Assembly so decides, confer a power on Welsh Ministers to make subordinate legislation on matters relating, say, to implementation.

I hope that I have got this right. It is somewhat complicated, at least for the uninitiated. If I have summarised correctly, I trust that if nothing else this short debate will have served to guide Members of another place when in due course this Bill receives their consideration. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 [Interpretation]:


Next Section Back to Table of Contents Lords Hansard Home Page