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Government of Wales Act 2006 (Consequential Modifications and Transitional Provisions) Order 2007

Volume 691: debated on Wednesday 25 April 2007

rose to move, That the draft order laid before the House on 26 March be approved.

The noble Lord said: My Lords, the Government of Wales Act 2006 received Royal Assent on 25 July 2006 and is due to come into effect fully following the appointment of the First Minister after the Assembly elections in May this year. The 2006 Act already makes a number of consequential modifications to other enactments which are set out in Schedule 10 to the Act. It also makes a number of transitional provisions which can be found in Schedule 11 to the Act. This order makes further consequential modifications and transitional provisions under powers in the 2006 Act.

The Select Committee on Delegated Powers and Regulatory Reform considered these powers and reported on them in its 17th report of the 2005-06 Session. The committee was content that the Secretary of State should have the power to make such modifications and transitional provisions. There is a similar power to make consequential modifications in Section 105 of the Scotland Act 1998, which must be read with Sections 112 and 113.

The power in Section 160(2) of the 2006 Act to modify an Act of this Parliament is subject to affirmative parliamentary procedures. The power in Section 162(2) of that Act to make further transitional provision is generally subject to the annulment procedure before this Parliament. However, in cases, such as in this order, where such provision includes amendments to specified paragraphs of Schedule 11 to the 2006 Act, then even the transitional provisions are subject to affirmative procedure before this Parliament, hence our debate here today. Noble Lords can therefore be assured that this order is being subjected to the more rigorous scrutiny of the affirmative procedure in this place and in the other place.

With respect to the Secretary of State’s power to make transitional provisions by order, the committee considered that where that power is used to amend Schedule 11 to the 2006 Act, the affirmative procedure must apply.  The transitional provisions contained in this order amend Schedule 11 and are, therefore, also subject to the affirmative procedure.

In terms of volume, the greater part of this order consists of consequential modifications to other enactments.  These modifications are set out in Schedule 1 to the order. I do not intend today to go through and explain all these modifications individually.  The Explanatory Memorandum explains what each of the modifications does.  However, I believe it would be worth explaining the context in which the modifications are made, and why they are consequential on the provisions of the 2006 Act.

At present, as noble Lords will be aware, the National Assembly for Wales is a corporate body, and there is no legal separation between the Assembly and the Assembly Government.  After the Assembly elections in May, there will be legal separation, so that the Assembly as legislature is formally separate from the Assembly Government, including the Welsh Ministers, as Executive.  In addition, the Assembly will have new legislative powers to pass Assembly measures, and the executive functions that the Assembly currently exercises will transfer to and vest in the Welsh Ministers instead. Those executive functions transfer at the time of separation to the Welsh Ministers under paragraph 30 of Schedule 11 to the 2006 Act. Many of those executive functions are functions that have been given to the current Assembly in or under Acts of Parliament.  As a result of the transfer of those functions, other references to the current Assembly in those Acts often also need to change; for example, references to the Welsh Ministers.

Paragraph 32 of Schedule 11 to the 2006 Act makes provision for such references to the existing Assembly in other enactments, including in other Acts of Parliament, to be construed as references to the Welsh Ministers, or indeed to the First Minister, Counsel General, Assembly commission or new Assembly, as appropriate depending on where the relevant function has been transferred. However, where that general glossing provision would not give the correct result, or where it is thought clearer to make the amendments directly to the legislation in question, these have been provided for in this draft order.

Some of the consequential modifications to other Acts made by this order are required because of the structural changes under the new devolution settlement, in particular the legal separation of the legislature from the Executive, and because of the new roles that the new Assembly and Assembly Government have as a result. An example of this is the modifications to the Local Government Finance Act 1988, which are in Schedule 1, paragraphs 25 to 30 of the order.

Without these modifications, the functions of the existing Assembly in relation to making local government finance reports would merely transfer to the Welsh Ministers, in accordance with paragraph 30 of Schedule 11 to the 2006 Act. However, as a result of the modifications in this order, while the function of making such reports will be a function of the Welsh Ministers, there will also be a role for the new Assembly in scrutinising and approving these reports.  The new Assembly’s scrutiny and approval role is sensible and appropriate, in the context of the legal separation of the legislature and executive.

In addition to the modifications required as a result of the structural changes, there are also modifications required because the mechanism in paragraphs 30 to 32 of Schedule 11 to the 2006 Act cannot operate to achieve the textual amendments which are necessary to take account of the new devolution arrangements under the 2006 Act. For example, Section 21A of the Sex Discrimination Act 1975, as amended by the Equality Act 2006, makes it unlawful for a public authority to carry out a discriminatory act in exercising its functions. However, under the Sex Discrimination Act, this prohibition does not apply to certain listed functions. The listed functions currently include, among other things, preparing and making Bills and Acts of this Parliament and of the Scottish Parliament. This order adds measures, proposed measures, Bills and Acts of the National Assembly for Wales to that list.

The preparing, considering and making of subordinate legislation by the current National Assembly for Wales already appears in the list. However, this order changes the reference to the Assembly to a reference to the Welsh Ministers, the First Minister for Wales or the Counsel General to the Welsh Assembly Government. That is because they, rather than the Assembly, will have the functions of making subordinate legislation under the new devolution arrangements.

Noble Lords may have noted that paragraph 4.6 of the Explanatory Memorandum discusses the National Assembly for Wales (Diversion of Functions) Order 2007, and the relationship between that order and this one. The diversion of functions order was considered by the Assembly in plenary on 21 March, and was made by Her Majesty in Council on 4 April. The diversion of functions order transfers to the new Assembly certain functions that would otherwise be transferred to the Welsh Ministers under paragraph 30 of Schedule 11 to the 2006 Act. The provisions of the diversion of functions order should be read with the consequential amendments made by this order—for example, in relation to the Food Standards Act 1999—to see the full picture in terms of how other Acts will operate in the light of the new devolution settlement in Wales.

I have spent most of my time discussing the consequential modifications aspect of this order, but I would also like to discuss briefly the transitional provisions contained in the order. Schedule 11 to the 2006 Act, as I have already mentioned, contains a large number of transitional provisions, to accommodate the change between the current devolution settlement and the new one. At paragraphs 33 to 35, it tackles the problem of how to provide for legislative procedures—that is, affirmative or negative or even no procedure—to the exercise of Welsh Ministers’ functions of making subordinate legislation.

In future, Acts and Assembly measures that give powers to make subordinate legislation to the Welsh Ministers will also specify the legislative procedure that is to apply in respect of that subordinate legislation, whether it has to be approved by a resolution of the Assembly before it can be made, or whether it can be made without such a resolution but is subject to annulment by the Assembly.

However, the powers to make subordinate legislation that are currently vested in the Assembly—and will in future be vested in Welsh Ministers—are not subject to any specified legislative procedure.  That is because the subordinate legislation is made by the Assembly, a democratically elected body, and it is for the Assembly itself to decide what procedures it will follow in making subordinate legislation.  Therefore, the Assembly’s Standing Orders make certain provision for procedures to be followed in exercising powers to make subordinate legislation.

Now that those powers are to be vested in the Welsh Ministers, provision is to be made for an Assembly legislative procedure to apply to them. Paragraphs 33 to 35 of Schedule 11 provide for that in most cases, but since the 2006 Act received Royal Assent, we have discovered further powers to make subordinate legislation which are not caught by paragraphs 33 to 35, and in respect of which, therefore, no legislative procedure would apply under the new devolution settlement.  We are picking up those powers, along with those conferred on the Assembly since the passage of the 2006 Act, in this order, so that an appropriate procedure applies to them.  The powers and procedures are set out at paragraphs 4 and 5 of Schedule 2 to the order.

As I have outlined, this order, in all its detail, is necessary to implement fully the policy contained in the Government of Wales Act 2006. I commend the draft order to the House. I beg to move.

Moved, That the draft order laid before the House on 26 March be approved. 14th Report from the Statutory Instruments Committee.—(Lord Evans of Temple Guiting.)

My Lords, I am grateful to the Minister for setting out the main provisions and significance of the order before us today. The access to election documents regulations we are to discuss separately are relatively short, but the modifications and transitional provisions order is much longer at 54 pages, including the excellent Explanatory Notes.

Both statutory instruments merit close scrutiny, examination and explanation, which they have had to a substantial extent in last week’s discussion in the other place. However, I welcome the further opportunity for an exchange of views that your Lordships have today. The order is not quite as long as the 277-page behemoth that we had the pleasure of discussing earlier this year, but at 54 pages of somewhat complex detail it remains an arduous read.

At a quick count, the order makes amendments to more than 30 different Acts of Parliament, and covers a vast amount of ground in implementing the Government of Wales Act 2006, the main effect of which, as the Minister said, is to separate the assembly legislature from the Executive: the Welsh Assembly Government. This involves an extensive transfer of functions, mirrored in this order by the frequency of the modification,

“for ‘National Assembly for Wales’ substitute ‘Welsh Ministers’”.

I do not know if I am alone—I doubt it—but I often wonder whether the Welsh electorate or the National Assembly fully realise the magnitude and radicalism of the changes they will face after the election on 3 May, when the new Act’s provisions introduce new-style devolution. Out goes the corporate Assembly, and in come the legislative Assembly and Assembly Government.

Public reaction to the change depends on the conduct of the Assembly Government that follows the election. There is currently wide speculation as to what kind of Government that might be. Almost every conceivable form of coalition is ruled in, and I must not add to speculation in this intensive pre-election period. As noble Lords will be aware, however, we Conservatives are committed to making devolution work successfully in Wales. We recognise that there is no turning back the clock on devolution and want to see it progress and improve people’s lives. The separation of legislative and executive power makes sense and is a real step in the right direction. We welcome the new provision in this order to enable the Assembly to approve or disapprove of secondary legislation, thereby ensuring the accountability of the originating Ministers. We also appreciate the importance of the slightly mystifying diversion of functions order, which again ensures that Ministers are answerable to the Assembly where appropriate, as described in the Explanatory Memorandum.

I said a few moments ago that the people’s reaction to the new powers conferred by the Government of Wales Act 2006 depends on the conduct of the new Government. It also depends a great deal on the conduct of the new Assembly as legislature, holding Ministers to account, scrutinising proposed Assembly measures and parliamentary legislation affecting Wales. If it does this well—I hope that it does—it may be, in the fullness of time, that the electorate will develop sufficient confidence in the Assembly to require a referendum to be held on further legislative powers. I am not opposed in principle to such powers being granted to the National Assembly, but I firmly believe that they should be granted only with the full approval of a referendum of the people affected by the exercise of such powers.

As the Minister has outlined, the order before us makes consequential amendments to various pieces of legislation in Schedule 1, and some transitional provisions in Schedule 2. These provisions are made under Schedules 10 and 11 respectively to the Government of Wales Act, as the Minister told us, and flow from the provisions within the legislation that formally separate the legislature from the Executive in Wales.

I shall not dwell in detail on either the consequential changes to legislation or the transitional arrangements, which have been amply covered in the Explanatory Notes and Memorandum as well as ministerial speeches here and in another place. However, I have a number of particular points and would be grateful if the Minister could address them.

First, can the Minister expand a little on the consultation procedures that have been followed for this order? Paragraph 7.10 of the Explanatory Notes to the order states that there has been no public consultation but that “relevant interested parties” have been consulted. Could the Minister briefly explain why it was felt that no public consultation was necessary, and tell noble Lords which “relevant interested parties” were consulted and how they were selected? Secondly, what are the anticipated costs of the transitional provisions? As I have said, I welcome the separation of the legislature and the Executive and the creation of an administrative commission within the National Assembly.

These are major changes. Life at the National Assembly will never quite be the same again. Of course, there will be a period of bedding in for these new arrangements and it may be difficult to estimate final costs, but are there currently any estimates of what the transitional aspects of the order before us today will cost the National Assembly? Ultimately, we are talking about tax payers’ money and I am sure that noble Lords can all agree that we should aim for the highest degree of transparency where spending public money is concerned.

Finally, can the Minister assure us that there are no hidden or obscure transfers of powers from Westminster to Cardiff, notably in Schedule 2? I have sought to be thorough in my examination of the order but I by no means claim infallibility, and seek an assurance from the Minister that there is nothing recondite by way of a transfer of power from here to Cardiff in this order. Assuming that these points are addressed by the Minister in his usual clear, concise and eloquent fashion, we will be content to let the order proceed.

My Lords, I apologise to the noble Lord, Lord Rowlands, but I think that this is the right procedure.

Given that the Government of Wales Act 2006 succeeds the 1998 Act, this is a necessary order. I am grateful to the Minister for the way in which he presented the explanation of the order and for the Explanatory Notes. As the noble Lord, Lord Roberts of Conwy, said, it is a substantial document. Perhaps wisely, I took a look at it yesterday, and thank goodness I did because it incorporates so much. This is a transition from one piece of legislation to another. It is obvious that consequential amendments must be made for the new Assembly which comes into being after the election results on 3 May.

I am concerned about some aspects of the process being carried out and the origins of some of the opinions and assertions stated in the Explanatory Memorandum accompanying this constitutional law on devolution for Wales and emanating from the statutory instrument. The statutory instrument is substantial. One is tempted to say that it is turgid in length. At the same time it encompasses a great deal. It incorporates the consequential amendments to a multiplicity of existing Acts of Parliament and inserts them into the context of the Government of Wales Act 2006. When one casts the net wide it incorporates the Representation of the People Act 1983, the Mental Health Act 1983, the Race Relations Act and many other Acts of Parliament. One can see why it is necessary to do that. The kindest thing to say is that it is very thorough, and so it should be.

The Government of Wales Bill successfully passed through this House last summer, and it passed the test of democratic accountability as far as it goes. I shall not carp on too much about the statutory instrument, except where it appears to take within it a number of decisions and value judgments on the legislation itself. I shall refer to one or two things with which I agree and others which I question for my party.

I agree with the noble Lord, Lord Roberts of Conwy, and the Minister that the separation between the Executive and the legislature is vital. We discussed that when the Government of Wales Bill was going through this place. The new Assembly is an unincorporated association. We think that is excellent; and so it should be.

During the passage of the original Government of Wales Act there was strong lobbying for committees. Most of us are of a democratic inclination and wanted to see participation by the committees of the Assembly. But there is no doubt that this is a much more businesslike legislature than the one set up by the original Government of Wales Act.

Other factors cause me a little concern. There is a section under Schedule 10 which refers to Ministers of the Crown. It states that,

“when the Minister of the Crown exercises the function, [it] applies to the exercise of that function by the Welsh Ministers. Where there is no equivalent Minister of the Crown function, the Assembly legislative procedure has to be specified or no procedure will apply”.

I think that I gather from what the Minister said that the Assembly would be involved in this piece of decision making.

The National Assembly for Wales (Diversion of Functions) Order requires very agile reading but I think I know what that is about. Some of that has already been achieved by the Assembly. I wish to raise one or two other points. For example, in paragraph 4.8 of the Explanatory Memorandum there is a phrase that occurs twice. It says:

“However, there are a few functions that are otherwise caught by paragraph 30(1) but which it is considered should be functions of the new Assembly”.

Who considered that? I assume it is the parliamentary draftsmen and draftswomen and that it comes from a legal angle. I hope that that is the case. It should be, but I would like the Minister to clarify it. That phrase appears again in the text. I hope I am right in my assumption that it stems from a legal basis.

We agree particularly with paragraph 4.10 of the Explanatory Memorandum that Orders in Council should be a function of the new Assembly rather than transferred to the Welsh Ministers—to paraphrase what is said there. There are other issues which occur. However, I would say that the document threads its way through a fairly tortuous path but I think that I can make sense of it.

Finally, like the noble Lord, Lord Roberts of Conwy, I find rather extraordinary the statement in paragraph 7.10 of the Explanatory Memorandum that,

“there has been no public consultation on this Order when in draft, relevant … parties have been consulted”.

The Act, as the Minister said, received Royal Assent last July. Nearly nine months have passed since then. Why did the document not go out for consultation much earlier? It is very detailed and we have received it nine days before the election and the election results. I have seen this sort of thing happen under various governments. I hope that it is not deliberate and that this is not skipping around a bit and not having proper scrutiny of the statutory instrument. No doubt the Minister will attempt to reassure me on that point.

My Lords, I rise to ask my noble friend for clarification about the consequences and the impact of the order and these transfers on the process of subordinate legislation and the way in which subordinate legislation will be dealt with. I do so because I frankly believed that the first Government of Wales Act, which vested those subordinate legislative powers—because the Assembly was a corporate body—in the Assembly as a whole, led to a very refreshing and powerful degree of scrutiny. Since the establishment of the Assembly, secondary legislation has been good. There has been consultation, the process has gone through committee, there have been the debates and, above all—something we have never had the privilege of doing here or in the other place—there has been the ability to table amendments to subordinate legislation.

As a long-standing former Back-Bencher in the other place I was a great supporter of the right to amend subordinate legislation. This House and the other place were never granted the power to do so. Yet the National Assembly, because those subordinate powers were vested in the Assembly as a whole, has exercised the right to amend subordinate legislation as it has gone through the Assembly. Now, as I understand it—and I think sadly so, but it is a matter entirely, as my noble friend will tell me, for the Assembly itself—under these orders we are transferring the making of subordinate legislation from the Assembly to Welsh Ministers. It is utterly logical that we should do so because now we are abolishing the corporate character and status of the Assembly and returning to a traditional relationship between a legislature and Ministers.

I understand that one decision taken is that the scrutiny of the legislation—subordinate legislation that will be transferred to Welsh Ministers under the order and under the Government of Wales Act—will not be amendable in the Assembly. Therefore, sadly, from what I thought was a rather innovative and refreshing change conducted by the Assembly in the way in which it handles subordinate legislation, it has gone back to our old-style Westminster model of having subordinate legislation that will be approved by either negative or affirmative resolution, but not subject to any form of amendment. I just want to register the fact that that is rather sad and retrogressive in procedure.

My noble friend will say that it is right that the Assembly makes that decision. But in respect of subordinate legislation that flows from framework clauses that both these Houses have passed and granted to the Assembly during the past few years, we have a vested interest in what happens and that legislation is processed and scrutinised. I say that because I can remember a number of occasions here when we have had to fight an understandable queasiness to grant the sweeping framework powers that some of the framework clauses grant. A case that I, and other Members of this House, have made to justify that was that we were handing the framework powers to an Assembly that had the wonderful power of scrutiny and even of debate and amendment.

I think that I have found the answer in paragraph 4.8 of the Explanatory Memorandum, but I want my noble friend to confirm what will happen to subordinate legislation that may flow—I do not think that any has so far—from framework clauses of Bills passed by this House with the clear understanding that they would be subject to the full scrutiny of what was the Assembly procedure, including Members of the Assembly being able to amend subordinate legislation as it passed. I understand that for new legislation which will be made by Welsh Ministers, it is for the Assembly to decide, but for subordinate legislation that flows from Bills that we have passed during the past year or two, such as the NHS Redress Bill, the education Bill and possibly a health Bill we have granted—with all the queasiness that is traditional to both Houses—the Assembly sweeping powers to make subordinate legislation. We did so because we argued that the Assembly had rigorous and vibrant scrutiny procedures, including the power to amend.

I therefore seek assurance from my noble friend about paragraph 4.8, which deals with this aspect of the subordinate legislation that has flown, as it states, from what are known as “framework powers” and contained in the Education and Inspections Act and the NHS Redress Act. The noble Lord, Lord Livsey, rightly mentioned the phrase in that paragraph:

“However ... a few functions ... should be functions of the new Assembly”.

As I understand it—I hope I have got it right—the framework powers that we have granted will remain within the Assembly and the making of that legislation will be an Assembly process. I seek my noble friend’s clarification that what is happening or going to happen is that subordinate legislation flowing from framework clauses in Bills that we have passed will be turned into full-blooded measures. If that is the case, I will be content, because the measures in the new Assembly are subject to the full rigour of scrutiny and debate. Will they be amendable? In that case, I will feel happy and content. I hope that my noble friend can give me that assurance.

My Lords, I start by thanking the noble Lords, Lord Roberts of Conwy and Lord Livsey, and my noble friend Lord Rowlands for their positive contribution to this short debate. A number of detailed questions have been asked. I shall try to answer most of them. If I fail to do so, letters will be dispatched with the answers.

First, the noble Lord, Lord Roberts of Conwy, had three specific points on which he required clarification. His first point was on the consultation procedure followed for the order and why it was felt that no public consultation was required—a point also raised by the noble Lord, Lord Livsey. The order is entirely consistent with the policy already agreed under the Government of Wales Act 2006: the legal separation of the Assembly as legislature and Assembly Government, including Welsh Ministers, as Executive. As the noble Lord pointed out today, as a result of that separation, the roles of the Assembly and of the Welsh Ministers in future will be quite different. The Welsh Ministers will have executive powers in their own right and the Assembly will have new legislative powers and the role of scrutinising the actions of Ministers.

The consequential modifications which comprise the bulk of the order in Schedule 1 contain no new policy. Their purpose and effect is to make references to the Assembly in existing legislation work to reflect the roles that the Assembly, the Welsh Ministers, the Counsel-General and the Assembly commission will have. As there is no new policy to consider here, public consultation did not seem appropriate. However, where the modifications affect enactments that are the responsibility of Whitehall departments, those departments have been consulted. There has also been appropriate consultation within the departments of the Welsh Assembly, the Government and the Welsh parliamentary service—the latter on the basis that the staff of the parliamentary service will, in general, transfer to the employment of the Assembly commission following separation. I hope that that explanation comforts the noble Lord, Lord Livsey.

On the transitional provisions contained in Schedule 2, in the main, they provide for an Assembly legislative procedure to apply to subordinate legislation that may be made in future by Welsh Ministers under powers to make such legislation that already exist. Most existing functions of making subordinate legislation already have a legislative procedure ascribed to them under the provisions in paragraphs 33 to 35 of Schedule 11 to the Act. The order merely picks up those functions of making subordinate legislation not picked up in time to make it into Schedule 11 to the Act. The type of legislative procedure—affirmative or negative—has been allocated in accordance with the same principles that were applied to the functions contain in Schedule 11. Again, therefore, public consultation did not seem to be required.

Secondly, the noble Lord, Lord Roberts of Conwy, asked about the costs attached to the transitional provisions contained in the order. I can assure him that the order in itself will not incur any additional cost for the Assembly. As I have explained, the main effect of the order is to ensure that references to the Assembly in existing legislation are corrected to refer to the Welsh Ministers or Assembly commission where that is appropriate, and that appropriate legislative procedures are prescribed for existing functions of making subordinate legislation. Although subordinate legislation procedure in future will be different, it is expected that there will be an increase in the cost of those procedures to the Assembly.

The noble Lord’s final request was for an assurance that the order does not contain any hidden or obscure transfer of powers from Westminster to Cardiff. I can confirm absolutely that there is no such hidden or obscure transfer of powers. I am grateful for the positive reaction to the order.

The noble Lord, Lord Livsey, asked who has decided which functions in the National Assembly for Wales (Diversion of Functions) Order 2007 should be reserved to the Assembly. It was the Secretary of State’s initial consideration, as advised by officials and legal advisers, but it was the Assembly that approved the order. The noble Lord also asked why this order is being laid so long after the Government of Wales Act received Royal Assent. As noble Lords will appreciate from the length of the order, a vast amount of painstaking work in identifying all the references to the current Assembly in legislation has been required. It is vital that this order is comprehensive to ensure that the new devolution settlement in Wales is properly implemented, so it could not have been brought before the House any sooner.

The noble Lord, Lord Rowlands, asked whether the framework powers will be subject to Assembly scrutiny and amendment. Yes, they have been converted into powers to pass Assembly measures. These will be subject to Assembly scrutiny and amendment before being passed by the Assembly. The noble Lord also asked what the level of scrutiny would be in the new Assembly subordinate legislation procedures, especially of powers to amend orders. The Assembly will not have the power to amend subordinate legislation. It will approve or annul, depending on which procedure applies. This principle is a fundamental part of the Government of Wales Act. The Assembly will consider measures, and it is not feasible for it also to amend subordinate legislation. As I said, if I fail to answer any question asked by noble Lords, I will write to them. In the mean time, I thank noble Lords for their positive contribution to the debate.

On Question, Motion agreed to.