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National Assembly for Wales (Legislative Competence) (Culture and Other Fields) Order 2010

Volume 718: debated on Thursday 25 March 2010

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the National Assembly for Wales (Legislative Competence) (Culture and Other Fields) Order 2010.

Relevant document: 10th Report from the Joint Committee on Statutory Instruments.

My Lords, this draft LCO has been approved in the other place and by the National Assembly on 23 February. The Government recognise the wide range of cultural services and activities that local authorities provide, and the contribution such provision makes to the life of local communities. These services also contribute to the Welsh Assembly Government’s agenda for health, community regeneration and education. Recognition of this contribution is at the heart of this legislative competence order.

The Assembly Government’s aim is to widen participation in the full range of artistic, cultural, sporting and recreational activities. The background of people, their level of income or where they live should not be barriers to them accessing high-quality cultural experiences. This LCO will allow the Welsh Assembly Government to fulfil a commitment in its One Wales programme of government to place a statutory duty on local authorities to promote culture, to encourage partnership and to deliver high-quality cultural experiences for their communities.

Turning directly to content, the LCO inserts three matters into Part 1 of Schedule 5 to the Government of Wales Act 2006, one in each of three fields. These are:

“Field 2: ancient monuments and historic buildings, Field 3: culture”,


“Field 16: sport and recreation”.

Each matter relates to the functions of local authorities in the support, improvement and promotion of the following: Matter 2.1 covers the public appreciation of archaeological remains, ancient monuments, buildings and places of historical or architectural interest, and historic wrecks; Matter 3.1 relates to arts and crafts, museums and galleries, libraries and historical records, and cultural activities and projects; and Matter 16.4 relates to sport and recreational activities. The LCO is framed in relatively narrow terms, in that it is limited to the functions of Welsh local authorities in these specified areas. It is not seeking broader powers over other aspects of culture in Wales, but the scope encompasses a wide range of cultural services and activities which local authorities provide.

The LCO has benefited from pre-legislative scrutiny by the Constitution Committee, the Welsh Affairs Committee in the other place and a committee of the National Assembly. I am grateful for the thorough scrutiny that has been undertaken, and some changes have been made to the draft LCO since that scrutiny took place. We have amended the Explanatory Memorandum in response to certain of the Welsh Affairs Committee’s recommendations, and taken a further look at the exceptions contained in the LCO. The committee noted that Matter 2.1 in the proposed LCO refers specifically to local authority functions,

“in the support, improvement and promotion of the appreciation by the public of archaeological remains”,

and ancient monuments, whereas the other matters in the LCO—Matters 3.1 and 16.4—make no reference to public appreciation. The committee’s view was that the rationale for this difference should be set out in the Explanatory Memorandum; this has now been done at paragraph 7.10.

The Assembly committee also recommended that all the fixed exceptions in the proposed LCO be removed, taking the view that it was important for the Assembly to have powers to legislate in the whole area covered by Matters 2.1 and 3.1. The LCO has been revised to remove these specific exceptions. The UK and Welsh Assembly Governments, having considered the recommendations carefully, agreed with the Assembly committee’s view and concluded that removing the fixed exceptions gives the Assembly appropriate flexibility and competence over a coherent area.

In considering the recommendations, we have been mindful of previous comments made by the Welsh Affairs Committee that LCOs should be drafted with the aims of clarity and simplicity in mind, and that excessive use of exceptions risks making the devolution settlement complex and difficult to understand. The Government very much agree and, following careful consideration of the scope of Matters 3.1 and 16.4, the UK and Welsh Assembly Governments have agreed to insert only one additional exception. This relates to the,

“licensing of sale and supply of alcohol, provision of entertainment and late night refreshment”.

The phrasing of this exception mirrors the exception contained in paragraph 12 of Part 1—headed “Subject”—of Schedule 7 to the 2006 Act. It relates only to Matters 3.1 and 16.4.

We also carefully considered whether the six general or floating exceptions in the proposed LCO were needed. Three of the general exceptions have been removed, as they have no effect on the competence to be conferred. Three floating exceptions, which do relate to the matters, remain in the LCO. These are:

“(1) Public lending right.

(2) Classification of films, and video recordings. ...

(1) Betting, gaming and lotteries”.

I would like to assure the Committee about the potential impact of a new cultural statutory duty on local authorities in the current economic climate. Any proposed measure brought forward as a result of this LCO would be subject to extensive consultation and a rigorous impact assessment. These would take into account all issues, especially finance. Indeed, the Assembly Government Minister for Heritage, Alun Ffred Jones, has made it absolutely clear to the National Assembly that this will be the case.

The Assembly Government are also mindful of the need to ensure that any statutory duty will preserve the flexibility of individual local authorities to determine and meet the needs of their own communities. Key stakeholders, particularly the Welsh Local Government Association and individual local authorities will be fully consulted on the use of any new powers introduced as a result of this legislative competence order.

I am sure the Committee will agree the important role that culture plays both in our communities and at a national level, and that this LCO is a modest but important extension of the Assembly’s competence. Accordingly, I beg to move.

My Lords, I thank the Minister for outlining the order. Its purpose is to supply the Welsh Assembly with legislative competence in respect of ancient monuments, historic buildings, culture, sport and recreation, all of which, I am sure, are of extreme interest to the population of Wales, and are very available. Essentially, it seeks the power to impose duties on local authorities in connection with the provision of recreational, sport and cultural activities as well as the improvement and promotion of historic buildings. These are areas in which local authorities already have powers. The policy of the Assembly Government, therefore, appears to be to seek to compel local authorities to provide such services, rather than simply to encourage them to do so.

Indeed, this is made clear by the Explanatory Memorandum. It states:

“Issuing guidance to local authorities (which the Welsh Assembly Government could do under existing powers) which is not backed by a statutory duty would not achieve the policy aim of the One Wales commitment”.

The element of compulsion will inevitably result in additional cost to local authorities at what is, by any measure, a difficult economic time. Will the Minister indicate whether the Welsh Assembly Government intend to provide financial support to local authorities for complying with the new compulsory regime, or will the cost of compliance fall on the taxpayers?

Perhaps the Minister could also assist with a further matter. The Explanatory Memorandum indicates that there is,

“a need to ensure that putting culture on a statutory footing does not create a minimum standard which could have the unwanted impact of lowering provision in some areas rather than securing improvement”.

Will the Minister please explain how it is proposed that this should be done? If standards are to be prescribed by the Assembly Government, they will of necessity be minimum standards and the feared consequence might be realised.

Finally, will the Minister please clarify the exceptions set out in Article 3 of the draft order? These relate to public lending right, classification of films and video recordings and betting, gaming and lotteries. The original draft LCO also included exceptions in respect of broadcasting, government indemnities for objects on loan and payment to Her Majesty’s Revenue and Customs in respect of property accepted in satisfaction of tax apart from property in which there is a Welsh national interest.

The Explanatory Memorandum records that the Government have concluded that those three exceptions, which do not appear in the draft LCO before the Committee, have been removed as they have no substantive effect on the competence conferred by it. Will the Minister please formally confirm that he still considers this to be the case and that the order, in its final form, will have no impact on any of the exceptions which have been deleted from this order? I support the order in principle and await the noble Lord’s comments.

My Lords, before speaking to this LCO, I must declare a number of interests. I am a founder vice-president of the Hay-on-Wye Festival of Literature. I am also a member of Brecon Museum Art Fund, which selects art in local areas to be displayed within the county. I am president of the Welsh Association of Disabled Cricketers—not surprisingly, I suppose, having done 35 seasons in the field. Also, I am president of the Abbey Cwmhir Association. Abbey Cwmhir is a monastic relic in Radnorshire and the grave of Llywelyn ap Gruffydd, the last native Prince of Wales. His headless body was buried there by the monks in 1282. So I declare a great interest in this particular LCO.

The historical interest is very important because relics in Wales have not always been all that well looked after, although the organisation Cadw, which is a conservation body in Wales, is doing an excellent job in putting that right. Local authorities do their best in difficult circumstances to maintain their buildings and local arts and crafts—sport is also catered for—but in all those areas, the voluntary sector is heavily involved and raises funds which are often matched either by the Assembly or by the local authority. We know that that will be extremely difficult in future, especially given the settlement that the Assembly is likely to get.

I associate myself with the remarks of the noble Lord, Lord Glentoran, and, in particular, his questions to the Minister on the exceptions and the fact that there are a number of statements about the inability to raise money. The Explanatory Memorandum mentions that,

“Welsh ministers may by order make provision preventing local authorities from doing, by virtue of this power, anything that is specified, or is of a description specified, in that order”.

A little explanation of that would be helpful to the Committee. The principle of support for culture is extremely important in Wales. I certainly welcome the LCO and shall watch the enactment with detailed attention to see how successful it will be.

My Lords, I am grateful to both noble Lords for their broad support for the measure, while having some pertinent questions to which I shall do my best to reply—leaving the most difficult one until the end, if I may.

I begin with the most straightforward question. The noble Lord, Lord Glentoran, was anxious about whether the three floating exceptions removed from the LCO could impact on the three matters in the order. They do not impact on the three matters in the order at all. I can confirm that position. That question was addressed in consultation. It is right of the noble Lord to seek that assurance, which I can give him categorically.

The interesting and more difficult question to answer—I left the most difficult question until the end—theoretically is whether the LCO will result in a minimum standard of lower cultural provision being created in authorities, because once one makes a position universal, there is a danger that the bedding down of that universality will be below that already provided in the best circumstances.

That is an important consideration and I reflect that the Welsh Assembly Government were concerned about this matter. They want to preserve flexibility for individual local authorities to determine and to meet the cultural provision needs of their communities. As will be appreciated, on certain archaeological and historic aspects, local authorities have very different levels of needs and responsibilities because of somewhat chance factors. In putting forward this proposal, the Welsh Assembly Government have stated quite clearly that they are mindful of the danger of an unwanted impact on loan provision in some areas, which is already high because a minimum seems to be set.

They have to be trusted to meet that objective. After all, the whole point of a legislative competence order is that the responsibility will rest with the Welsh Assembly Government. Their responses in support of this position indicate how mindful they are of the very point raised by the noble Lord and provide some security that we will not see this measure produce a reduction to a common minimum. When one thinks about the differential provision of cultural opportunities across Wales, it will be recognised that the sheer diversity of that country means that those who are the most fortunate through historical factors such as past investment and the resources of the local authority will scarcely set their standards by the minimum of the less well resourced and well blessed of the authorities, the disparity being so great. I do not think we should worry about this too much, but I appreciate the point.

The noble Lord, Lord Livsey, mentioned the explanation in the explanatory note. It is subject to the general restrictions in Part 2B of the Government of Wales Act, which covers the limitations on conferring functions on Ministers of the Crown or creating criminal offences. All those were part of the Government of Wales Act, so I hope he will appreciate that that is the context in which this order is being presented.

On an issue which no doubt exercises all noble Lords who have addressed themselves to it: what is the point of a cultural minimum and an increased obligation on local authorities if those authorities are strapped for cash as regards meeting the obligations they already have? In formulating their statutory duties, the Welsh Assembly Government have already made it absolutely clear that they will take funding issues fully into account in taking forward proposals on this statutory duty. The opportunity for law making that we are seeking to extend to the Assembly Government is not within the timeframe we all expect of the present economic difficulties. After all, this will be a legislative possibility for many years to come. Of course, the Welsh Assembly Government will take decisions and reach conclusions on the basis of the resources they have available. I want to emphasise in particular to the noble Lord, Lord Glentoran, that under the partnership agreement with local government there is a requirement that all new burdens on local authorities in Wales are funded, so the Welsh Assembly Government know exactly where they stand in regard to the legislative burden. Consequently, we are bound to assume that they will cut their suit according to their cloth in the immediate future.

Yes. It is their responsibility. I hope that the Committee understands clearly that we are creating a framework for the Welsh Assembly Government to take decisions, but that the democratically elected Government in Wales must take as much account of the resources that they demand from the people of Wales as the United Kingdom Government do of what they demand from their electorate. I commend the order.

Motion agreed.