Skip to main content

Government of Wales Act 2006 (Amendment) Order 2015

Volume 758: debated on Tuesday 13 January 2015

Motion to Consider

Moved by

That the Grand Committee do consider the Government of Wales Act 2006 (Amendment) Order 2015.

Relevant document: 13th Report from the Joint Committee on Statutory Instruments

My Lords, I beg to move that the draft order laid before the House on 5 November 2014 now be considered. I will provide noble Lords with a brief summary of what it seeks to achieve. The UK Government are making this order at the request of the Welsh Government. The National Assembly for Wales is currently considering legislation relating to sustainable development in the Well-being of Future Generations (Wales) Bill. The stated intentions of the Bill are to enhance the sustainable development duty on Welsh Ministers and to make sustainable development the central organising principle of the Welsh Government and of other public bodies in Wales exercising devolved functions.

However, Section 79 of the Government of Wales Act 2006 already imposes a duty on Welsh Ministers in relation to sustainable development. To avoid Welsh Ministers being subject to two separate duties, the Welsh Government wish to be able to amend Section 79. Currently, the Assembly does not have the legislative competence to do so. As a result, the UK Government have agreed to use the power under Section 109 of the Government of Wales Act that allows Her Majesty, by Order in Council, to amend Schedule 7 to that Act and thus confer the required competence upon the Assembly.

If passed, this order will enable the Assembly to amend Section 79 of GOWA, which in turn would allow the Welsh Ministers’ obligations to be aligned with the duties contained in the Bill. Section 79 was created in GOWA in 2006, when only executive competence existed in Welsh devolution. Following the referendum in Wales in 2011, the Assembly obtained full legislative competence for the subjects in Schedule 7 to the Government of Wales Act. This order therefore reflects the evolution of Welsh devolution since 2006. Section 109 requires the order to be approved not only by both Houses of Parliament but also by the National Assembly for Wales. The order was approved by the House of Commons on 15 December, and the debate in the Assembly is expected to take place on 20 January.

I believe that this order demonstrates the UK Government’s continued commitment to work constructively with the Welsh Government to achieve an effective devolution settlement for Wales. I hope that noble Lords will agree that this order is a sensible use of the power in Section 109 and that the practical result is something to be welcomed. I commend the order to the Committee.

My Lords, I rise to ask for clarification from the Minister. I do not think that many people would want to block the order, because it seems a patently sensible thing to do—but if the House did not pass this order, it would be a case of the unelected Peers blocking the wishes of both the elected House of Commons and the elected National Assembly for Wales. That strikes me as a rather unsatisfactory position to be in—albeit that the powers are being used in this instance with a recommendation and to move forward.

Secondly, the Minister said that the Assembly is “currently considering legislation”. I assume that those words were carefully used. Does that mean that the Assembly is currently considering legislation outside its powers? Are there issues that arise from that possibility? Is it outside its competence? If that is the case, are we asking for powers for retrospective action in order to put right something that has already been carried or debated, possibly outwith the Assembly’s powers? All these areas need clarification to avoid any instance arising, perhaps in circumstances more contentious than this. The objective of this order is probably acceptable to everyone, but one can imagine circumstances where that might not be the case and where there could be great difficulties.

I rise briefly to support this order. I followed the question asked by the noble Lord, Lord Wigley, with some interest. As I understand it—I hope the Minister will confirm this, and I think she did so in her opening speech—the order confers further legislative power on the Assembly to promote the Bill that is before it. If it is that, I fully support it. It is part and parcel of the staged process of the evolution of legislative competence contained in the 2006 Act. I know that there are many critics of that process, but it has served the Assembly and the Welsh Government well over the years, prior to the referendum and the Assembly’s full legislative competence. Will the Minister confirm that this is a process of conferring further legislative power on the Assembly to fulfil its wishes to introduce this Bill and carry it through?

If it is, we should hope it is the last such order, because there is unanimity across all parties that for legislation we should move from a conferred powers model to a reserved powers model. That was what the Minister assured us when she was taking the last Bill through the House. The process she described is now in full swing, and I hope that in the near future the proposed reserved powers arrangements will see the light of day. If, as I suspect, this will be the last such order, we should recognise that. I think I am in a minority, but I believe the process that was created to introduce legislative competence was sensible. It was part of a sensible staged process to transfer legislative power, but it is now redundant. I hope that this is the last order of this kind and that we will go over to a reserved powers model.

The title of the Bill that is the driving force behind this order is the most ambitious and courageous title I have ever seen. Over many years, I have heard Ministers making the case that their Bills will improve people’s well-being, but I have never seen the words “well-being” in the title of a Bill. The Well-being of Future Generations (Wales) Bill is an amazingly ambitious and courageous title. I sincerely hope that the performance that flows from the Bill will match it.

I realise that it is not within our competence to discuss the Bill, but considering that we are enabling it to go ahead and are supporting it, I hope it is within the bounds to ask the Minister to give us some idea about the costs that the Bill might incur. The Bill will place a duty on local authorities and a series of public bodies to promote and develop sustainability. At this stage, particularly in local government, there are horrendous problems of finance. I hope that the Bill will not create costs for local government that it cannot sustain.

The Bill that will eventually come forward is about the public sector. As I understand it, the private sector and the third sector will be covered by something called a sustainable development charter. I have not had sight of this charter. If the Minister is in a position to clarify what the charter might be, it would be helpful as a piece of background to an order which I and, I am sure, everybody else will support.

I, too, welcome the amendment order. I also welcome the work being carried out by the Welsh Government in their Well-being of Future Generations (Wales) Bill. The order will help the Welsh Government to pass one of what they consider to be the few laws of its kind in the world. It is a Bill which will put sustainable development at the heart of public service governance in Wales. I also recognise that the Welsh Government see it as their commitment to pass on a better quality of life to their and my children and grandchildren.

The Welsh Government have recognised the systemic weaknesses in the present governance structures for sustainable development in Wales. The Bill will, or should, ensure that they set objectives that match the goals set out in it. The Bill allows the Welsh Government to address further the complexity and unintended consequences that arose from partnership working: overlap and duplication, resulting in increased costs in the planning process. Efforts had already been made in Wales to address this problem—but, even as recently as March 2014, Denbighshire Local Service Board identified 84 partners in the county that it was supposed to work with, and that was not a comprehensive list.

I also welcome the new well-being goals listed in the Bill and the common sense of purpose that they set out for public bodies in Wales. These goals and their descriptors should ensure that such bodies share responsibility for achieving the long-term, economic, social and environmental well-being of Wales.

Although I welcome the Bill now going through the Assembly, it smacks slightly of motherhood and apple pie—or perhaps I should refer to it as “ambitious”, as the noble Lord, Lord Rowlands, did. Perhaps I may ask the Minister a couple of questions, echoing the first question asked by the noble Lord, Lord Wigley. At exactly what stage is the Bill in the Assembly and to what extent has it been scrutinised there?

My Lords, I shall be very brief and build on what my noble friend Lord Rowlands said; that is, I hope that this is the last measure of its kind—I will ask a question or two later as to progress in other legislative fields. I also echo the noble Baroness in saying that the Bill may be aspirational in that duties may be being laid on local authorities without the resources to accompany them.

When I saw on the Order Paper the rather grand title,

“Constitutional Law. Devolution, Wales. The Government of Wales Act 2006 (Amendment) Order 2015”,

I eagerly rushed to find out more about it, and I hope that I am not being too critical when I say that it should perhaps have been the “Much Ado About Nothing” Order, since no one can possibly be against it and query whether the relevant resources will be given. I wish that the Assembly could have acted within the spirit of what has now been agreed, because the 2006 Act seems to have been in a very different context and a very long time ago. Now the context is very different: one of reserved powers rather than the conferring of specific powers. This, of course, therefore makes it a rather convoluted process.

We have in the Chamber looked at some of these questions at some length during proceedings on the last Wales Act, which we have just passed. I assume that that legislation does not affect this order in any way. However, during the passage of what became the Act we talked about the need for a presumption in favour of the passage of competences to the Assembly, rather than to enumerate them here. I think I recall the Minister mentioning St David’s Day and saying that there would be another Bill, for which obviously there will be no time before the election. Perhaps she can indicate whether that new Bill will make this sort of order totally unnecessary in future, and comment on what stage has been reached in consultations on the proposed Bill, which presumably will now take a year or two because I cannot imagine anyone seriously being against it in spirit.

I thank the Minister for outlining the changes proposed. When the National Assembly for Wales was established, it was one of the first legislatures in the world to have sustainable development as a duty within its founding principles.

The Welsh Assembly has already established a reputation as a pioneer in the area of sustainability. It successfully introduced a 5p charge for carrier bags in 2011—a brave yet successful move that has led to a 76% drop in bag usage. In fact, you feel very guilty going to the shops today in Wales if you do not carry a reusable bag. This legislation is being copied by other legislative bodies across the UK. Charging for plastic bags is just one symbol of what can be done in the area of sustainability. Recycling rates have rocketed in Wales and there is a commitment to encourage public bodies to buy local food.

The Welsh Government are currently required to promote sustainable development in their policies and to produce a scheme on how this will be achieved. Wales retained the independent commissioner role when the UK Government decided to end the UK Sustainable Development Commission and has since established the post of Commissioner for Sustainable Futures, ably and competently led by Peter Davies and supported by a strong team in Cynnal Cymru.

However, it is clear that embedding sustainability as the central organising principle when it comes to policy development and delivery at Welsh Government level has not occurred to the extent that was hoped. It is generally agreed that there is a need to strengthen the procedures and governance structures to ensure that sustainability is seen not just as a reporting process but a central theme in policy development. On top of that, it is worth noting that the duty to act sustainably applies only to the Welsh Government and does not have any traction across the wider public sector. To that end, the Welsh Government have introduced a Well-being of Future Generations (Wales) Bill. Ambitious it may be, but there is nothing wrong with ambition.

Whether they give it the kind of resources that may be necessary is obviously a matter for the Assembly. That Bill is due to be agreed, as I understand it, in the spring of this year. It will establish a new statutory sustainable development body with legal powers. It will also ensure that not just Assembly bodies but wider public sector organisations make progress to contribute to the well-being of a sustainable Wales. In addition, the new Bill will be in step with global developments being aligned to the UN process of establishing global sustainable development goals, which will be set this year and will apply to all nations.

We therefore wholeheartedly agree to the request to allow the National Assembly of Wales to amend Schedule 7 to the Government of Wales Act 2006, which will enable the Assembly to make modifications to Section 79, relating to sustainable development. It is important that this right is given to allow amendments to ensure that the new legislation does not simply add a layer of requirements on government but will contribute to the formation of a holistic, clear framework that does not duplicate but builds on the experience of applying the original requirement of sustainable development in the Government of Wales Act.

My Lords, I strongly welcome the support that there has been for the concept behind the order before us today. I remind noble Lords that it is of course our job to facilitate the Bill that several noble Lords have referred to, rather than to discuss the Bill itself—but I will of course answer noble Lords’ questions.

The noble Lord, Lord Wigley, referred to the unelected nature of this House, which is something that might divide opinion here. I entirely understand his comments but will say to him that there is considerable expertise in the House—a lot of it in relation to Wales—gathered here this afternoon. We have a very valuable role to perform in scrutinising legislation, and it is important that we continue to take that role very seriously.

The noble Lord asked whether the Bill was currently outside the competence of the Assembly. What we are doing is enabling the Welsh Government to bring forward an amendment that would allow them to change their competence. The Bill, as it currently stands before and is being discussed by the Assembly, is within its competence. The Welsh Government want to amend it to extend the competence very slightly—I emphasise “very slightly” because this is marginal. The noble Lord, Lord Rowlands, referred to that very point in his comments.

There was a previous order in 2010, and indeed one in 2007, when the second Government of Wales Act came in. However, like the noble Lord, I hope that we will get to a reserved powers position soon and that that will create a tidier devolution settlement that will make such orders unnecessary in future. However, whether or not we have to pass another order like this is entirely up to the Welsh Government. This is being done at their request, and if they identify in any other legislation that they are taking through at the moment that they need those additional powers, or a change in powers, it will behove us to facilitate that and to enable it to happen by passing these orders through both Houses.

The noble Lord, Lord Rowlands, said the Bill was ambitious. I will point out that the Assembly has always been ahead of the curve on sustainability, because when it was established it was given a sustainability duty, which was exceptional at that time. The noble Lord also asked about costs. There are already local service boards that will fulfil much the same functions, although they do not have the sustainable development duty in the same way as is proposed now, so the costs might not be as great as one might assume. Having said that, this issue is not for us but for the Assembly.

My noble friend Lady Humphreys asked about the stage the Bill is at. It is currently at stage two of the scrutiny process in the National Assembly and is expected to be completed in March. The noble Lord, Lord Rowlands, asked about the Wales Sustainable Development Charter, which all sectors can sign up to and adopt. It follows the principles of sustainable development and currently there are private/public and third sector signatories to it.

The noble Lord, Lord Anderson, expressed concern about the resources involved. Once again I say to noble Lords that this is an issue for the Welsh Government and the Assembly. The 2006 Act was indeed passed in a different context, and I would point out to the noble Lord that the reason the section has to be amended by this order is a hangover from the days when the Assembly had only executive powers and did not have legislative competence. The Wales Act 2014, which we have just passed, does not affect this directly and it is hoped that, assuming we move as this Government intend—and for which we have support across the House—to a reserved powers model, there will be a fresh start with a clearer set of powers for the Assembly.

The noble Baroness, Lady Morgan, pointed out the interesting culture change we have all undergone in Wales as a result of the 5p plastic bag charge. Over the Christmas Recess I found myself explaining to some friends in England how extraordinary that culture change has been. It is a small but very important example of the importance of ambition for sustainability —but, once again, our job here is to facilitate that ambition by enabling the Welsh Government to amend the Bill so that they can promote the responsibility and the duty towards sustainability rather than observe it. I commend the order to the Committee.

Motion agreed.