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Welsh Ministers (Transfer of Functions) Order 2018

Volume 791: debated on Thursday 17 May 2018

Motion to Approve

Moved by

My Lords, the order we are debating this afternoon transfers the remaining Minister of the Crown functions in devolved areas to Welsh Ministers.

I start by giving some background on the order. Noble Lords will recall the Wales Bill taken through this House so ably by my noble friend Lord Bourne of Aberystwyth. That Bill—now, of course, the Wales Act 2017—implements the Government’s commitments in the St David’s Day agreement to a clearer devolution settlement for Wales, based on the firm foundations of a reserved powers model. The new model, which came into force on 1 April, delivers greater clarity over the powers and responsibilities of Parliament and those of the National Assembly for Wales.

The Wales Act 2017 also strengthens Welsh devolution by devolving significant further powers to the National Assembly for Wales. Many of these powers also came into force on 1 April, meaning that the Assembly can now decide, for example, how its Members are elected, the speed limits on Welsh roads and how taxis in Wales are regulated. During the passage of the Act, the Government committed to making clear through that Act and associated secondary legislation how the remaining Minister of the Crown functions in devolved areas would be exercised in future.

Unlike in Scotland, there has never been a general transfer of Minister of the Crown functions in devolved areas to Welsh Ministers. The different history and geography of Wales compared to Scotland, and the greater interaction cross-border, means that it has been more appropriate to transfer functions in specific areas. This strategy leads to us making clear the specific functions that have been transferred and therefore the substance of Welsh Ministers’ executive competence.

New Schedule 3A to the Government of Wales Act 2006, inserted by Schedule 4 to the Wales Act 2017, sets out the statutory Minister of the Crown functions in devolved areas that are exercised concurrently or jointly with Welsh Ministers. There is also a handful of so-called pre-commencement functions—functions that Ministers of the Crown exercised before the National Assembly gained full law-making powers following the 2011 referendum—that need to continue to be exercised by a Minister of the Crown solely. These are set out in paragraph 11 of new Schedule 7B to the Government of Wales Act 2006.

Turning to the draft order, the Government published an initial list of functions that we intended to transfer in October 2016. This list included functions contained in the draft order before us today. Let me give your Lordships two perhaps random but specific examples: first, the functions in the Lieutenancies Act 1997 for the Lord President of the Council to confirm that Her Majesty does not disapprove the appointment of a deputy lieutenant in Wales; secondly, the power in Section 38 of the Vehicles (Crime) Act 2001 for the Secretary of State to fund speed cameras. Since the publication of this list, the Office of the Secretary of State for Wales has worked closely with other UK government departments and with the Welsh Government to identify the further functions in devolved areas that should be transferred. The scale of this task should not be underestimated and has involved examining the entire statute book to identify the functions in devolved areas that need to be transferred. The draft order before the House is the culmination of this painstaking work, transferring functions to Welsh Ministers in a wide range of devolved areas, including those relating to school standards, environmental protection, animal welfare and fisheries. The draft order also transfers functions to Welsh Ministers in areas such as Assembly and local government elections, teachers’ pay and the community infrastructure levy to accompany the further legislative competence devolved to the national Assembly in these areas through the 2017 Act. I shall take each of these in turn.

The Wales Act 2017 delivers on commitments in the St David’s Day agreement to devolve responsibility for Assembly and local government elections to Wales. This order transfers functions in electoral legislation to Welsh Ministers for elections in Wales as far as those functions are within devolved competence, which is set out in the new Schedule 7A to the Government of Wales Act 2006. These functions include the power to make rules for the conduct of local elections in Wales and to hold pilot schemes to test any changes the Welsh Government may wish to make to how votes are cast and counted. During the passage of the Wales Act 2017, the Government brought forward an amendment to devolve the community infra- structure levy to Wales. This levy enables local authorities in England and Wales to raise funds from developers that can be used to support local infrastructure needs arising from new building projects in their areas. The order transfers functions in Part 11 of the Planning Act 2008 to enable Welsh Ministers to make regulations providing for the imposition of the levy in Wales.

Agreement was also reached between the UK and Welsh Governments during the passage of the Wales Act 2017 to devolve teachers’ pay and conditions to Wales. The order transfers functions in the Education Act 2002 to enable Welsh Ministers to decide the pay and conditions for teachers in Wales. However, teachers’ pensions remain a reserved subject. The Government have agreed the Welsh Government’s request that these functions be transferred on 30 September this year to allow the new arrangements to be put in place for the 2019-20 academic year. In addition, this draft order removes the requirement for Treasury consent from a number of functions currently exercised by Welsh Ministers, where that consent requirement is no longer appropriate. This means that Welsh Ministers will be able to, for example, make grants or loans to develop or promote the fishing industry in Wales under powers in the Fisheries Act 1981, without the need for Treasury Ministers to approve it.

Finally, the draft order delivers on one of the commitments made in the St David’s Day agreement to ensure there is a clear understanding of the UK Government and Welsh Government’s respective roles in relation to civil contingencies. It does so by establishing a more distinct boundary between the responsibilities of UK Ministers and those of the Welsh Ministers, separating out devolved and reserved responders and transferring co-ordinating functions for those devolved responders to the Welsh Ministers. In drafting this order, the Office of the Secretary of State for Wales has worked closely with colleagues across Whitehall and with its counterparts in the Welsh Government. I am pleased that the First Minister of Wales has approved the draft order.

The Welsh Government and the National Assembly for Wales have truly come of age. They are mature institutions and part of the fabric of Welsh political life. The new, clearer settlement put in place by the Wales Act 2017 fully realises this fact with historic further devolution that empowers the Welsh Government to deliver the things that really matter to the people of Wales, supporting the Welsh economy and delivering better devolved public services. The draft order completes this picture by transferring remaining Minister of the Crown functions in devolved areas to Welsh Ministers— functions which, if exercised sensibly, can make a direct and positive impact on the lives of people in Wales. I beg to move.

My Lords, I am more than grateful to the Minister for giving that introduction to these varied and multitudinous proposals before us. We can easily recognise what he says about the amount of hard work that has been done to achieve the scrutiny of previous legislation and bringing forward these 47 matters. It is a little disarming for me, having engaged just yesterday with the Minister on the future of theatres in the United Kingdom, to be engaging now with him on matters of detail pertaining to these legislative proposals. But that, as they say, is life.

It is interesting to me that the word “clarity” was used about the Wales Act 2017. Yes, there is a degree of clarity, but the adjective “clear” in its comparative form, “clearer”, may apply—but there is a lot of work to do to take it to an even better stage of comprehensibility lying ahead of us. It was very contentious at the time and many of its provisions need improving even now. For all that, it is a step along the way and, with all these discussions of devolution, a step along the way is as much as we can hope for sometimes, although these may be two steps along the way—and we must welcome them.

It has been good bedtime reading for me to know more about seeds and seals and salmon and sewerage and slaughterhouses and deputy lieutenants, put deliberately into that little mixture of things. I draw some opinion from reading about all that in welcoming the transfer of powers and the closer alignment of legislative competence exercised by the Assembly and executive competence exercised by Welsh Ministers. Once again, we are moving into a more coherent governance arrangement for the principality.

As for devolution, we cannot just look at what is proposed in these instruments without remembering the debates that we had up until yesterday on the European Union (Withdrawal) Bill, which, of course, beckon the consideration of a whole number of things that will take the discussion of competence, framework agreements, the internal market and so on further more comprehensively as we go along. What assessment has been made already in anticipation of the further steps that will need to be looked at as time goes by?

Then there is the question of teachers’ pay and conditions. Uncoupling the pay arrangements that are national and United Kingdom-wide to make this separate provision in Wales has not been without its difficulties, especially with the trade unions. We certainly do not want by this uncoupling to envisage a situation in which Welsh teachers, for example, might be paid less, with conditions more onerous than already obtain. But assurances have been given us, and a taskforce is being run in parallel with these arrangements to ensure that we can hope even for a betterment of conditions for teachers in Wales. We can note therefore that this has been contentious, so that we may keep an eye on developments in this area.

On ports, Milford Haven springs out from the detail as having particular details dependent on it, making it one of those areas that has a national, UK interest. Of course, it must do; after all, a huge percentage of our energy needs are met by imports of liquefied natural gas to that port. Perhaps I should just confess a particular local interest, as I come from south-west Wales, which I believe is in need of considerable economic regeneration, in the hope that we can balance the UK-wide pertinence of the way we look at the reserve powers alongside Milford Haven and its capacity to generate the economy of that part of south-west Wales. This will be a test case, indeed, for some of the things we have been talking about elsewhere in our recent considerations.

Civil contingencies again come to mind, with the response to emergencies and so on, and the role of co-ordinating such responses within the Principality, even when perhaps some of the emergency services will be drawn from across the border. It is an interesting thing to envisage and we shall, again, need to look at that very carefully as these things transpire.

On the question of elections, I shall do my last bit of cherry-picking or, as it were, bran-tub foraging, on these 47 provisions. It needs to be said that the rather optimistic spin, or the optimal spin, that the Minister put on it—that all is now clear, powers are where they need to be and everybody understands it—is a little wide of the mark if I have heard the views expressed from Wales correctly. It is felt that the transfer of functions is on a different basis from other provisions in this order and that, indeed, it will have to be looked at very carefully as we try to navigate what is in these measures and how things work out. Indeed, in Wales a form of words was I think proposed to the Government as part of their consideration of these matters, but the Government felt that what is here was adequate. Once again, we can look at all that as things transpire and see just how things really are.

All in all, since I have already, in an earlier exchange across the House, congratulated the Government on one set of decisions about gambling, I find myself wanting to give seven out of 10, but the rest needs to be looked at critically as time goes forward. But of course we will endorse this order as is appropriate.

My Lords, in introducing this order, the Minister talked about coming of age, and the noble Lord, Lord Griffiths, talked about two steps along the way; well,

“one step enough for me”—

I cannot view the “distant scene”. I rather regard it as a milestone in the transition towards full devolution. I congratulate those who have worked so hard in the Wales Office and the Welsh Government to put together this somewhat disparate list of functions.

What I do see in the future, if we find ourselves leaving the European Union—if—is a very considerable order, or series of orders, transferring powers currently exercised by the EU in Brussels to Welsh Ministers and indeed the parliament. I have tried to find out what the process is. I have looked at Clause 10 of and Schedule 2 to the withdrawal Bill; I do not understand it. I suggest to the Wales Office that it should produce some form of simple guide on what is envisaged and that, when it comes to the point—if it ever does—we should have some draft Orders in Council to consider well in advance of the Orders in Council being put forward for legislative purposes. It would be so much more helpful if we could see things in advance.

If I may dip into the bran tub, as the noble Lord, Lord Griffiths, puts it, I pull out the references to tribunals and inquiries. I have been engaged in my professional career in a number of very important inquiries and tribunals in Wales—I think in particular of the inquiries on the Dulais Valley and on the digging for gold in the Mawddach estuary and so on. I am relieved to see that the formulation of rules and conditions will now be in the hands of Welsh Ministers because, particularly on the issues concerning water, it is very important that Welsh people should have confidence in the process of a tribunal and the way in which it takes place.

The noble Lord, Lord Griffiths, referred in particular to teachers’ pay and conditions. I want to pause for a moment to think about that, because my friend and colleague Kirsty Williams, the Liberal Democrat Minister in the Welsh Administration, has made some startling steps forward in the field of student financial support, as she outlined this morning on the “Today” programme, which I think could provide a template for what might be done elsewhere in the United Kingdom. On teachers’ pay and conditions, she has risen to the challenge and, last December, announced that an independent task and finish group, chaired by Professor Mike Waters, would be put in place to review teachers’ pay and conditions and to consider how this structure,

“contributes to a highly motivated teaching profession and strengthens the delivery of a high quality education system”.

With the success of her approach to student finance, I am sure that she will do a brilliant job on this. She said in her statement in December:

“I have been clear … that being tied to the England system”—

of teachers’ pay—

“is no longer appropriate, relevant or to the advantage of the profession in Wales. Our system is based on the values of equity and excellence, a commitment to inclusive, public service education and to supporting our teachers to raise standards for all. Our Pay and Conditions system will enshrine these approaches and values”.

I know Kirsty well enough to know that she will again produce some remarkable advances in considering the structures of teachers’ pay. This order will give her the power to act in that appropriate way and I look forward to seeing how the order is used.

My Lords, the purpose of this order, as the Minister stated, is to transfer to Welsh Ministers executive functions currently exercised by the Minister of the Crown in areas where legislative competence is exercised by the National Assembly for Wales or has been devolved to the Assembly by virtue of the Wales Act 2017. It has 47 articles and two schedules, so it is impossible to go into all the detail, and I do not think we would expect the Minister to be able to do that either.

The order transfers a wide range of functions to Welsh Ministers in relation to, for example, agriculture, environmental protection, education, health, compulsory purchase orders and planning. Of course, I welcome that objective. However, my friends in the other place and indeed in the Assembly have grave reservations that the Wales Act 2017 largely fails to fulfil its own objectives. The 2017 Act suffers from two fatal flaws: it is a piece of legislation that has been both poorly conceived and poorly drafted, which results in failing to deliver a reserved powers model of devolution, as was originally intended. Indeed, it provides a system of devolution that not only is as cumbersome as its predecessors but is, in some important ways, even more restrictive and frustrating. In drawing up the list of those issues that will be reserved to London, Whitehall departments seem to have seized on every opportunity to reserve every power they might conceivably ever need in relation to Wales. Reservations have been piled on reservations to create a final schedule that is sprawling and lacking in any coherent logic. But even that was not enough for Whitehall. Just in case it had forgotten anything, the Act also reserved everything that “relates to” the list of reservation, thus further extending its reach.

It is for those reasons that my colleagues voted against the Bill both in the other place and the National Assembly. The ink had barely dried on the Wales Act 2017 before my colleagues were vindicated in these misgivings. The Welsh Government’s Trade Union (Wales) Bill, which was within the Assembly’s competence under the Assembly’s conferred powers model, covered industrial relations within the devolved public sector, but a signal arrived from the UK Government that the reserved powers model might be used rigidly to police what we in Wales cannot do when it comes to such legislation. While nothing eventually came from those UK government threats, the notion of Westminster overruling Welsh decisions became even more apparent.

Regarding the order that we are discussing today, of course its provisions may be partly repealed through the European Union (Withdrawal) Bill, so I would be interested to hear the Minister’s comments on that and confirmation on whether that process may happen. Brexit is exposing the weaknesses of the UK constitution, which is unfit for purpose in many ways and is lopsided and overcentralised. Many of the provisions in front of us today concern subject matters that may, in part, fall under the 24 areas that the UK Government have identified for legislative common frameworks and, therefore, are more likely to be affected by protection built into the EU withdrawal Bill as amended by this House last week. I understand that, until we have a clear indication from the Government how widely the proposed regulations will be drafted, or indeed how far the common frameworks that replace them will restrict the devolved policy areas with which the EU common frameworks currently interact, it might be difficult to say whether the provisions in this order will or will not be repealed, but the principle matters, particularly in relation to agriculture, fisheries and environmental functions. This will lead to ongoing uncertainty, which hinders good government. I certainly do not oppose the order, but I must warn the House that, inevitably, we shall be asked to return to these matters.

I thank all noble Lords for their contributions to this short debate and thank them for their broad welcome for the transfer of functions order. I note that the noble Lord, Lord Griffiths, described it as coherent governance for the principality—which is praise indeed, perhaps. The noble Lord, Lord Thomas of Gresford, stated that it was a milestone. The noble Lord, Lord Wigley, was probably less generous in his praise, but he said broadly that he would not oppose it—to that extent, perhaps, that is progress.

I shall attempt to answer the questions that were raised. On teachers’ pay and conditions, which the noble Lords, Lord Griffiths and Lord Thomas of Gresford, asked about, the first thing to say is that of course it is very much up to Ministers in Wales to decide the future level of pay and conditions. As the House may know, the Welsh Government are currently consulting on the future mechanism for teachers’ pay and conditions once the functions are transferred, so I cannot really comment any further. It is up to Ministers in Wales to decide in future, and hopefully that will have a good conclusion.

The noble Lord, Lord Griffiths of Burry Port, asked about Milford Haven. I agree with him that the port of Milford Haven is very important not just for Wales but for the United Kingdom. As he said, Milford Haven remains a reserved trust port, but the UK Government will continue to work closely with the Welsh Government and local communities, as they do now. However, it has to remain reserved and we do not envisage any change in terms of its role. It is much valued.

The subject of the EU was raised by a number of noble Lords, including the noble Lords, Lord Griffiths and Lord Wigley, and there was a specific question, which I will address, from the noble Lord, Lord Thomas. The frameworks are intended to capture only functions that are currently exercised at an EU level to ensure that the UK internal market continues to operate effectively once we have left the EU. Our preliminary analysis, published in March, sets out where frameworks may or may not be needed in respect of the 64 policy areas where EU law intersects with the Welsh devolution settlement. This analysis indicates that frameworks will be needed, in whole or in part, in only a small number of areas—those areas which we believe are vital to the efficient functioning of the UK internal market. The powers transferred through this order are currently exercised by Ministers of the Crown, not the EU, and will not form part of future UK frameworks.

The specific question that the noble Lord, Lord Thomas of Gresford, raised was about the mechanism. There will be no need for orders transferring EU powers, as the approach agreed by this House in what is now Clause 15 of the Bill devolves powers by default. The UK Government will bring forward regulations to identify areas where we need statutory UK frameworks. I hope that helps answer those questions.

I am not sure that I am understanding the Minister properly. Is he giving the House a categorical assurance that none—not one—of the 47 powers being transferred by this order will be clawed back or implicated by the rolling out of the 24 sections under the EU withdrawal Bill?

I am not giving that categorical assurance because this remains a work in progress—so I must stick to the lines that I have given on this subject.

The noble Lord, Lord Griffiths of Burry Port, spoke about the drafting of electoral provisions, stated that they had been transferred in rather a blanket fashion—I have some sympathy with his comments on this—and asked why we had not taken a slightly different approach. However, as the noble Lord said, given the significant number of functions that need to be transferred to Welsh Ministers to enable them to conduct Assembly and local government elections in Wales, listing them individually would be a time-consuming process and would make the order somewhat unwieldy. Listing the relevant Act in Schedule 1 to the order and transferring the functions as far as they are exercisable within devolved competence provides an appropriate balance, we believe, between clarity and brevity. Interestingly, it is also in line with the provisions in the Scotland Act 2016 that transferred the equivalent functions to Scottish Ministers.

I hope that the House will agree that the draft order delivers on the Government’s commitment to transfer the remaining Minister of the Crown functions to Welsh Ministers. We believe that it provides clarity—whether it is “clear” or “clearer” is another matter which is for the House to decide, but we believe that it is clear—over those statutory functions that will now be exercised by Welsh Ministers, as well as on how civil contingencies are co-ordinated between our two Governments. The order builds on that work, providing Welsh Ministers with the necessary functions to go along with the new settlement, and I commend it to the House.

Motion agreed.

My Lords, I beg to move that the House do now adjourn for 10 minutes to give time for the Front-Benchers to be here.

Sitting suspended.