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Government of Wales Act 2006 (Amendment) Order 2019

Volume 799: debated on Monday 9 September 2019

Motion to Approve

Moved by

My Lords, this draft order amends the consent requirements in Schedule 7B to the Government of Wales Act 2006 in respect of electoral registration officers. It also makes clear how this amendment interacts with the provisions in the Welsh Ministers (Transfer of Functions) Order 2018 so that functions over EROs are transferred to Welsh Ministers.

There was a drafting error on an early version of the Order Paper today. For clarity, I confirm that this SI appeared before the JCSI on 4 September and no points were raised.

The UK, Welsh and Scottish Governments have committed to reforming the annual canvass process. These reforms will improve the ability of EROs to identify those properties where household composition has changed, allowing them to target resources towards those properties. Electoral registration officers are appointed under Section 8 of the Representation of the People Act 1983, and under the Welsh devolution settlement are classed as reserved authorities. This is because, while they exercise functions in relation to Assembly and local government elections in Wales that are devolved matters, they mainly exercise functions in relation to reserved polls.

Paragraphs 8 and 10 of Schedule 7B to the Government of Wales Act 2006 place restrictions on the Assembly’s ability to impose, modify or remove functions of reserved authorities without the consent of the UK Government. This means that while the National Assembly for Wales has legislative competence for Assembly and local government elections, it cannot modify the devolved functions of EROs without a Minister of the Crown’s consent. I assure noble Lords that this was not the Government’s intention. A small number of reserved authorities are carved out of the consent requirements because, like EROs, they exercise a mix of devolved and reserved functions. These include the Electoral Commission and the Food Standards Agency.

Article 2 of this order addresses that issue by adding EROs to the lists so that in future the Assembly can modify their devolved functions without needing the UK Government’s agreement to do so. Article 3 makes clear the effect of carving out EROs from the consent requirements on the Welsh Ministers (Transfer of Functions) Order 2018.

The 2018 order sought to transfer the remaining Minister of the Crown functions in devolved areas to Welsh Ministers. This includes all the functions within the devolved competence of the Assembly contained in the main pieces of electoral legislation. However, the effect of paragraph 12 of Schedule 7B to the Government of Wales Act 2006 is that the reference to the devolved competence of the Assembly in the 2018 order does not include an Assembly provision that would require the consent of a Minister of the Crown. Because of the consent requirements relating to EROs that I have already outlined, it therefore follows that Minister of the Crown functions that relate to the devolved functions of EROs did not transfer to Welsh Ministers through the 2018 order as intended.

This order therefore provides that powers to modify the devolved functions of EROs will be treated as transferring to Welsh Ministers under the 2018 order on the date that this order comes into force. This will enable Welsh Ministers to make the necessary regulations for the canvass reforms in respect of devolved polls. I welcome the positive engagement that has taken place with the Welsh Government in developing this order, which has also been laid before the National Assembly for approval. I beg to move.

My Lords, I welcome this measure. Before going into any detail, I welcome the noble Baroness to her Front-Bench post; we wish her well. We know that she has a tremendous interest in Wales, and I am sure she will stand up for Wales when there are battles that need to be fought. She has a challenging role in following the noble Lord, Lord Bourne, who undertook his responsibilities in an exemplary manner and gained the respect of the whole House. I wish her as much success as he had in fighting Wales’s corner, which can sometimes be an uphill struggle.

I listened carefully to the Minister’s introduction. It explained why the reaction in Wales I was getting was that these powers had already been identified as coming to us, or indeed had already come. The difficulties that have previously been experienced have been met by this order. As the presiding officer, the Welsh Government and the Assembly welcome the order, I of course support it this evening. However, the way the difficulties were addressed by the 2018 provisions underlines the complexity of the devolution model in Wales, with some things being devolved and others reserved. That mixture can lead to the sort of complications we are putting right tonight. It underlines the need for a clear-cut devolution model whereby things are either wholly with Wales or not, with no grey area that can lead to difficulties.

The 2006 Act, which the noble Lord, Lord Hain, was mainly responsible for getting through, was a very significant step forward in its day. I have previously congratulated the noble Lord on getting it through Cabinet, the House of Commons and this House. However, I think he would be the first to admit that requiring an order every time the National Assembly was going to legislate in every function—an order that could be blocked by a resolution in the House of Commons or by the unelected House of Lords—was not ideal. We have moved on from that, but we seem to have a little hangover from that period in the context of what we are discussing tonight.

Finally, that whole subject has a certain resonance for me. I am present in this Chamber only because of that model. As a party, we had never taken seats in the House of Lords. We changed that at the invitation of and under pressure from the Government of the day because, as we saw it—I think rightly at that time—it was quite invidious that the unelected House of Lords could block by order a legislative requirement of the elected Government of Wales. That is why I came here. That is why we were promised at that time that we would have three people in this Chamber—a promise that was never fulfilled by either Government. That may resonate in Wales tonight.

My Lords, I very much agree with the points the noble Lord, Lord Wigley, made. I too welcome the Minister to her role. I stress that the noble Lord, Lord Bourne, leaves big shoes to fill, because he spoke on Wales with an intuitive understanding and empathy from his long political experience. Despite our party differences, he spoke with real authority and I thought he was an exceptionally good Minister in this House. I wish the noble Baroness all the best in following that model.

My Lords, I add my voice in welcoming the noble Baroness, Lady Bloomfield, to her new position on the Government Front Bench. I look forward to working with her in the future on behalf of Wales.

I am grateful to the noble Baroness for her comments on this statutory instrument and to the Government for timing its passage through Parliament to allow it to conform with the Electoral Commission’s timetable for completion of voter material in association with canvass reform in Wales. This instrument is the result of the Government’s consultation towards the end of 2018 that sought responses to proposals for reform of the annual canvass and removes restrictions on the Assembly, bringing Wales in line with the rest of the UK. On these Benches, we are supportive of the devolution of further powers and responsibility to Wales and welcome this move to give the Welsh Assembly Government constitutional responsibility for their EROs.

The Welsh Government are bringing forward their own regulations to apply these reforms to their local government registers. Your Lordships will be aware that legislation is in its final stages in the Assembly to ensure that, when the next local government elections take place in Wales in 2022, 16 and 17 year-olds will be permitted to vote. These regulations will ensure that 14 year-olds and 15 year-olds, who will turn 16 during the period the register is in force, will be able to register to vote as attainers.

The overall aim of the reform is to deliver a more efficient system by which EROs maintain their electoral registers with no negative effect on citizens or the accuracy and completeness of the registers. The desire to modernise the system is understandable. The present mainly paper-based system is not an efficient use of public money with its potential for EROs needing to contact households up to four times during a canvass. Experience is showing that changes over the last few years, such as rolling registration, individual electoral registration and online registration have all had an impact on how the registers are maintained.

Where I do have misgivings about these reforms is in the lack of detail on the data-sharing mechanisms required to achieve the greater efficiency these proposals aim for and the lack of guidance on data handling. My misgivings began as a little niggle in the back of my mind but grew as I read an Electoral Commission report. I am grateful to the Electoral Commission for its recent report on the feasibility studies into the reforms which it carried out. In its final comments, the Commission points out its concerns, saying:

“The feasibility studies also highlighted a number of challenges that would need to be addressed before steps were taken to implement any of the reforms. These include the importance of undertaking detailed testing of potential new data sources (which would require a legal gateway) in order to determine whether the options would deliver beneficial and cost-effective results”.

Crucially, it adds:

“The reforms also raise broader public policy questions about data sharing, data protection and the limits of state intervention (particularly in relation to automatic registration) that require wider debate”.

Could the noble Baroness tell me when and where that debate will take place? Data sharing, data protection and the limits of state interventions are massive public policy questions which should be debated in Parliament. Will the Government bring forward further regulations to deal with these issues?

My Lords, I must add my voice to others who welcome the Minister to her position. We note that the gangway is wide enough for even the longest swords not to reach each other, so I trust that we will pursue business pertaining to all of us and for the betterment of Wales in perfect amity. I do not want to intimidate the noble Baroness with all that has been said about her predecessor, but I must add my voice to those who expressed their admiration for all that the noble Lord contributed on this and other issues. I hope she will not take that as pressure in any way, but an expression of gratitude and a real welcome to her in her new role.

This is such a simple matter, but it arises from what the noble Lord, Lord Wigley, said about the complicated model that allows some activities within a related set to be on the reserved list and some not. In Wales we have not only a word but a way of saying it; this will make everything “tidy”, will it not? Presently, the right to oversee elections at local level and to the National Assembly is devolved to the Assembly, but all other elections are subject to the reserved list and they have no similar autonomy. This brings everything together and is logical.

I am glad that this has happened in response to the stimulus from similar exercises being undertaken by other devolved Governments; we wish that the devolved Government of Northern Ireland were fully party to these conversations, instead of things having to be dealt with in a different way for Northern Ireland. This electoral list exercise that is being undertaken in the hope that everything will be brought together by 2020 really puts the pressure on to get these things tidied up. The things that the noble Baroness, Lady Humphreys, referred to as needing to happen will be facilitated by this, but even more needs to happen to get some of the things that she properly alluded to.

So those powers that now come together under the authority of the devolved Government of Wales and the powers that Ministers will have in the Welsh Assembly without having to resort to Ministers and the Government here in Westminster are both welcome developments. The noble Lord, Lord Wigley, says that three Plaid Cymru Members were promised, but I cannot imagine for a moment three Lord Wigleys. One really is enough. For all that, in terms of the contribution that he makes, not just to subjects related to Wales but across the entire spectrum of considerations that are before us, it is good that his party is represented and would that it were even better represented. I will just leave that with the noble Baroness.

The Explanatory Memorandum that has come to me from Cardiff, under the considerations that relate to the policy objectives to be achieved and enhanced by the measures before us, signs off with a sentence that I find intriguing and bewildering. It says, “The remaining provisions”, without stipulating what they might be,

“would need to be made as part of the UK legislative proposals which would see the necessary statutory changes sitting within two separate SIs”.

I have done lots of examination papers in my life. If we had the word “discuss” at the end of that sentence, I wonder what the noble Baroness would have to say. It is a bit of gobbledegook but at the heart of it there may be something that we need to take note of before we approve this statutory instrument. But in terms of the general provisions, there is no hesitation on our part from this side of the House and we wish the noble Baroness well with her first electoral triumph, which she is bound to have on this occasion.

I thank noble Lords for their valuable contributions to the debate this afternoon and for their kind words of welcome and encouragement. I am conscious that I do indeed have very large boots to fill following the departure of my noble friend Lord Bourne. All I can say is that I shall do my best.

I am glad that we have been able to tidy up this bit of legislation through the introduction of this SI. It is right that we learn from the experience of all the devolved Governments and I will take note of the comments of the noble Lord, Lord Griffiths of Burry Port. The order adds EROs to the lists of reserved authorities which are excepted from the consent requirements in paragraphs 8 and 10 of Schedule 7B to the Government of Wales Act 2006. In doing so, it will enable the Assembly to modify the functions of EROs in devolved areas in future without needing the agreement of the UK Government to do so. In line with this, it also alters the scope of devolved competence under the Welsh Ministers (Transfer of Functions) Order 2018 so that Minister of the Crown functions in relation to devolved ERO functions will transfer to Welsh Ministers. This will enable the Welsh Ministers to implement reforms to the annual canvass process in respect of devolved polls.

I acknowledge the concerns of the noble Baroness, Lady Humphreys, on data-sharing mechanisms. The new canvass model will incorporate a data step where the electoral register will first be matched against DWP and local data sources such as council tax. The Cabinet Office has consulted the Electoral Commission on the canvass reform proposals. We welcome its positive response and we will work closely with it as the canvass reforms move forward to address any such issues. As for when and where the debate will take place, I will need to get back to noble Lords on that point.

Lastly, I too would love to see more Welsh voices on these Benches but I welcome the productive work with the Welsh Government in preparing this order and I commend it to the House.

Motion agreed.