NHS Redress Bill [HL]

moved Amendment No. 50: Leave out Clause 17. The noble Earl said: My Lords, in Grand Committee we had a useful, although ultimately inconclusive, debate on Clause 17. The concerns which I raised at that time were related not so much to the principle of allowing the Welsh Assembly the power to formulate their own NHS redress scheme for Wales as to the constitutional propriety of devolving powers from Westminster in this manner; and the lack of clarity on the precise scope of the powers that are defined here. My starting point was the report published by your Lordships’ Delegated Powers and Regulatory Reform Committee, which stated:"““We consider that the power in clause 17 is so wide that, if conferred on a Minister of the Crown in relation to England, it would be inappropriate even if subject to affirmative procedure””." I remarked previously that that is a very strong and unequivocal statement. The answer given by the Minister—a point also made, very eloquently, by the noble Lord, Lord Rowlands—was that your Lordships’ committee had not compared like with like. The Minister stated that Clause 17 does not seek to transfer powers to Welsh Ministers; rather it seeks to transfer powers to the Welsh Assembly as a whole. The Welsh Assembly, as a democratically elected legislature, has extensive procedures for dealing with secondary legislation—procedures fuller and more rigorous than those that apply to secondary legislation at Westminster. I take that point. I also accept that framework powers of this general type were given the enthusiastic backing of the Richard commission as well as of the Assembly. These are no longer points of contention between us. The Minister also clarified in Grand Committee that this framework power is not in any way dependent on the reforms in the Government of Wales Bill, currently being debated in another place. The meeting that I had with her and her honourable colleague Mr Ainger did much to flesh out that issue, along with others. I thank them both for the helpful briefing that they jointly provided. Having said all that, I wish to focus on one further aspect of this matter. We have been asked to accept the reassurance that it will be the Welsh Assembly, rather than Welsh Ministers, who will be in a position to exercise the framework power in Clause 17; and the further reassurance that the granting of framework powers to the Assembly is independent of the reforms proposed in the Government of Wales Bill. Yet page 4 of the Explanatory Notes to the Government of Wales Bill states:"““Under the proposals . . . most of the statutory functions which currently are exercised in the name of the Assembly would formally become the responsibility of Assembly Ministers. The Assembly’s current order-making powers would in future generally be exercised by Ministers””." That concerns me. On the face of it, while it may be true that the framework power in Clause 17 is, strictly speaking, independent of the reforms in the Government of Wales Bill, that Bill would seem to have the potential to bring about the very situation envisaged by the committee chaired by the noble Lord, Lord Dahrendorf, when it voiced its criticism of this clause; namely the exercise by Assembly Ministers of inappropriately wide powers. The clause does not bring that about but, in combination with the Government of Wales Bill, it appears to be able to. I do not for a minute doubt the good faith of Ministers. Nevertheless, we need to have it squarely on the record that there is no question of the provisions of the Government of Wales Bill being used by the Assembly to confer broad framework powers on the Executive. Clause 17(4)(c) is the immediate safeguard against that happening; in layman’s language, this provision amounts to a bar on sub-delegating. But we understand from the letter sent by the noble Lord, Lord Warner, to the noble Lord, Lord Dahrendorf, that, under the Government of Wales Bill, framework powers such as this will be converted into so-called measure-making powers. Therefore, the bar on sub-delegation will fall away. Where does that leave us then? I should therefore be grateful if the Minister could reassure me—I know that she wishes to—about the way in which the powers being granted in this clause may ultimately be used and by whom. Notwithstanding anything contained in the Government of Wales Bill, I should like to hear her say that these broad powers will reside, and continue to reside, with the Welsh Assembly and that any powers to make subordinate legislation which the Welsh Assembly may in the future choose to grant to Welsh Ministers will be, and necessarily must be, on exactly the same footing as the power vested in English Ministers to make subordinate legislation; in other words, a power to lay secondary legislation that is specific and explicit in the way with which we are all familiar. I hope that she can give me that reassurance and that she will also understand why I have felt it right to labour these issues somewhat. I say again that I am in no way arguing against further devolution to Wales. I am simply seeking clarification of the extent of that devolution as embodied in the clause and an ambiguous explanation of where the powers granted in the clause are eventually to reside. I beg to move.