Government of Wales Bill

I do not accept that an Order in Council converting framework powers into measure-making powers should be subject to the affirmative procedure in Parliament. The requirements already written into the Bill for Assembly approval, together with the negative procedure in Parliament, are sufficient. Framework powers giving wide powers to the Assembly to make subordinate legislation have been included in certain Bills that are before Parliament this Session; for example, the NHS Redress Bill. Parliament has the opportunity to scrutinise those framework powers as part of the legislative process relating to the Bill in which they are contained. The Government have made it clear during this legislative Session that they intend for these framework powers to be converted into measure-making powers so that they will remain powers for the Assembly to make legislation. Therefore Parliament’s scrutiny of these framework powers as part of the Bill’s process has been carried out with full awareness of the Government’s intention that they should, at a later date, be converted into measure-making powers. In this context, we feel there is no need for further scrutiny in Parliament at the point when an Order in Council is actually taken forward to convert the framework powers into Assembly measure-making powers. The necessary scrutiny will have been carried out as part of the process for scrutinising the Bill in which the framework power is contained. The House of Lords Delegated Powers and Regulatory Reform Committee supports our view that the negative procedure in Parliament is sufficient for an Order in Council converting the framework powers into measure-making powers. At paragraph 44 of its report on the Government of Wales Bill, the committee accepted that the negative procedure before Parliament, coupled with the affirmative procedure before the Assembly, is sufficient. The effect of Amendment No. 113, when read with Amendments Nos. 111 and 112, is that all Orders in Council under paragraph 29 of Schedule 11 will be subject to the affirmative procedure in Parliament. Amendment No. 113 specifically removes the provision in sub-paragraph (8) for Assembly approval of those Orders in Council under paragraph 29 which are not to do with converting framework powers into measure-making powers. By removing this provision, Amendment No. 113 makes all such Orders in Council subject to the affirmative procedure in Parliament. It is important to appreciate the likely content of the Orders in Council that are under consideration here. They are Orders in Council which provide, for example, for functions that would otherwise transfer to Welsh Ministers to transfer to the First Minister or Counsel General instead or, in the case of functions not related to making subordinate legislation, to the Assembly Commission or Assembly; or which direct that functions transferred to Welsh Ministers are exercisable concurrently with the First Minister, Counsel General, Assembly Commission or Assembly. It is unlikely that many such Orders in Council will need to be made. However, if such provision is required, we have the mechanism for dealing with this in paragraph 29. Sub-paragraph (5) provides that the consent of the persons most affected by such provisions—Welsh Ministers, the First Minister or Counsel General, who already exercise the relevant powers—must be obtained. In addition, sub-paragraphs (7) and (8) ensure that the decision to make the Order in Council is scrutinised by either the Assembly or Parliament. The functions concerned are those currently exercised by the Assembly and which are to be transferred to Welsh Ministers under the Government of Wales Bill. It seems right that the Assembly should be able to decide who might exercise these powers instead of Welsh Ministers. Therefore, if the Assembly feels able to approve the Order in Council transferring or making a direction in relation to the functions concerned, that should be sufficient for a recommendation to Her Majesty to make the Order in Council. I do not agree that Parliament should have sole responsibility for deciding whether such an Order in Council can be made and therefore I cannot agree to the removal of sub-paragraph (8). With the benefit of this explanation, I hope that the noble Lord, Lord Roberts, will feel able to withdraw his amendment.