Government of Wales Bill

My Lords, I am grateful to my noble friend Lord Rowlands for tabling Amendment No. 43, which gives us the opportunity to discuss some of the very important issues that he raised in Committee. I hope that I shall be able to reassure him and the noble Lord, Lord Thomas of Gresford. It may be helpful if I begin by restating the key differences between Part 3 of the Bill, dealing with Assembly measures, and Part 4, which concerns primary legislative powers for the Assembly, without reigniting some of the discussions that we had before the dinner break. Part 1 of Schedule 5 to the Bill sets out the framework for the legislative competence of the Assembly under Part 3. It lists fields, which are broad policy areas corresponding to the existing responsibilities of the Assembly. The fields themselves do not confer any legislative competence on the Assembly; they merely indicate the areas in which it may acquire legislative competence. What is more, under Part 3 of the Bill, the Assembly will not be able to gain legislative competence over a whole field at a time. It could not, for example, bid for legislative competence over ““Local Government”” or ““Housing””. Instead, the Assembly will have to identify a specific matter on which it wishes to seek legislative competence. A ““matter”” is a defined piece of legislative competence. The only matters that are currently inserted in Schedule 5 are under field 13, ““National Assembly for Wales””; matter 13.1 for example is the,"““creation of, and conferral of functions on, an office or body for and in connection with investigating complaints about the conduct of Assembly Members and reporting on the outcome of such investigations to the Assembly””." The mechanism in Part 3 for adding a matter to Part 1 of Schedule 5 is an Order in Council. Parliament will consider each Order in Council and so decide on a case-by-case basis whether the Assembly should be granted the particular legislative competence being sought. The scope of the legislative competence in each case will be defined by the wording of the matter. Pre-legislative scrutiny of a proposed Order in Council will provide Parliament and the Assembly with the opportunity to examine the scope of the legislative competence being sought and to propose changes to the Order in Council which would either clarify or alter it. I have previously provided to the House, as we heard from my noble friend, a mock Order in Council covering provisions under the Transport (Wales) Act 2006. My noble friend commented, and repeated this evening, that it was not clear from the wording of the ““matter”” in the mock Order in Council that it would enable the Assembly to provide financial assistance to the providers of air services. It may help if I clarify that the mock Order in Council covers only local authority transport functions which correspond to Sections 1 to 6 of the Transport (Wales) Act 2006. It would of course be possible to include the provision of financial assistance to providers of air services as a matter within the order. Indeed, that is precisely the sort of issue that should be considered from the earliest stages, when the proposed Order in Council is being worked up, through to the finalisation of the draft Order in Council to be laid before the Assembly and Parliament. These proposals for Orders in Council will be prepared by the Assembly on the basis of an analysis of what it wants to be able to do and that it cannot do under existing legislation and within its existing powers. That will be the basis on which the ““matter””, which will define the scope of the legislative competence, will be drafted. When seeking an Order in Council, the Assembly will set out what it wants legislative competence for. The ““matter”” in the Order in Council will be drafted accordingly in consultation with the Secretary of State, who will ensure that pre-legislative scrutiny of a proposed Order is informed by that explanation. It will then be for Parliament to judge both whether it is appropriate for the Assembly to have that competence and whether it is correctly defined to cover what provision the Assembly wishes to be able to make by an Assembly measure. Clearly Parliament may ask for as much information as it thinks necessary during pre-legislative scrutiny of any proposed Order in Council. To those who have expressed concerns that the new Order in Council procedure might be used to give the Assembly primary powers through a back door, I would ask them to reflect on this clear distinction between Parts 3 and 4. I would draw their attention to the words of the Secretary of State for Wales, who said when opening the Second Reading debate on this Bill in another place:"““If the Assembly ever attempted to acquire such powers by the back door, I as Secretary of State would block it, so would this House and so would the Lords. It is inconceivable because there is a triple lock to prevent it. Parliament remains in charge””.—[Official Report, Commons, 9/1/06; col. 39.]" Finally, turning to the specific wording of my noble friend’s amendment, I am afraid that we could not support it because the term ““principal reasons”” suggests that the competence would always have to be defined only to achieve a particular policy objective. Given that the competence would be granted on an enduring basis, it will usually need to be defined so as to enable policies to be adapted or altered within the scope of the legislative competence granted. Otherwise, the Assembly might have to return to Parliament to seek further legislative competence every time it wanted to amend its own legislation, which is obviously not the intention. However, I can confirm the basic premise that these are ““powers for a purpose”” and that they will be granted only on a case-by-case basis where it is agreed that it is right for the Assembly to be able to legislate on that matter. I apologise for speaking at length but this is a very important issue. I hope that with the benefit of this explanation my noble friend will feel able to withdraw his amendment.