Local Government and Public Involvement in Health Bill

My Lords, I draw your Lordships’ attention to the Welsh dimension of the Bill, as I was invited to do by my noble friend on the Opposition Front Bench, Lady Hanham. I am glad to say that the noble Baroness, Lady Morgan, who opened the debate, also mentioned Wales in particular. I wish to speak about the constitutional aspect of the Welsh dimension, which involves the transfer of primary legislative powers from this Parliament to the National Assembly for Wales. The transfer is achieved in Clause 234, which simply states: "““Schedule 17 (powers of National Assembly for Wales) has effect.””" The effect of Schedule 17 is to add five ““matters”” to the ““field”” of local government where the Assembly may legislate under the terms of the Government of Wales Act 2006. That Act provides that measures passed by the Assembly—Assembly measures, as they are called—will have the same force as Acts of this Parliament. The first matter added by the schedule enables legislative change in, "““(a) the constitution of new principal areas and the abolition or alteration of existing principal areas, and""(b) the establishment of councils for new principal areas and the abolition of existing principal councils””." In short, we are talking about powers to create and abolish local authorities in a country where we already have single-tier authorities. Of course, in Wales there is no time limit as there is in England. That is only part of the first matter where legislative power is devolved. There are four more matters relating to local authorities where the Assembly may legislate: bye-laws, conduct of members and employees, community planning and partner authorities, and best value. Of course, local authorities in this context also embrace national parks, fire and rescue authorities and police authorities to a limited extent. These are substantial, radical powers to devolve in a minor clause and an obscure schedule. They are so minor and so obscure that I can find no mention of them or the powers that they transfer by any speaker at Second Reading of the Bill in another place on22 January this year. In addition, there was barely a mention in Committee or at Third Reading in the other place. Is it credible that the other place disposes of its powers with so little concern and without so much as a passing reference? Apparently it is. The disposal is, incidentally, as permanent as anything done by Parliament can be. The transfer of what are described as ““framework legislative powers”” has two precedents, and it will have yet another if the Further Education and Training Bill passes unscathed through the other place. What gives a certain dubious distinction to this Bill is its timing, coming before your Lordships, as it does, shortly after the 3 May election of a new Assembly in Wales. That Assembly is composed differently in membership and governance from its predecessor and is guided by a new, very shaky minority Labour Assembly Government with fresh powers derived from the 2006 Act. We are bound to ask whether the new Assembly has approved of the contents of the Bill. I doubt it; in fact, I am pretty sure that it has not. Therefore, the UK Government are proceeding on the basis of a consent given by the old, pre-election Assembly. Have the new Assembly Government approved of the contents of the Bill? I doubt that too; I doubt whether they have had time. True, the new Government have much the same faces as the old, but they have been shuffled into new jobs. Their powers are different too. There is no formal indication that these new bodies have approved the Welsh provisions in the Bill. So the UK Government are gratuitously bringing in these new powers to legislate over local authorities without so much as by leave of the new Assembly or its Government. I doubt whether they have the leave of the local authorities either. That is not so much devolution as imposition of powers. That is made clear in a memorandum from the Secretary of State to the Delegated Powers and Regulatory Reform Committee of your Lordships' House. I shall have more to say on that shortly. Furthermore, we have no real indication of what the new Assembly Government wish to do with those powers. We know from his memorandum what the Secretary of State thinks they might do with them, but there are no Assembly measures in the pipeline as far as we know. So we are, in effect, dishing out blank cheques for legislation. Another method whereby primary legislative power can be transferred to the National Assembly is by Orders in Council which grant legislative competence in specific areas. The procedure for the approval of such orders has been closely examined by the Welsh Affairs Committee in another place. The procedure has not yet been tried out and, such is its complexity, that I do not think anyone will be in a hurry to do so. But the procedure has the undoubted advantage that it provides for full discussion at every democratic level before a transfer of primary legislative power takes place. The Delegated Powers and Regulatory Reform Committee has examined the Welsh provisions with its customary thoroughness and I express my sincere appreciation and gratitude to it. The committee stated: "““Whether the particular matters listed in Schedule 17 to this bill should be the subject of enhanced legislative competence for the NAW is a matter of policy for the House””." Some of us would find it easier to decide that issue if there were a clearer indication of how the National Assembly for Wales Government intend to act when they have these powers. The Secretary of State for Wales has anticipated our difficulty and has included in his memorandum to the committee some hints on how the powers might be used. For example, with regard to the power that I quoted at the start of these remarks, the Secretary of State says it might be used, "““for voluntary or directed mergers of local authorities””." Unlike England, Wales does not have a sunset clause, but this is no more than a tantalising inkling of what is in store and comes from a Secretary of State who has only a marginal role in the devolved system compared with the First Minister of the Assembly Government. For all we know these powers may be used to amalgamate local authorities on a large scale. Once granted by Parliament, these powers cannot easily be withdrawn. I would therefore be grateful if the Minister who is to reply could tell us a little more about the likely application of these powers and provide better and stronger justification for their transfer than we have at present.