National Assembly for Wales (Legislative Competence) (Social Welfare) Order 2008

My Lords, I am extremely grateful to the noble Baroness for the most detailed and clear way in which she has explained the contents of the order. As for the context of the order, I believe that much of what I said on the previous order is relevant. I hope that as more and more of these orders come to this House there will not be a feeling that in some way or another one should legislate only at a minimum level. That would be to defeat the whole purpose of Part 3 of the Act and the whole tenor of Part 3 in relation to Part 4. If anybody asked me exactly what policy one should adopt, I would say an Icarus policy. Do noble Lords remember the story of Icarus? He and his father had been exiled on an island and the only way in which they could escape was by manufacturing large wings from birds’ feathers and beeswax. They had to fly not so high as to make the sun melt the wings and not so low as to run the risk of running into the sea. I think that that is the sort of approach that we should have in Wales. It should be constructive, substantial progress; it should not be too revolutionary, but on the other hand it should be well above a minuscule level that would have little significance. The content of the order is entirely reasonable. The area that it covers is charges by local authorities for non-residential care. It may be limited to domiciliary care or it may be wider than that; I am not sure from reading the draft order. Be that as it may, it seems obvious that the policies—not just in Wales but also elsewhere in the United Kingdom—of trying to treat people more and more in their homes and on as few occasions as humanly possible in hospital will increase in volume and become of greater significance with each passing year. Therefore, when we consider these charges levied by local authorities, we should allow them as much scope and flexibility as is reasonably possible, but at the same time try to achieve not a total uniformity but as much consistency as is reasonably justifiable, bearing in mind the different characters of different parts of Wales. Those principles are probably easier to articulate than they are to execute, but that is what the order does. The noble Lord, Lord Glentoran, worries about local government powers being reduced. I would say that local government powers here are extended in both directions. However, it is of course possible that, in practice, there might be a reduction. The only change that we will be bringing if the order is agreed is this: whereas before the Welsh Assembly, through its Ministers—the Assembly in the first instance and, since last year, through its Ministers—was able to give stern advice to local authorities, that advice had only to be morally regarded, not legally so. In some instances the local authorities might have gone contrary to the advice, but now they cannot because it is no longer advice but firm rules of a legislative nature. This order does not legislate. It does not create anything of itself. It is right that we should remind people in Wales, who are rather confused, exactly how Part 3 works. A legislative competence order made under Part 3 does not grant any authority to the Welsh Assembly. It gives the Welsh Assembly the ability, in one of the 20 fields—they are referred to as fields in Schedule 5—ranging from agriculture to the Welsh language, to designate an area of jurisdiction and legislative authority. If the Welsh Assembly does nothing about that, then nothing has been transferred. All that is transferred is a potential—a right to build on that part of the field, or a part of that part that has been designated. I hope that we will soon see Assembly measures following closely on legislative competence orders so that the Welsh people can see what is built by way of legislative authority in this connection. In that way, I believe that it will be possible for Part 3 to become something dynamic and creative. I hope that, one day, it will be a bridge to Part 4, once a referendum is successfully carried in Wales.