Welsh Ministers (Transfer of Functions) Order 2018

Lord Griffiths of Burry Port Excerpts

Thursday 17th May 2018 Lords Chamber

[Viscount Younger of Leckie (Con)]

My Lords, the order we are debating this afternoon transfers the remaining Minister of the Crown functions in devolved areas to Welsh Ministers.

I start by giving some background on the order. Noble Lords will recall the Wales Bill taken through this House so ably by my noble friend Lord Bourne of Aberystwyth. That Bill—now, of course, the Wales Act 2017—implements the Government’s commitments in the St David’s Day agreement to a clearer devolution settlement for Wales, based on the firm foundations of a reserved powers model. The new model, which came into force on 1 April, delivers greater clarity over the powers and responsibilities of Parliament and those of the National Assembly for Wales.

The Wales Act 2017 also strengthens Welsh devolution by devolving significant further powers to the National Assembly for Wales. Many of these powers also came into force on 1 April, meaning that the Assembly can now decide, for example, how its Members are elected, the speed limits on Welsh roads and how taxis in Wales are regulated. During the passage of the Act, the Government committed to making clear through that Act and associated secondary legislation how the remaining Minister of the Crown functions in devolved areas would be exercised in future.

Unlike in Scotland, there has never been a general transfer of Minister of the Crown functions in devolved areas to Welsh Ministers. The different history and geography of Wales compared to Scotland, and the greater interaction cross-border, means that it has been more appropriate to transfer functions in specific areas. This strategy leads to us making clear the specific functions that have been transferred and therefore the substance of Welsh Ministers’ executive competence.

New Schedule 3A to the Government of Wales Act 2006, inserted by Schedule 4 to the Wales Act 2017, sets out the statutory Minister of the Crown functions in devolved areas that are exercised concurrently or jointly with Welsh Ministers. There is also a handful of so-called pre-commencement functions—functions that Ministers of the Crown exercised before the National Assembly gained full law-making powers following the 2011 referendum—that need to continue to be exercised by a Minister of the Crown solely. These are set out in paragraph 11 of new Schedule 7B to the Government of Wales Act 2006.

Turning to the draft order, the Government published an initial list of functions that we intended to transfer in October 2016. This list included functions contained in the draft order before us today. Let me give your Lordships two perhaps random but specific examples: first, the functions in the Lieutenancies Act 1997 for the Lord President of the Council to confirm that Her Majesty does not disapprove the appointment of a deputy lieutenant in Wales; secondly, the power in Section 38 of the Vehicles (Crime) Act 2001 for the Secretary of State to fund speed cameras. Since the publication of this list, the Office of the Secretary of State for Wales has worked closely with other UK government departments and with the Welsh Government to identify the further functions in devolved areas that should be transferred. The scale of this task should not be underestimated and has involved examining the entire statute book to identify the functions in devolved areas that need to be transferred. The draft order before the House is the culmination of this painstaking work, transferring functions to Welsh Ministers in a wide range of devolved areas, including those relating to school standards, environmental protection, animal welfare and fisheries. The draft order also transfers functions to Welsh Ministers in areas such as Assembly and local government elections, teachers’ pay and the community infrastructure levy to accompany the further legislative competence devolved to the national Assembly in these areas through the 2017 Act. I shall take each of these in turn.

The Wales Act 2017 delivers on commitments in the St David’s Day agreement to devolve responsibility for Assembly and local government elections to Wales. This order transfers functions in electoral legislation to Welsh Ministers for elections in Wales as far as those functions are within devolved competence, which is set out in the new Schedule 7A to the Government of Wales Act 2006. These functions include the power to make rules for the conduct of local elections in Wales and to hold pilot schemes to test any changes the Welsh Government may wish to make to how votes are cast and counted. During the passage of the Wales Act 2017, the Government brought forward an amendment to devolve the community infra- structure levy to Wales. This levy enables local authorities in England and Wales to raise funds from developers that can be used to support local infrastructure needs arising from new building projects in their areas. The order transfers functions in Part 11 of the Planning Act 2008 to enable Welsh Ministers to make regulations providing for the imposition of the levy in Wales.

Agreement was also reached between the UK and Welsh Governments during the passage of the Wales Act 2017 to devolve teachers’ pay and conditions to Wales. The order transfers functions in the Education Act 2002 to enable Welsh Ministers to decide the pay and conditions for teachers in Wales. However, teachers’ pensions remain a reserved subject. The Government have agreed the Welsh Government’s request that these functions be transferred on 30 September this year to allow the new arrangements to be put in place for the 2019-20 academic year. In addition, this draft order removes the requirement for Treasury consent from a number of functions currently exercised by Welsh Ministers, where that consent requirement is no longer appropriate. This means that Welsh Ministers will be able to, for example, make grants or loans to develop or promote the fishing industry in Wales under powers in the Fisheries Act 1981, without the need for Treasury Ministers to approve it.

Finally, the draft order delivers on one of the commitments made in the St David’s Day agreement to ensure there is a clear understanding of the UK Government and Welsh Government’s respective roles in relation to civil contingencies. It does so by establishing a more distinct boundary between the responsibilities of UK Ministers and those of the Welsh Ministers, separating out devolved and reserved responders and transferring co-ordinating functions for those devolved responders to the Welsh Ministers. In drafting this order, the Office of the Secretary of State for Wales has worked closely with colleagues across Whitehall and with its counterparts in the Welsh Government. I am pleased that the First Minister of Wales has approved the draft order.

The Welsh Government and the National Assembly for Wales have truly come of age. They are mature institutions and part of the fabric of Welsh political life. The new, clearer settlement put in place by the Wales Act 2017 fully realises this fact with historic further devolution that empowers the Welsh Government to deliver the things that really matter to the people of Wales, supporting the Welsh economy and delivering better devolved public services. The draft order completes this picture by transferring remaining Minister of the Crown functions in devolved areas to Welsh Ministers— functions which, if exercised sensibly, can make a direct and positive impact on the lives of people in Wales. I beg to move.

[Lord Griffiths of Burry Port (Lab)]

My Lords, I am more than grateful to the Minister for giving that introduction to these varied and multitudinous proposals before us. We can easily recognise what he says about the amount of hard work that has been done to achieve the scrutiny of previous legislation and bringing forward these 47 matters. It is a little disarming for me, having engaged just yesterday with the Minister on the future of theatres in the United Kingdom, to be engaging now with him on matters of detail pertaining to these legislative proposals. But that, as they say, is life.

It is interesting to me that the word “clarity” was used about the Wales Act 2017. Yes, there is a degree of clarity, but the adjective “clear” in its comparative form, “clearer”, may apply—but there is a lot of work to do to take it to an even better stage of comprehensibility lying ahead of us. It was very contentious at the time and many of its provisions need improving even now. For all that, it is a step along the way and, with all these discussions of devolution, a step along the way is as much as we can hope for sometimes, although these may be two steps along the way—and we must welcome them.

It has been good bedtime reading for me to know more about seeds and seals and salmon and sewerage and slaughterhouses and deputy lieutenants, put deliberately into that little mixture of things. I draw some opinion from reading about all that in welcoming the transfer of powers and the closer alignment of legislative competence exercised by the Assembly and executive competence exercised by Welsh Ministers. Once again, we are moving into a more coherent governance arrangement for the principality.

As for devolution, we cannot just look at what is proposed in these instruments without remembering the debates that we had up until yesterday on the European Union (Withdrawal) Bill, which, of course, beckon the consideration of a whole number of things that will take the discussion of competence, framework agreements, the internal market and so on further more comprehensively as we go along. What assessment has been made already in anticipation of the further steps that will need to be looked at as time goes by?

Then there is the question of teachers’ pay and conditions. Uncoupling the pay arrangements that are national and United Kingdom-wide to make this separate provision in Wales has not been without its difficulties, especially with the trade unions. We certainly do not want by this uncoupling to envisage a situation in which Welsh teachers, for example, might be paid less, with conditions more onerous than already obtain. But assurances have been given us, and a taskforce is being run in parallel with these arrangements to ensure that we can hope even for a betterment of conditions for teachers in Wales. We can note therefore that this has been contentious, so that we may keep an eye on developments in this area.

On ports, Milford Haven springs out from the detail as having particular details dependent on it, making it one of those areas that has a national, UK interest. Of course, it must do; after all, a huge percentage of our energy needs are met by imports of liquefied natural gas to that port. Perhaps I should just confess a particular local interest, as I come from south-west Wales, which I believe is in need of considerable economic regeneration, in the hope that we can balance the UK-wide pertinence of the way we look at the reserve powers alongside Milford Haven and its capacity to generate the economy of that part of south-west Wales. This will be a test case, indeed, for some of the things we have been talking about elsewhere in our recent considerations.

Civil contingencies again come to mind, with the response to emergencies and so on, and the role of co-ordinating such responses within the Principality, even when perhaps some of the emergency services will be drawn from across the border. It is an interesting thing to envisage and we shall, again, need to look at that very carefully as these things transpire.