§ 9.8 p.m.
§ Baroness Farrington of Ribbleton:
My Lords, I beg to move the first Motion standing in my name on the Order Paper.
This order corrects a number of omissions and deficiencies in the first order that your Lordships debated last year. It does not depart from the principle that the Assembly should assume the functions of the Secretary of State for Wales; indeed it fulfils that principle. The order mostly transfers functions to the Assembly which were inadvertently left out of the first order. The remaining provisions transfer functions which should not have gone to the Assembly back to the UK Government.
I shall cover some of the key points in the order now. If noble Lords have particular queries, I shall seek to deal with those in closing the debate. The order transfers to the Assembly many more functions than it transfers back to Ministers. Some of these, such as those contained in regulations implementing the common agricultural policy, are straightforwardly for the Assembly. It should have these functions as part of its overall responsibility for agriculture in Wales. Others came too late for the first order, for instance, 489 the functions in the Tax Credits Act 1999 of approving childcare providers in respect of which families can claim a tax credit. The order rightly transfers all these functions to the Assembly.
The order also transfers a small number of functions back to Ministers from the Assembly. In each case they deal with matters which were never the responsibility of the Secretary of State for Wales and thus ought not to be for the Assembly. Perhaps the most important example relates to the Mental Health Act 1983. The first transfer order inadvertently transferred to the Assembly my right honourable friend the Home Secretary's powers in the Mental Health Act 1983 to authorise the detention of criminals and remand prisoners in secure hospitals. The Assembly has no expertise in this area and since the transfer the Home Office has been exercising these functions on its behalf under an agency agreement. The order restores the correct position by transferring the functions back to my right honourable friend the Home Secretary.
I hope that the examples that I have chosen serve to illustrate the kind of technical changes this order seeks to make. As I say, I shall endeavour to deal with any further queries during the debate or in closing it. This order should not be contentious. The Assembly has already unanimously agreed to the draft and I urge your Lordships to do the same.
Moved, that the draft order laid before the House on 20th January be approved [7th Report from the Joint Committee].—(Baroness Farrington of Ribbleton.)
§ Lord Roberts of Conwy
My Lords, it is always salutary for the Government to admit the error of their ways, and that is what this order amounts to. I am glad that the noble Baroness has come to this "confession box" that is Parliament to talk about the errors and omissions that have now been corrected.
I am bound to say that we suspected that the original order would contain some errors and omissions which are now corrected in the present draft order. I have listened carefully to the Minister and have read the speech of Mr Paul Murphy, the Secretary of State for Wales, to the 5th Standing Committee on delegated legislation on 31st January at col. 3 of Hansard for the other place. Having said that the first order has been found to contain mistakes, he went on to say that,the errors in the first order have not caused any significant disruption to public services or the business of government here"—presumably, that is Whitehall,or in Cardiff. Where necessary, I or my colleagues have entered into agency agreements with the Assembly to discharge functions that were inadvertently transferred or to allow the Assembly to discharge functions that were inadvertently not transferred. The order formalises that position".That paragraph is quite revealing in that it shows just how easy it is for the Government to circumvent the normal procedures laid down in legislation. I would hope that the Government would take immediate steps in those circumstances to inform Parliament of the alternative action that they are taking; that is, the agency arrangements.
490 I do not want to belabour the point but the danger is obvious—namely, that some future government, or some future Secretary of State with less integrity than Mr Murphy, might seek to avoid the controversial Transfer of Functions Order by means of an agency agreement. I sincerely hope that the Government will give careful consideration to this issue and let us know the outcome in due course.
Technical though this order appears to be, it deals with matters of considerable importance. It gives the Assembly full control over common agricultural policy matters in Wales, including payments under the beef special premium scheme. Bearing in mind the parlous state of Welsh agriculture and the fact that average net farm incomes have gone down by some 25 per cent this year on last, we may well be justified in debating that particular part of the order. It also has a bearing on the Assembly's powers to ban trials of genetically modified crops in Wales and gives the Assembly power to act independently of the Ministry of Agriculture, Fisheries and Food. That is a highly controversial area.
Other matters covered relate to child care providers and their approval so that families can claim tax credit. There is also the vexed subject of water supply on the borders. I am glad to see that the position is clarified. We certainly welcome that.
All those subjects and others could be debated at length. We may do so at some future date, but probably not this evening. We have that right, affirmed on our behalf by the memorandum of understanding issued by the Lord Chancellor last year.
I am intrigued by another point made by the Secretary of State to the Standing Committee on delegated legislation, where he said in col. 4 of Hansard that other functions transferred, one way or the other, under the Tax Credit Act 1999,deal with the taxation and benefit systems and are properly matters for my Ministerial colleagues".In other words, he could not speak about those matters. Can the Minister, who answers here for the Government as a whole, tell us a little more about those matters under the Tax Credit Act 1999. I was not aware that the Assembly could be involved in tax matters, but it clearly is, tangentially at least.
The National Assembly, which dealt with this order briefly and formally under a severe time restraint, approved the order in a matter of minutes. That may be admirable celerity, but it means that your Lordships would be justified in pausing a while as we bandy these powers about within the Government. Your Lordships would be quite entitled to do so, although I personally refrain from delving too deeply into the specific areas referred to in the order.
§ Lord Thomas of Gresford
My Lords, it is encouraging to see that powers to deal with the common agricultural policy are transferred to the Welsh Assembly. I was particularly interested in the Sheep and Goats (Removal to Northern Ireland) Regulations. I wondered whether perhaps the Criminal Justice (Mode of Trial) Bill had somehow 491 found itself to the Welsh Assembly. I also note that the Sludge (Use in Agriculture) Regulations are now within the compass of that body.
It was to be expected that the Welsh Assembly would have teething problems, but what it is facing at the moment is raging toothache. We argued long and hard that the Welsh Assembly should have powers of primary legislation, clearly defined, so that it can formulate policy and put it into effect. The problems about which I, on behalf of the Liberal Democrats in this House, warned of at length have now come to pass.
There is no devolution of discrete functions within government. The legislative muddle which this order illustrates, I am afraid, derives from the fact that the areas of government responsibility remain divided between Westminster and Cardiff. As the noble Lord, Lord Roberts of Conwy, pointed out, it is not good enough that these regulations should be placed before the Assembly for a minute or two of consideration before coming to your Lordships' House for further discussion.
The current crisis in the Welsh Assembly, which comes to a head tomorrow, arises out of the refusal of the Labour Government to let go; to give the Assembly its head in policy matters and to give adequate funds to back it. I give credit to Mr Blair and to Mr Brown for negotiating in Berlin £1.2 billion of European money for Objective 1 funding for the Valleys and West Wales, but it arises out of a recognition that incomes in those areas are less than 75 per cent of the European average. It is our poverty that qualifies us for that support, not our political management. The refusal of Westminster to give assurances of matched funding leaves Wales still at the bottom of the pile.
If the Westminster new Labour Government want their Welsh administration to survive tomorrow, they must come up with new money. If they do not, Europe will keep its cash and devolution will to that extent have failed; it will have suffered a severe blow. Unhappily, Mr Michael's political failure in Wales has been to appear to represent Whitehall in Wales instead of Wales in Whitehall. Wales needs a street fighter who, with the goodwill of the whole Welsh Assembly, will fight Wales's corner with the Treasury. Perhaps that point verges a little way from the theme of the order, but we on these Benches have those thoughts because we are so concerned for the success of devolution in Wales.
§ Baroness Farrington of Ribbleton
My Lords, the order is a technical measure designed only to correct deficiencies in the devolution settlement as it stands. It does not alter the basic principles. It is extremely important that we recognise the enormity of the task undertaken by officials in identifying the complex areas that needed to be identified as part of the transfer.
492 The noble Lord, Lord Roberts, raised the issue of the order removing the requirement for the Assembly to act jointly with MAFF in approving trials of genetically modified crops. That is a purely technical change. MAFF has never taken an active role in decisions in Wales, as the noble Lord is aware. I should stress that it does not change the legal position regarding the Assembly's powers. The noble Lord recognised also that the position with regard to water has been clarified.
The noble Lord asked about the position regarding tax credits. The Assembly has no function regarding taxation or benefits. Its only function under the legislation is to approve childcare powers, in respect of which it may then bring down a tax credit. It is an approval of the mechanism rather than anything else. The noble Lord asked about agency agreements. They were debated in the House under Section 41 of the Government of Wales Act 1998.
The noble Lord, Lord Thomas of Gresford, rightly commented that changes were having to be made. I am sure that I do not need to remind him of the size of the order. Compiling it involved painstaking effort by almost every Whitehall department for about 18 months. It is regrettable that the first order was found to contain mistakes, but I am sure that he will agree that the number of occasions in your Lordships' House when we debate the issue of to which Secretary of State a piece of legislation refers makes this quite a difficult task.
The noble Lord referred to the Assembly being allowed only a few moments to consider the draft order. That is rightly a matter for the Assembly to determine and one on which it would be improper for me to comment. The noble Lord referred also to the issue of matched funding to ensure that the people of Wales receive funds that were hard fought for. I assure the noble Lord—I am sure he will agree—that European funding is not attracted to a country without that country's government putting forward the best possible case. We shall not let down the people of Wales. We have given an assurance that funding will be available as necessary from the public sector and as appropriate to meet the areas where it is needed. I would say to him—I am sure noble Lords will agree—that one cannot have a comprehensive spending review if then various parts of it, however likely the outcome, are divulged in advance of the total comprehensive spending review. With those assurances, I hope that noble Lords will feel happy to support the order.
§ Lord Roberts of Conwy
My Lords, before the noble Baroness sits down, perhaps I may say how grateful we are to her for her reply to this short debate. But will she look rather carefully at what I said about the agency agreements when they substitute for a proper order? There must be cause 493 for concern, because it is a way in which the Government can avoid an error which has occurred in a previous order.
§ Baroness Farrington of Ribbleton
My Lords, I certainly undertake to look most carefully at that point and will write to the noble Lord should the occasion prove necessary.
§ On Question, Motion agreed to.