HL Deb 07 July 2000 vol 614 cc1748-50

1.26 p.m.

Lord Bach rose to move, That the draft order laid before the House on 29th June be approved [24th Report from the Joint Committee].

The noble Lord said: My Lords, in moving the National Assembly for Wales (Transfer of Functions) (No.2) Order 2000, I should like, with the leave of the House, to speak also to the National Assembly for Wales (Transfer of Functions)(Variation) Order 2000. Perhaps I may speak to that latter order first.

The National Assembly for Wales (Transfer of Functions) (Variation) Order 2000, to which I shall refer as "the variation order", will help to secure the well-being and safety of children in schools in Wales by allowing the Secretary of State for Education and Employment to exercise concurrently with the Assembly the powers under Section 218(6) of the Education Reform Act 1988, to bar or restrict employment in the education sector. Historically the power to bar or restrict a person's employment in the education services in England and Wales was exercised exclusively by a unit of the Department for Education and Employment. The power in respect of Wales was transferred to the Assembly under the transfer of functions order 1999, but the need for the continued involvement of the DfEE's unit was recognised because of its expertise in the area and the fact that it would take some time for the Assembly to build up its own unit with similar experience.

A number of discussions have taken place between the Assembly and the DfEE with a view to identifying the best way to proceed. This variation order provides a solution that will allow the Department for Education and Employment's dedicated unit to tackle the outstanding Welsh cases and to bar or restrict people from employment in Wales as well as England. It will ensure that the DfEE's dedicated unit has the powers to ensure that cases are dealt with promptly and adequately throughout England and Wales without taking away the ability for the Assembly to take on this role in future if it becomes feasible.

As is required in Section 22(4)(b) of the Government of Wales Act, the National Assembly for Wales approved the variation order in a plenary session on 28th June this year.

I turn now to the National Assembly for Wales (Transfer of Function) (No. 2) Order 2000, which I shall refer to as "Transfer (No. 2)". That order includes the Assembly as an emanation of the Crown entitled to receive notice if a court regards a provision of secondary legislation as incompatible with a right under the Human Rights Act 1998, and is considering making a declaration to that effect. The Human Rights Act generally comes into effect on 2nd October this year, and it is proposed that Transfer (No. 2) will also come into effect on that day.

Section 5 of the Human Rights Act states that where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice. This is so that the Crown, which usually has ultimate responsibility for the legislation being considered by the court, can take part in the proceedings. This is particularly important as a declaration of incompatibility will be likely to lead to pressure for amendment legislation that is compatible with convention rights to be brought forward as soon as possible.

Subsection (2) of Section 5 of the Human Rights Act lists those emanations of the Crown entitled to receive notice. These are UK Ministers and the devolved administrations in Scotland and Northern Ireland. The National Assembly for Wales was not included in the list from the outset because it does not have primary legislative powers. However, the Assembly can of course make subordinate legislation, which may also be considered incompatible with the Human Rights Act by a court.

This proposed Transfer (No. 2) Order will bring the National Assembly within Section 5(2) of the Human Rights Act in relation to a court considering a declaration of incompatibility on subordinate legislation made in relation to Wales by the Assembly or by a UK Minister, if the Assembly could have made that subordinate legislation as well as the Minister. I commend the orders to the House.

Moved, That the draft order laid before the House on 29th June be approved [24th Report from the Joint Committee].—(Lord Bach.)

Viscount Bridgeman

My Lords, I support the order. On Question, Motion agreed to.