HL Deb 04 November 2004 vol 666 cc462-70

1.15 p.m.

Lord Evans of Temple Guiting rose to move, That the draft order laid before the House on 11 October be approved [30th Report from the Joint Committee].

The noble Lord said: My Lords, the draft National Assembly for Wales (Transfer of Functions) Order 2004 must be made by Order in Council following approval of the draft order by both Houses of Parliament. That is why this short and, I hope, uncontentious order is before the House today. All political parties in the Assembly have agreed policy on these issues.

Turning to the draft order, five functions will be transferred as a result of the approval of the draft order by this House. First, the most significant transfer to be effected by this order is the transfer to the Assembly of those animal health and welfare powers which at present remain with the UK Government.

The case for this transfer has its genesis in the outbreak of foot and mouth disease in 2001 which gave rise to some practical difficulties and public confusion about who was responsible for controlling the disease. This brought into sharp focus the contradiction between the political accountability which the Assembly assumed in this matter for which it did not have legal responsibility.

The order will simplify matters by ensuring that the Assembly has clear legal accountability for all animal health and welfare matters. It will enable the Assembly to act and make secondary legislation across the range of the Animal Health Act and related provisions, and thus give the Assembly a comparable level of responsibility for subordinate legislation as already exists in Scotland.

Briefly, the order identifies the following general powers for transfer: orders to control animal disease; cleansing and movement of animals; transport of animals, including import and export; slaughter and disposal of animals; licensing of slaughterhouses; prevention and eradication of certain diseases in sheep; control of pests and diseases affecting bees; and imposition of levies and compensation related to diseases in pigs.

We must remind ourselves that disease is no respecter of boundaries. While the proposed transfer provides for greater scope for independent action, I can assure the House that the Assembly is committed to working within the GB-wide disease control area. It recognises that whatever action is taken in Wales needs to fit in with what is happening elsewhere in Great Britain. Indeed, as an example of this commitment, the Assembly has worked tirelessly with the UK Government and the Scottish Executive to produce the animal health and welfare strategy published in June this year.

There are four other functions included in the order. The first will enable the Assembly to set fees payable to local authorities in Wales for local land charges and personal searches. At present these functions lie with my noble and learned friend the Lord Chancellor. For England, the Government have signalled their intention to devolve most of them to individual local authorities. But the Assembly has oversight of Welsh local government. It wishes to see a consistent approach to fee setting across Wales and it is right that we should agree to its request that the fee-setting function be transferred to it in relation to Wales.

The order will also give the Assembly the power to decide whether items of artistic or historical interest in Wales should be accepted under the highly successful acceptance in lieu of inheritance tax scheme. The National Assembly for Wales (Transfer of Functions) Order 1999 gave the Assembly power to allocate such items to museums and galleries in Wales, and it clearly makes sense for the power to accept items which are located or will be displayed in Wales to be exercised in tandem with this. It will also enable the Assembly to make regulations governing the notice periods in Wales for removal of abandoned vehicles by the police.

Finally, the order will correct an anomaly in the Assembly's powers to set threshold levels for water industry inset appointments in Wales. It might help if I explain that inset appointments arise when a relatively large customer exercises its right to purchase water and sewerage services from a company other than the water undertaker for its area.

The Water Industry Act sets the threshold for inset appointments. These are: 250 million litres if the area of the undertaker concerned is wholly or mainly in Wales, and 100 million litres in all other cases.

Under Sections 7 and 158 of the Act, lower figures can be substituted for these thresholds, and both powers have to be exercised at the same time. These powers have been transferred to the Assembly. To encourage greater competition among water suppliers, the Assembly now plans to reduce the Welsh threshold from 250 million litres to the English level of 100 million litres. However, the Section 7 power was transferred in respect of, any water or sewerage undertaker whose area is wholly or mainly in Wales", while that in Section 158 was transferred "in relation to Wales".

The areas of water companies are based on river catchments, so they are not coterminous with the national boundary between England and Wales. So the area over which the Assembly can exercise the two powers needs to be brought into line, and that is the effect of the order.

The Wales Office has worked closely with, and got the complete agreement of, all the relevant departments—Defra, DCA, DCMS and, of course, the Assembly. A debate took place yesterday on this order in the other place and approval was given to it. I commend the order to the House.

Moved, That the draft order laid before the House on 11 October be approved [30th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)

Lord Roberts of Conwy

My Lords, I am sure we are all most grateful to the Minister for his clear and succinct presentation of the order to the House. My criticism is in no way personal; it is of the system which occasions and produces recondite and obscure orders of this kind.

As the noble Lord explained, the order transfers selected powers and functions to the National Assembly from some eight Acts of Parliament and three statutory instruments to complement the veritable plethora of functions already transferred, notably under the 1999 transfer order.

A compendium of the Assembly's powers and functions should now be compiled so that Assembly Ministers and Members—indeed, everyone—know where matters stand. This is essential for good governance, and urgently required in my view. I say this with total confidence because those professional and academic lawyers who have studied the Assembly's functions confess that even they are uncertain and confused over what the Assembly can and cannot do.

Some of your Lordships recently had an opportunity to hear Mr David Lambert, a former civil servant on the legal side in the old Welsh Office for many years and now a research fellow in public law at Cardiff University. He was talking about the problems and uncertainties related to transferred functions. He also spoke of possible solutions for the future.

There is a wide range of views on this issue. My belief is that whatever is proposed, a compendium of existing powers and functions, spelling out exactly what the Assembly can and cannot do, is urgently needed as a basis for future consideration and a guide for all concerned. I hope that the Government will give it serious consideration.

Four of the Acts referred to in this order and three sets of regulations relate to animal health and welfare and, as the Explanatory Memorandum states, the transferred functions in the order are, intended to give the Assembly a level of responsibility for such matters which is equivalent…to that of the Scottish Executive". The case for a transfer was indeed first brought into sharp focus by the foot and mouth outbreak of 2001. Mr Carwyn Jones, the then countryside Minister in the Assembly Government, said of that devastating episode that, the Assembly found it difficult to reconcile the contradiction implicit in having political accountability for matters for which legal responsibility had not been devolved". Incidentally, I think we would all agree that he conducted himself extremely well in very difficult circumstances, and earned plaudits all round.

How certain can we be that, after this transfer; the Assembly is fully empowered to deal properly with a similar crisis in agriculture in future? It would certainly seem to be now in a position to implement the Welsh element of the country-wide animal health and welfare strategy developed after the outbreak and published in June of this year. But crises seldom replicate past events exactly, and there is an argument for giving the Assembly a general power within primary legislative measures to do anything consistent with the purpose of the measure if the need arises. It is a point that the Government have already taken on board in various Acts, but it requires further thought and attention, with a view to refinement and standardisation.

The change proposed in the order to give the Assembly the function currently belonging to the noble and learned Lord the Lord Chancellor, of setting fees related to local land registers, arises from the proposal to devolve the function to local authorities in England. The proposal appeared in the Government's White Paper of 2001, Strong Local Leadership—Quality Public Services, but, like so much else promised by the Government, that has not yet been implemented. Be that as it may, the proposal in Wales is that the fee setting should be done by the Assembly Government rather than local authorities. The question of why devolution should stop at the Assembly was raised at the Assembly's discussion of this document on 13 July this year. The reply was given that Edwina Hart, the Assembly Government's finance Minister, had decided that there should be national rates in Wales and that local authorities should not be allowed to determine their own fees. I am glad to say that Conservative policy in England is to devolve the function to local authorities, and this is supported, for sound reasons, by the Local Government Association. I cannot see us changing our view on the Welsh scene.

Fees of this kind should reflect the costs to the local authority of recording the information and providing it to interested parties. It is to be hoped that fees will not be exploited and developed into a form of taxation. When the fees are set by the Assembly, I hope that they will be debated to ensure that they are set at a reasonable level, commensurate with local authority costs.

The change proposed in the order relating to property surrendered in lieu of inheritance tax is technical in that it ensures that the Assembly has power to accept such property—usually of an artistic nature—from the Inland Revenue as well as deciding to which museum or gallery such items should be offered. The current low level of exemption from the tax compared with property prices is a matter of concern, as more and more estates become liable for the tax. The future consequences should be carefully watched.

The order also provides that the Assembly has the role, in dealing with abandoned vehicles, of deciding the length of time involved before a vehicle can be so described and the period allowed for an objection to be registered. That seems eminently sensible. I hope that this particular transfer of function will lead to a burst of activity to eliminate this form of desecration from our waterways, hills and landscapes.

1.30 p.m.

Similarly, the change in the entry in the 1999 transfer of functions order relating to the Water Industry Act 1991 and the removal of an inconsistency in the way that two related powers are exercisable by the Assembly is a desirable step in the right direction. As I understand it, Section 7 of the Act refers to the appointment of water and sewerage undertakers for England and Wales as distinct geographical entities while Section 158 appears to recognise that some of the water and sewerage undertakers operate on a cross-border basis. As the Minister explained, it is a somewhat complex area that clearly has extensive repercussions. I hope that no cross-border problems will arise following our approval of this order today.

In approving the order, we are mindful of the commission report by the noble Lord, Lord Richard, and the emphasis that it places on the need for thorough scrutiny of secondary legislation not only here at Westminster but at the Assembly too. As the Minister said, the order was debated at the Assembly in July and considered by the other place yesterday. Our own Statutory Instruments Committee also considered it and provided useful advice. Personally, I would like to record my thanks to Mr Roger Bonehill, the Government's expert on this order, for his readiness to answer my telephone queries.

Our scrutiny at all levels would be greatly assisted if we had the compendium of Assembly powers and functions to which I referred at the beginning. It might also help us all to identify other possible gaps in the Assembly's functions and take anticipated action. I therefore reiterate my plea that the Government give the matter their urgent consideration.

Lord Thomas of Gresford

My Lords, we on these Benches also very much welcome this order. May I also express my thanks to the Minister, not only for his clear exposition of the position today, but for forwarding to those of us charged with speaking on this matter the necessary documentation that lay behind many of the comments that he has made and which are very helpful for us when we are seeking to reply?

I echo the words of the noble Lord, Lord Roberts of Conwy, that it would be helpful if we put together a compendium, as he called it, of the powers that have now been transferred to the National Assembly. I remember that when the legislation was going through this House we were presented with enormously long schedules of powers taken from this Act or another Act. It was difficult enough at that time to comprehend precisely what powers were being transferred. As the noble Lord, Lord Roberts, said, it is difficult for academic lawyers as well as the practical lawyers employed by the Assembly to find out exactly where they stand.

That difficulty is compounded by an additional problem that was highlighted by my honourable colleague the Member of Parliament for Brecon and Radnorshire, Mr Roger Williams, when he pointed out that although this order transfers powers relating to animal health and welfare, it does not transfer powers relating to dealing with plant diseases to the National Assembly. The reply from the Minister there was, "That is all under a memorandum of understanding". It does not transfer powers, but there is an informal arrangement whereby the National Assembly, through its officials, will act in relation to plant diseases. That is only an example of what must appertain over a wide area of public responsibility and in addition to knowing what actual powers are transferred it would be useful to compile a note of the memoranda of understanding in relation to who does what, which will also assist those, including the Assembly Members, who are trying to cope with public business in Wales.

Coming to the specific matters referred to in the order, we welcome the fact that the power to tackle animal diseases and to deal with animal welfare has been transferred. I take it that that means that the National Assembly can decide whether to pursue a vaccination or slaughter policy in the event of an outbreak of foot and mouth disease. That is a matter of considerable concern. It was very noticeable in the last outbreak that Scotland moved very swiftly and held the line in the border counties just north of Carlisle where it is thought that the disease made an early appearance. Because it was able to move swiftly, Scotland's beef cattle in particular escaped much of the ravages of that disease.

However, one of the powers that has apparently not been transferred is the power to give compensation in such circumstances. Supposing that the Assembly were to decide upon a policy of slaughter, it seems a little odd that it does not have the power to award compensation and that the matter should be handed over to Defra to deal with. There are distinctive agricultural practices and distinctive problems in Wales and it seems only right that, if the power of dealing with disease is in Welsh hands, the Assembly should also have the power of assessing compensation.

On the acceptance of property in lieu of inheritance tax, I echo the noble Lord, Lord Roberts, in thanking the member of the committee for giving us information about the way that the system works. I put forward the hope that in this context, if the National Assembly does decide to accept property in lieu of inheritance tax, it does not disappear into some warehouse. Matters that are considered by the committee that determines the intrinsic value of a piece of art and its actual value in the marketplace should not be locked up but properly put on display so that the public in Wales can have the benefit of the matters that have been accepted in that way.

I am rather relaxed about land charge fees being set by the Assembly. I have knowledge from my dim and distant past as a solicitor of dealing with local authorities. I do not think that the payment of land charge fees should be seen as a tax and to have a standard fee throughout Wales would be a good thing. It would be unfortunate if certain areas in Wales started to charge very high fees as a measure of discouraging people from buying property in that area.

The power to remove abandoned cars is also a welcome transfer. The noble Lord, Lord Roberts, referred to the desecration of the countryside. It is true that, in parts of Wales in the uplands where I frequently walk one sees derelict cars completely abandoned. It is not only an urban problem. There is even greater desecration from the trails of motor bikes and so forth across open moorland, but that is perhaps something that we can talk about on a different occasion.

I have tried to deal with the matters that are transferred in this order. We welcome the order, but we would welcome even more the implementation of the recommendations of the noble Lord, Lord Richard, that the power of primary legislation should be put in the hands of the National Assembly, so that it would not be necessary for these matters to be debated in Westminster at all. They could be debated by the representatives of the people of Wales who have been elected to the Assembly.

Lord Livsey of Talgarth

My Lords, as the former Member for Brecon and Radnorshire in the other place, I am aware that the critical problems that we had during the foot and mouth outbreak of 2001 were substantially caused by communication problems between London and Cardiff and people on the ground. I can only say that I wholeheartedly welcome the transfer of these functions. The noble Lord, Lord Roberts, congratulated the Agriculture Minister, Carwyn Jones, on the way in which he carried out his duties in 2001, which will make the task in future much easier. I hope and trust that that will be so.

On the comment made by my noble friend Lord Thomas of Gresford on the compensation issue, which I believe is very important, we need to know why that provision is not included—especially as it is a subject of disputes. There are valuers on the spot who know precisely what local valuations are of sheep and cattle, so I hope that it is not simply a question of trust with regard to Wales.

I note that all the functions under the Slaughterhouses Act 1974 will be transferred. That is to be welcomed, because of the number of small slaughterhouses in Wales, many of which have been closing. That impinges on the upgrading of these places and whether sufficient financial assistance will be available for them to do that.

I realise that we have very limited time, but those were a few brief comments.

Lord Evans of Temple Guiting

My Lords, I thank all noble Lords who have contributed to this short debate. I shall try to answer all the questions, but if I inadvertently miss one or two out, I shall write within the next day or so.

The noble Lords, Lord Roberts and Lord Thomas, raised the interesting question of whether there should be a compendium for all Welsh legislation. In principle, I totally agree with that idea—it is an absolutely terrific idea. As the noble Lord, Lord Thomas, said, it would be of enormous benefit to law students and people who wish to know about the constitution and devolution.

Although I welcome the idea, I understand that the UK Government provide, through HMSO, links to all Welsh statutory instruments made by the National Assembly for Wales and to all Acts of the UK Parliament and UK statutory instruments which apply exclusively, or primarily, to Wales. It may be that one can get that information but that it is not in the user-friendly form that it should be in. I hope that noble Lords will understand that it would not be proper to discuss how the National Assembly directs its funding in this respect. However, I can say from the Dispatch Box that I believe that it is a good, sensible and actually quite necessary idea, and I hope that we can make progress on it.

The noble Lord, Lord Roberts, asked some specific questions. He asked how certain we were that the Assembly would have the powers necessary to act on animal health and welfare matters. The Assembly is absolutely confident that the transfer of animal powers gives it the power that it requires, but of course the position does and will remain under review.

The noble Lord, Lord Roberts, also asked about the fees for searches and so on, and wants an assurance that they will be kept at a reasonable level and will not be a device used for raising taxes. The regulations on fees will be subject to debate in the Assembly in plenary, so there will be extensive consultation before anything happens.

When I was chairman of the Museums, Libraries and Archives Council, I was very much involved in the "acceptance in lieu" scheme, which has been a tremendous success. We must be careful not to misuse the word "property", because it does not have anything to do with buildings—it has to do with works of art and artefacts. It is brilliant that the power of approval of an object or work of art that is available is being devolved to Wales. I agree with the point made by the noble Lord, Lord Thomas, that those works of art and so on should be exhibited. I once got into terrible difficulties by arguing that the 80 per cent of materials in store in museums should be given to schools or taken out of store somehow. That is a real problem: huge amounts of our national heritage in museums are in store.

The noble Lord, Lord Thomas, is concerned about making more available the memorandums of understanding, one of which as he rightly said was used for plant diseases. Obviously, it would be good if they could be tied in with the compendium idea, but they are already in the public domain, and copies can be obtained from the Assembly or the relevant Whitehall department. The noble Lord also asked a question about inheritance tax, which I believe I have answered.

On vaccination policy, the answer to the noble Lord's question is that yes, in theory the Assembly could have a different policy for an outbreak of foot and mouth disease. However, as Defra is the competent authority in respect of the EU, the Assembly is committed to working within the GB-wide disease control area. As for compensation, such payments will remain with Defra, as the Assembly has not sought any budgetary transfers on that matter.

I welcome the support given to the order, and thank the noble Lord, Lord Livsey, too, for his contribution.

On Question, Motion agreed to.