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8Clause 6, page 4, line 12, at end insert--
("(4A) In exercising the power under subsection (1), the Secretary of State--
(a) must not make any provision which has effect in relation to Wales unless he has consulted the National Assembly for Wales, and
(b) must not make any provision--
(i) in relation to legislation made by the National Assembly for Wales, or
(ii) which has effect both in relation to Wales and in relation to any enactment to which section (Power to modify enactments concerning plans etc: Wales)(2) applies,
without the consent of the Assembly.
(4B) The National Assembly for Wales may submit proposals to the Secretary of State that the power under subsection (1) should be exercised in relation to Wales in accordance with those proposals.")

Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8.

Clause 6 of the Bill confers a power on the Secretary of State by order to amend, repeal, revoke or disapply any enactment, whenever passed or made, which requires a local authority to prepare, produce or publish any plan or strategy relating to any particular matter. I should point out, for the avoidance of doubt, that this power could not be used to change any provisions in Part II of the Bill.

Amendment No. 9 (which introduces a new clause) and Amendment No. 8 make provision for the exercise of this power by the National Assembly for Wales. In doing so, they seek to balance the Assembly's legitimate desire to have a degree of control over legislation affecting Welsh authorities, while reflecting the basis of the devolution settlement that Parliament retains primacy in relation to primary legislation.

Amendment No. 8A, tabled by my noble friend Lord Williams of Elvel, is relevant to this issue. With the leave of the House, I should like to invite my noble friend to speak to it.

Moved, That the House do agree with the Commons in their Amendment No. 8.--(Baroness Farrington of Ribbleton.)


8AThat this House do disagree with the Commons in their Amendment No. 8, but do propose the following amendment in lieu thereof--
Clause 6, page 4, line 12, at end insert--
("(4A) In its application to Wales, this section has effect as if for any reference to the Secretary of State there were substituted a reference to the National Assembly for Wales.")

Lord Williams of Elvel: My Lords, I beg to move, as an amendment to Commons Amendment No. 8, Amendment No. 8A. My noble friend Lady Farrington has explained the context of the

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amendment. Clause 4 creates a duty on local authorities to prepare community strategies. The National Assembly for Wales is prepared to give guidance, and is doing so, to local authorities in Wales and to other organisations.

Given the simpler structure of Wales in terms of local authorities and the smaller scale of the Principality, we believe that community plans will be prepared on a more systematic basis than in England and that they will prove in the end to be more influential.

Clause 6 is in essence consequential on Clause 4. The amendment to Clause 6 introduced by my noble friend allows the statutory requirements for the plans to be amended over time by the Secretary of State, not by the National Assembly for Wales.

I gave notice to my noble friend that it is the view of the Welsh Local Government Association that the nature of community planning will develop rather differently in Wales and that, therefore, there is a practical need for the powers of secondary legislation in Clause 6 to be devolved in their entirety to the National Assembly.

There is an underlying theme. Do the Government believe in devolution to Wales or not? If they do, I very much hope that they will accept my amendment in lieu; if not, I should be glad to hear the reason for it from my noble friend.

Moved, That Amendment No. 8A, as an amendment to Commons Amendment No. 8, be agreed to.--(Lord Williams of Elvel.)

Baroness Farrington of Ribbleton: My Lords, I thank my noble friend for explaining his amendment. Before I respond, I should like to make absolutely clear that the Government support devolution to Wales. Under the devolution settlement primary legislation remains the reserve of Parliament, as does the approval of any secondary legislation relating to matters that have been reserved to the UK Government. In relation to devolved matters, the National Assembly now draws up and approves its own secondary legislation. For the great majority of secondary legislative powers this distinction works well, but the broad rule of thumb becomes more difficult to operate in relation to so-called Henry VIII powers which, as the House will be aware, enable secondary legislation to be used to change primary legislation. Such powers are found in nearly all legislation, most commonly to enable minor or consequential changes to primary legislation.

In recent years Parliament has approved Henry VIII powers which allow more wide-ranging changes to primary legislation, and the provisions in the Deregulation and Contracting Out Act 1994 and Section 16 of the Local Government Act 1999 are examples of that. Clauses 5 and 6 of this Bill also contain such powers. In legislating for such powers there is the very evident possibility of tension between the wishes and expectations of the Assembly in relation to control over secondary legislation and the sovereignty of Parliament in relation to primary legislation.

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In the great majority of cases, the Assembly exercises the same secondary powers in relation to Wales as the Secretary of State does for England. In Parts II and III of the current Bill, for instance, there are well over 40 powers to make regulations and orders, and in all but one case the National Assembly exercises equivalent powers to the Secretary of State. The exception is in relation to elections which are a reserved matter. Where Henry VIII powers are involved, however, a more sophisticated approach is necessary to balance the respective roles of Parliament and the National Assembly. Our general approach is that where such a power is relatively narrow the Secretary of State and the National Assembly should exercise equivalent powers in relation to it. Clause 42 of this Bill, which provides for incidental, consequential or transitional provisions to primary legislation, is an example of that approach.

We believe that where wider-ranging powers are involved a more measured approach is necessary. In relation to the very wide-ranging power in Clause 5 the Bill enables the Assembly to propose uses for the power, but the laying of any order under that clause is reserved to the Secretary of State and approval of any such orders is, I stress, reserved to Parliament. In studying this particular aspect of the legislation the Secretary of State needs to seek parliamentary approval.

In relation to the somewhat narrower Clause 6 power, we have proposed that the Assembly should exercise the powers in that clause in relation to plans concerning policy issues that have been devolved to the National Assembly.

Lord Williams of Elvel: My Lords, I apologise for intervening. Did my noble friend intend to refer to parliamentary approval or approval by the National Assembly for Wales?

Baroness Farrington of Ribbleton: My Lords, in relation to the retained power to amend primary legislation by order, the Secretary of State must place such orders before Parliament. Therefore, there must be approval by Parliament through the action taken by the Secretary of State.

If the plans in subsection (2) of the new clause were regarded as the complete list the National Assembly might feel somewhat short-changed. However, the list is not intended to be comprehensive and the Secretary of State has power to add to it by order. We are in the process of identifying which plans should be added to the list. My noble friend is right that the role played by the National Assembly is developing. For example, I would expect plans for children's services and community care plans to be added to the list.

Unfortunately, my noble friend's Amendment No. 8A seeks to give the National Assembly for Wales unfettered use of the Clause 6 powers and we do not believe that that is right. The range of plans that can be amended using Clause 6 includes reserved as well as devolved matters. For example, there are a number of statutory plans relating to crime, disorder and policing. They are reserved matters and only

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Parliament should be able to amend legislation that relates to them. Some plans are hybrid, such as best value performance plans. Some of the provisions relating to plans form part of a wider framework of legislation. Best value performance plans provide a good example. The best value provisions at the heart of the Local Government Act 1999 form the basis for the audit, inspection and intervention provisions in that legislation.

The National Assembly exercises wide powers to regulate and issue guidance on the content of such plans in Wales, and it is right that it should. But the Clause 6 powers would enable the primary legislation relating to such plans to be amended, or even repealed, with significant consequences for provisions elsewhere in the Act. The working of the whole best value framework as approved by Parliament could be subject to significant change. It is our view that such wide-ranging changes to primary legislation should be the preserve of Parliament. As with Clause 5, the Assembly has been given powers to propose any such changes to the Secretary of State, who may then use his Clause 6 powers to seek Parliament's approval of them. Our amendments also safeguard the National Assembly's own legislation, in that the Secretary of State cannot use the Clause 6 powers to change it without the Assembly's consent.

I apologise for speaking at such length, but I believe that the wider context is important in understanding the specifics of this Bill. The House will recognise that the particular issues that arise in relation to Henry VIII powers and the devolution settlement for Wales are particularly important. Such powers vary from Bill to Bill and the House will want to consider in each case whether the balance that the Government propose between the respective roles of Parliament and the National Assembly is correct. We believe that in relation to Clause 6 Amendments Nos. 8 and 9 moved in the other place strike the right balance, and we invite the House to agree to them. I hope that with the explanation that I have given my noble friend will not feel it necessary to press his amendment.

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