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15 July 2009 : Column GC243

Grand Committee

Wednesday, 15 July 2009.

Arrangement of Business

Announcement

3.45 pm

The Deputy Chairman of Committees (Lord Geddes): The monitor agrees with Big Ben-the Grand Committee is in session. Before the Minister moves that the first statutory instrument be considered, I will remind noble Lords that in the case of the four orders, the Motion before the Committee will be that the Committee do consider the order in question. I should perhaps make it clear that the Motion to approve the orders will be moved in the Chamber in the usual way. Further, if there is a Division in the House, the Committee will adjourn for 10 minutes.

National Assembly for Wales (Legislative Competence) (Social Welfare) Order 2009

Copy of the Order
19th Report from the JCSI

Considered in Grand Committee

3.46 pm

Moved By Lord Faulkner of Worcester

That the Grand Committee do report to the House that it has considered the National Assembly for Wales (Legislative Competence) (Social Welfare) Order 2009.

Relevant document: 19th Report from the Joint Committee on Statutory Instruments.

Lord Faulkner of Worcester: For the convenience of the Committee, I shall speak also to the National Assembly for Wales (Legislative Competence) (Exceptions to Matters) Order. For brevity, I shall refer to them respectively as the carers order and the exceptions order.

I will say at the outset how much we welcome the broad agreement that exists on conferring on the National Assembly for Wales the powers set out in the draft carers order, and for making the sensible, technical changes set out in the draft exceptions order. The content of the orders was previously set out in a single proposed order that was subject to pre-legislative scrutiny by a committee of the National Assembly in Cardiff Bay, by this House's Constitution Committee and by the Welsh Affairs Committee in the other place. The Government are grateful to these committees for the scrutiny that they undertook.

Following comments made by this House's Constitution Committee, the Government and the Welsh Assembly Government decided to separate the previously single order, which covered both carers and the technical changes being made to exceptions, into the two draft orders before us today. These orders, taken together, differ little in content from their single, unified predecessor. The National Assembly for Wales approved them both on 23 June this year.

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I shall deal first with the draft order on carers. This order forms part of the legislative programme set out by the First Minister of the Welsh Assembly Government, the right honourable Rhodri Morgan AM, on 15 July last year. It inserts a single matter-matter 15.9-into field 15 of Schedule 5 to the Government of Wales Act 2006. Field 15 covers the area of social welfare. The competence conferred by this order will enable the National Assembly to legislate to support the provision of care by carers and to promote their well-being. Many noble Lords have taken a keen interest in this subject, and I am sure that we would all acknowledge the vital role that carers undertake not only in Wales but across the United Kingdom.

The Welsh Assembly Government wish to bring forward legislation-an Assembly measure-to strengthen support for carers, not as an add-on but as something that goes to the heart of sustainable health and social care services in Wales. They believe that better ways need to be found to identify carers, for example, including young carers, and for the NHS in Wales to work more effectively with carers as partners in the provision of care.

The Committee may be aware that yesterday the First Minister, Rhodri Morgan, announced the third year of the Welsh Assembly Government's legislative programme. It includes a proposal to bring forward an Assembly measure using the powers conferred through this LCO, subject to its successful passage in this House and the other place. I am pleased to say that the Welsh Affairs Committee and the Committee of the Welsh Assembly, which each scrutinised the proposed order, supported the principles and policy that underpin the approach taken towards carers, and recommended that only technical and definitional changes should be made to the content and scope of the order. The Welsh Ministers have also made some minor drafting changes to the earlier order.

The draft order also includes a minor technical change to matter 15.1, which deals with domiciliary care. The matter enables the Welsh Assembly to legislate on the charging for social services that are covered by a direct payments arrangement. The change is needed as the Health and Social Care Act 2008 amended the relevant legislation on direct payments to include a wider range of payment recipients in situations in which an individual lacks the capacity to agree to and manage a direct payments arrangement themselves. This change to the Assembly's legislative competence therefore reflects the broadening of Welsh Ministers' executive competence that was brought about by the 2008 Act, and is further explained at paragraph 7.14 of the accompanying Explanatory Memorandum.

The National Assembly for Wales (Legislative Competence) (Exceptions to Matters) Order 2009 makes a technical change to the way in which exceptions apply to matters in Schedule 5 to the Government of Wales Act 2006 by making any exceptions to the legislative competence set out in Part 2 of the schedule apply to all matters in that schedule. There will still be occasions when an exception is included in the text of the matter and is thus matter-specific.

Exceptions are currently listed against specific matters in tables at the end of each field in Schedule 5. The onus is to ensure that each matter has all the relevant

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exceptions applied to it when it is inserted into Schedule 5, which runs the risk that an exception might not be applied to a matter when it is relevant to it. The change will make Schedule 5 clearer and easier to understand by ensuring that exceptions apply in all cases where they are relevant. To put it another way, the onus will be to disapply an exception if it should not be applied to a matter. This is a sensible change that further safeguards both UK government and Welsh Assembly government interests. Exceptions usually apply to areas of policy that are not devolved. Applying these exceptions to all matters in Schedule 5 means that the Government no longer need to decide whether each exception should apply to a new matter.

This Government are firmly committed to devolving legislative competence to the National Assembly, thereby enabling the Welsh Assembly Government to fulfil their commitments to the people of Wales. That commitment is demonstrated once again by the draft orders before us today. It shows that the process of conferring competence on the Assembly by means of Orders in Council-or legislative competence orders, as they are otherwise known-is working well and is being developed and improved.

I commend these orders to the Committee, and I beg to move.

Lord Glentoran: Before I respond to the Minister, I congratulate him on joining the Wales Office and welcome him to it. I hope that he will have a happy and enjoyable time there, and I assure him that all the usual suspects from this House who take part in Welsh affairs are assembled in the Moses Room. I hope he will appreciate the value of their attendance on many occasions. They all have considerably more experience than I have. Having gone that far, however, I will say a few things about the orders in the same order in which the Minister took them.

The first time I read the Explanatory Note on the National Assembly for Wales (Legislative Competence) (Exceptions to Matters) Order 2009, I wondered where I was. It made absolutely no sense to me at all. I read both the order and the Explanatory Note several times and finally found my way through it, but I congratulate the Minister and his officials on simplifying it for us all. Although we are dealing with them as one, the Government separated one order into two pieces, which makes it much easier to understand and much clearer.

As the Minister has said, the order will amend the Government of Wales Act 2006 by inserting a new matter, matter 15.9, into field 15. The new matter would give the Assembly Government legislative competence to support the provision of care by carers and to promote the well-being of carers, and I join the Minister in wishing all carers well and thanking them for their great work in looking after those of us who need carers and are less able.

The report of the Welsh Affairs Select Committee, which conducted pre-legislative scrutiny of the proposed order, points out, as indeed is pointed out in the Explanatory Memorandum, that Wales has a higher proportion of carers than any region of England or Scotland, together with the highest proportion of people

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suffering from long-term illness, permanent sickness and disability among the economically inactive population. It is worth noting here that under the present crisis the economy of Wales is probably very close to being the worst, if not the worst, in the United Kingdom. That of north-east Scotland may be a little worse but, for the population, Wales is in a poor way, and I am sure that as time goes on its carers will be badly needed.

The Welsh Assembly Government already have a significant level of devolved secondary competence in respect of social welfare. It might be said, therefore, that the proposed order is a logical extension of the existing devolved competence. However, I feel it appropriate to draw attention to the criticism contained in the Select Committee's report that greater use could have been made of existing powers already vested in the Assembly Government. This is one of the matters that we are concerned about: the Assembly is gaining competence but we are not always happy that it makes best use of it. For example, the Assembly Government have issued no guidance under the Carers (Equal Opportunities) Act 2004, whereas in England such guidance was issued within 12 months of the engagement of that legislation.

The Assembly Government should not be seeking primary competence where existing secondary competence has not been utilised. Indeed, the Select Committee criticised the Assembly Government for their failure to make full use of their existing power in that regard. The Select Committee did, however, point out that the Government did not act on their commitment to introduce secondary legislation providing for duties to be placed on the National Health Service to provide for the needs of carers. It is regrettable that this was not done, and I notice that it is the intention of the Assembly Government to introduce such provisions consequent upon the making of the legislative competence order.

Some matters arise on which I would appreciate clarification. First, any Assembly measures passed after the making of the order will potentially result in additional obligations being placed on local authorities. Can the Minister say whether, from his discussions with the Assembly Government, it is intended that those local authorities will be compensated by way of increased financial support for the cost of complying with those duties?

Secondly, the Select Committee drew attention to the cross-border implications of any legislation that may flow from the making of the legislative competence order. It is not impossible-indeed, it is highly likely, especially in the case of north-east Wales-that the carers and the cared-for may live on different sides of the border. What discussions has the Minister had with his colleagues in the Welsh Assembly and the Secretary of State for Health as to how these cross-border issues will be dealt with when measures are brought forward? Subject to what I have just said, I have no further comments to make on this order.

I turn to the National Assembly for Wales (Legislative Competence) (Exceptions to Matters) Order, which I found more complicated to work through. This is really a tidying-up order and is, I believe, a very sound move and one that I welcome. It tidies up what is in

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fact a very messy way of maintaining exceptions to devolved matters where legislative competence for a matter is transferred to the Assembly but that matter would otherwise include a function which was not exercisable by Welsh Ministers and therefore could not be devolved back to the Assembly.

When the Assembly was given legislative competence with respect to vulnerable children, a specific exclusion had to be made to cover the use of motor vehicles, road traffic offences and various other non-devolved areas, which resulted in a table consisting of 25 repetitive lines. The proposed order would create a general exception for non-devolved highways and transport and social welfare functions. This is a positive step, although it was not envisaged at the time of the passage of the Bill that the legislative competence order process would be utilised in this manner. Nevertheless, it has the effect of making the schedule not only look different, but it reads better without changing the substance of the powers devolved. To that extent, it is a good proposal and we welcome it.

4 pm

Lord Livsey of Talgarth: Perhaps I may take this opportunity to welcome the noble Lord, Lord Faulkner, to the Front Bench. I know that from time to time he has enjoyed himself very much at the Millennium Stadium, and I hope that that will continue to be the case.

I turn first to the legislative competence order on social welfare. Did I hear the Minister correctly when he said that the First Minister actually dealt with this order on 15 July "last year"? It is now 15 July 2009, so the process has taken a whole year. I should say to the Committee that I am not a fan of the process and stated that clearly during the Government of Wales Bill in 2006. I said that we would face administrative problems as a result. The time that has been taken accounts for some of the delay that was mentioned earlier by the noble Lord who spoke for the Official Opposition.

The provision of care for carers which is set out in this order is extremely important. As has already been said, carers need care, and warm tributes have already been paid to them for the work that they do. However, their well-being is affected by their responsibilities, and the provision set out in this LCO to provide social care services for helpers is important, particularly in relation to non-residential care services. The 11 exceptions, including the Children's Commissioner and child benefit, are welcome, while the provision that,

"any person may secure social care services on their behalf",

is also welcome. Account appears to have been taken of the Children and Young Persons Act 2008. The Welsh Assembly Government can give guidance to local authorities and indeed carry out inspections and make regulations, but it has been noted that there are still gaps in service provision which, it is hoped, this legislation will put right.

The importance of identifying carers, particularly young carers, has been set out. I came across many young carers and the difficulties they face when I was a Member of the other place, so the provision of correct information is important. Cross-border

15 July 2009 : Column GC248

co-operation is absolutely vital, as is the synergy between the National Health Service and social care provision in local authorities. When, for example, carers have to go from Llandrindod to Hereford, a distance of 40 miles, to accompany someone in their care, it is a whole-day operation. Because of my former direct involvement in Powys, I want to point something out. The border between Wales and England is 132 miles long, therefore even longer than the border between Scotland and England. As there is no district general hospital in Powys, people have to go to one in Oswestry, Shrewsbury, Hereford, Newport, Cardiff, Abergavenny, Swansea, Carmarthen, Neath or Aberystwyth. That is the situation in the most sparsely populated county south of the Highland line in Scotland. It is unacceptable in terms of service provision, but, of course, social services cross the border. Indeed, in places like Presteigne, English people living on the English side of the border utilise Welsh social provision as well; those parts of Herefordshire and Shropshire are very remote in England. We have to be careful about these aspects.

The Welsh Affairs Committee's report on cross-border provision for health services pointed out-I shall not read from it-that there are totally different funding principles at stake between England and Wales, which caused both confusion and difficulties with the delivery of service. I point that out only as a principle, because I could talk about that sort of thing for a very long time.

The exceptions to the matters that the LCO will look at have already been covered thoroughly. That is a logical provision that addresses the limitations to Schedule 5 to the Government of Wales Act 2006. It may be controversial in terms of the logicality of the legislation because it includes restrictions as well, but the main point is that it is a technical amendment, and it is welcome because it makes clear what the provisions are and what specifically defines the agreement between the UK Government and the Welsh Assembly Government about where responsibilities and legislative compentency lie. In that respect particularly, I welcome the latter LCO.

I welcome the other LCO regarding social welfare. It needs a lot of work and application by both the Assembly and the UK Government to make matters better.

Lord Rowlands: I am a member of the Constitution Committee and will therefore confine my remarks entirely to those matters that engaged the committee when the original draft order first arose.

The orders were of some considerable constitutional significance. First, in a letter from the noble Lord, Lord Goodlad, our chairman, we asked the Secretary of State for Wales whether there was a compelling case for remodelling the way in which exceptions were going to be reported in Schedule 5. My noble friend used the word "technical" on numerous occasions in his opening remarks. I remind him of our observation on that very word in paragraph 17 of our report:

"We do not regard the proposed new method as being merely 'technical'. The Government of Wales Act 2006 is, in effect, a written constitution for the governance of Wales. There is an onus to explain with care and to justify why changes to this constitutional code are necessary and desirable".

So it is not just a technical matter.

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The second concern that the committee had about the original draft order was whether it was constitutionally acceptable that a change could be made to the 2006 Act by a legislative competence order rather than by amending the primary Act. That is what we are doing in the second order; we are amending the 2006 Act. It is therefore not a minor technical matter-it is something on which we need to constitutionally satisfy ourselves that we can use this competence order to amend the Act. That is a serious and important point to clarify.

As the committee repeatedly reminds those who read the report, the 2006 Act is a written constitution and to amend it is therefore a serious issue. Having said that, after a number of exchanges with our wonderful legal adviser, Mr Le Sueur-who, sadly, has retired today after three and a half years in the committee-we satisfied ourselves that it was acceptable that Section 95 of the 2006 Act could be amended by a competence order in the way that was being proposed.

We noticed one point in the original order that was obvious even to a layman like me-I did not need a legal adviser to worry about the contents. Articles 1 and 2 were fine; they dealt with social welfare. Suddenly, however, we found in paragraph 3 of the original order, which deals with social care, a reference to:

"Regulation of the use of motor vehicles on roads, their construction and equipment and conditions under which they may be so used ... Road traffic offences ... Harbours, docks, piers and boatslips".

All those were rolled into an order that seemed to be concerned exclusively with social welfare. It is that which led the committee perhaps to dig in its heels and recommend that the Government-I am grateful they have accepted it-should not, in this case or the future, roll these things together. A social welfare order of this kind should not include a lot of exceptions that are totally unrelated.

I also draw my noble friend's attention to the conclusions in our report. First, we express great satisfaction at the result of the exchanges and the fact that we now have two orders: the exceptions order, which amends the Schedule 5 arrangements; and the serious matters in the social welfare order, a subject which I will not develop but to which other noble Lords have spoken.

I also ask my noble friend to think about our recommendation in paragraph 15 of the report. It states:

"In future, LCOs should avoid rolling up specific provision on a subject and 'exceptions to matters' on a completely unrelated subject".

In other words, we never want a repeat of that kind of original draft social order. The paragraph continues:

"We are concerned that 'omnibus LCOs', covering a disparate range of subjects, are less easily scrutinised by Parliament, the National Assembly, and the public".

I hope that my noble friend will be able to offer us an assurance that the lessons from the evolution of this social welfare draft order, and the constitutional implications which arose from it, have been well and truly learnt; that in future we will have the very kind of things that we have got today-an order which deals specifically with social welfare; and that if you want to

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amend the exceptions, you should bring forward a separate order so that both can be scrutinised properly, sensibly and without the kind of confusion that arose in the original draft order. The Constitution Committee supports these orders but would welcome an assurance that in future we will have consistency and clarity in the way that such orders are brought forward.

Lord Roberts of Conwy: I, too, welcome the noble Lord, Lord Faulkner of Worcester, to his new office and to this gathering in particular. We are very grateful for the very detailed thought and work that has gone into the preparation of these orders relating to the legislative competence of the Assembly. I intend to comment briefly on the form and content of the orders, and I begin by affirming that special care must be taken with carers because the legislative regimes that deal with care arrangements, especially charges, differ in different countries within the United Kingdom. Of course, carers are becoming increasingly important to us as the population becomes more elderly and in greater need of care and carers.

They are particularly important to us in Wales because, as the 2001 census revealed, we have a higher proportion of carers than any English region.

As my noble friend Lord Glentoran pointed out, 11.7 per cent of the population-341,000 people-are carers, for the very good reason that we have a higher proportion of people with limiting long-term illness, chronic sickness and disability, as explained in paragraph 7 of the Explanatory Memorandum. I therefore understand the Welsh Assembly Government's anxiety to have legislative competence in this field to support regular carers in the ways described in the Explanatory Note to the social welfare order.

4.15 pm

Such is the legislative competence conferred that any cross-border issues that arise can, as I understand it, be amicably resolved by close liaison between the relevant authorities. Yesterday the Government published their Green Paper, Shaping the Future of Care Together. I hope that that togetherness embraces the National Assembly and that they will take account of the contents of the Green Paper before and as they legislate.

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