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Clause 60 — Promotion etc. of well-being

Orders of the Day — Government of Wales Bill — [2nd Allotted Day] – in the House of Commons at 4:15 pm on 28th February 2006.

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Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

With this it will be convenient to discuss the following amendments: No. 64, in page 35, line 28, after 'anything', insert 'within their powers'.

No. 65, in page 38, line 19, leave out clause 70.

No. 66, in clause 70, page 38, line 22, , at end insert 'reasonable'.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales 4:30 pm, 28th February 2006

I hope that my voice will be more robust today than yesterday, and that the House will bear with me if I start to fade again.

The amendments are designed to examine clauses 60 and 70. Unfortunately, we did not have time to discuss these clauses in Committee, but their selection for debate on Report gives us an opportunity to get inside the minds of the Government and the parliamentary draftsmen and find out exactly what the provisions mean. This debate also allows us to explore the ambit of the subjects that the clauses cover.

I have looked at the explanatory notes to the Bill, and what they say is worth sharing with the House. Clause 60, which covers "Promotion etc. of well-being", is described as follows:

"This clause provides the Welsh Ministers with a power to do anything which they consider is appropriate to achieve the promotion of the economic, social or environmental well-being of Wales. The power may be exercised for the benefit of the whole or any part of Wales or of all or any persons resident or present in Wales. If the Welsh Ministers consider that it would promote the economic, social or environmental well-being of Wales it may also be exercised in relation to or for the benefit of areas outside Wales or persons resident or present in any area outside Wales."

I have to express a little surprise, as I am sure the Minister will understand, because that is so badly drafted that it needs close examination.

The clause begins:

"The Welsh Ministers may do anything", and I would like the Minister to define "anything", because Ministers may do anything at all that they consider appropriate, without any qualification. They are to be the sole arbiters and have sole judgment. They can do anything whatever—not "anything within their powers"; there is no such qualification—

"which they consider appropriate to achieve any one or more of the following objects—

(a) the promotion or improvement of the economic well-being of Wales".

I challenge the Minister to give me some examples of the sort of thing that he thinks Welsh Ministers may do to improve the economic well-being of Wales, and why they need that all-encompassing power. Paragraph (b) mentions the social well-being of Wales. How does the Minister define that? Is it something that would make Assembly Members happy? Is that an appropriate objective? What is social well-being in the context of

"the whole or any part of Wales"?

Next, can the Minister define the term

"the environmental well-being of Wales"?

For example, there is some debate over the nuclear power station at Wylfa B, the jobs there, and the accompanying aluminium plant. Rightly, those subjects have been raised in the House and are of concern to Members. What might Welsh Ministers do in relation to that plant to improve or promote the environmental well-being of Wales? Subsection (1) is very broadly drawn.

Subsection (2) talks about anything that benefits

"the whole or any part of Wales, or . . . all or any persons resident or present in Wales."

I presume that that includes any visiting non-British people, and people coming across the border from England, or from Scotland. Where is the containment of the power? Where does the judgment lie? It lies back with Welsh Ministers, who can decide to do anything that they consider appropriate, without let, bar or hindrance.

Subsection (2) raises many questions in my mind, but if that were not broad enough, subsection (3) would begin to require some serious answers from the Under-Secretary, because it gives Welsh Ministers a

"power to do anything in relation to or for the benefit of any area outside Wales, or all or any persons resident or present anywhere outside Wales".

As I read it, that means that Welsh Ministers can do anything that they consider appropriate, with nobody else sitting in judgment on them, for any area or any country—even Ukraine, whose parliamentary system was prayed in aid in earlier debates, or anywhere else in the whole world. How does that sit with the devolved powers and the powers in schedule 5? This section appears to give Ministers the power to do anything for anybody, anywhere, at any time, and the only people sitting in judgment on that are themselves. Ministers have to consider whether their actions are likely to achieve one or more of the objects in clause 60(1), but that section is also at the discretion of Ministers.

Clause 60(4) starts to describe the powers, but it is so broadly drafted that it provides an open mandate. Ministers can

"enter into arrangements or agreements with any person".

That makes them competent to do anything that they decide is in promotion or improvement of the three areas that we have discussed. Ministers may also

"co-operate with, or facilitate, or co-ordinate the activities of, any person".

Is that provision within the devolved powers in schedule 5, or is the clause drafted more broadly?

Ministers may also

"exercise on behalf of any person any functions of that person".

I hope that they will not be able to exercise any of my functions on my behalf. We need an explanation of who are those persons, what sort of functions will they be exercising—[Interruption.] The Whip says, from a sedentary position, that I am rambling.

Photo of Kevin Brennan Kevin Brennan Assistant Whip (HM Treasury)

I said, "It's the Ram doctrine."

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

I thought that the hon. Gentleman said that I was rambling. My lip-reading skills are obviously not as good as they used to be. I am rambling slightly, because I am perplexed by this clause.

I call clause 60(d) the sleaze subsection, because it says that any Welsh Minister may do anything that they consider appropriate to further the aims in clause 60(1) by providing

"staff, goods, services or accommodation to any person."

Perhaps Welsh Ministers could provide me with a few staff. The Opposition can always do with staff, because support is thin on the ground for Opposition Members. The staff we have are very able, but perhaps I could apply to Welsh Ministers for more staff, or goods and services, or even accommodation when I visit Wales, because it would appear that such provision is within the ambit of clause 60.

Clause 70 is about money. It would give Ministers similar wide powers and I need a decent explanation of it from the Minister. The explanatory notes state:

"This clause gives the First Minister, the Welsh Ministers and the Counsel General the power to give financial assistance (whether by grant, loan or guarantee) to any person engaged in any activity which the Welsh Ministers consider will secure, or help to secure, the attainment of any objective which they aim to achieve in the exercise of their functions. Conditions may be attached to such assistance."

As if it is not sufficient that under clause 60 Ministers may do anything for anybody who is, in their judgment, furthering the aims in subsection (1)(a), (b) and (c), they can also give money, by way of a grant, loan or guarantee, to anybody, anywhere, who is engaged in any activity that

"Welsh Ministers consider will secure, or help to secure, the attainment of any objective which they aim to attain in the exercise of any of their functions."

So clause 70 is not even confined to the aims and objectives set out in paragraphs (a), (b) and (c) of subsection (1) of clause 60.

Would the provisions cover the granting of mortgages to members of staff? Subsection (2) of clause 70 notes that

"conditions . . . may be attached . . . requiring the repayment of the whole or any part".

It thus appears that Welsh Ministers could decide to be the mortgagors of their own houses or the houses of their staff. They could offer grants to businesses coming to Wales—indeed, any assistance whatever. How will the provisions sit with European legislation on offering grants? Under the Bill, anything that a Minister wanted to do in exercise of his or her functions could be accompanied by giving financial assistance to third parties.

Subsection (3) also requires explanation. It states:

"This section applies in relation to the First Minister and the Counsel General as in relation to the Welsh Ministers."

We have already debated the Counsel General and as I understand it that individual need not be an elected Member of the Assembly—anyone at all could be appointed—yet if the section applies to the Counsel General, that person can give

"financial assistance . . . to any person engaged in any activity which the Welsh Ministers consider will secure, or help to secure, the attainment of any objective which they aim to attain in the exercise of any of their functions".

It seems rather strange that the Counsel General, who is not elected, will have power to dispose of taxpayers' money. Why is the Counsel General included in subsection (3)?

I presume that the words

"This section applies in relation to the First Minister . . . as in relation to the Welsh Ministers" mean that the First Minister will be able to make similar decisions in relation to Welsh Ministers. If a Welsh Minister required a residence to further his aims, would the First Minister be able to provide the funding from taxpayers' money, perhaps on advantageous terms? We do not know what conditions would be attached, under subsection (2), to the repayment of any moneys paid out by the First Minister. Will it be a slush fund that allows anybody to have access to any money at any time to do anything that they want?

I could be wrong and it will be interesting to hear the Minister's interpretation of those two clauses, but as they stand, they would pass to the Assembly Government, to Ministers and to a possibly non-elected Counsel General, broad and sweeping powers with no let, stay or hindrance.

I have tabled two small and reasonable amendments and if, after I have listened to the Minister, I am not satisfied, I may want to vote on them. On page 35, at line 38 of clause 60, I propose the insertion of the words "within their powers", to act as a limit or brake on the provisions. Likewise in clause 70, I propose including the word "reasonable", because a test of reasonableness is needed on the wide powers granted under clauses 60 and 70.

I am sad that we did not have time to explore those matters in Committee, but I am grateful that we have been able to do so on Report. I very much look forward to what the Minister has to say about the two clauses.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

Perhaps I can help the hon. Lady. I will try to respond to all the points that she made, but first I should give a clear explanation of clauses 60, 70 and 71. Clause 60, on the promotion of well-being, has been included so that, together with clauses 70 and 71, Welsh Ministers will have available to them the wide general powers that UK Ministers have inherently as Ministers of the Crown. That is known as the Ram doctrine, which was established, if my memory serves me right, on 2 November 1945.

Given the nature of the Welsh devolution settlement, we believe that those clauses are the best way to give Welsh Ministers comparable general powers within their responsibilities. That will remove the uncertainty that relates to section 40 of the Government of Wales Act 1998. The provisions will empower the Welsh Assembly Government to pursue a range of actions for which there is no specific statutory power.

The hon. Lady asked for certain examples of how such powers will be exercised. They could include, for example, taking action to promote sustainable development and joint working with other public bodies to improve public services. She asked about the environment, and the powers could include taking action to promote energy efficiency in Wales. Another example is collaborating with other bodies, especially in the public sector, whose functions are not devolved—for example, supporting the police in tackling drug-related issues. Hon. Members have raised such issues on a number of occasions at Welsh questions.

A further example is providing appropriate information to prosecutors—this perhaps relates to the hon. Lady's question about the Counsel General—and regulatory bodies to assist them in considering whether to bringing cases to court. Another example is disseminating information that is of benefit to the public sector or the wider public—for example, joining in a recent campaign on responding to civil emergencies. Those are examples where Ministers do not have the power to intervene to take executive action, but those issues are in line with the responsibilities of UK Ministers. Section 40 of the Government of Wales Act 1998 gives Welsh Ministers certain powers, but these clauses will clarify their roles.

The hon. Lady asked about clause 70 and whether European law would apply to the issuing of grants, state aid and so on.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales 4:45 pm, 28th February 2006

The Minister has given some examples, but what limits will be placed on those powers?

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

First, there is a limit in that every bit of expenditure will be subject to the Audit Committee. The hon. Lady suggested that Ministers could offer mortgages to members of staff. Clearly, they would not be allowed to do that: the Audit Committee would jump most heavily on a Minister if such action was considered.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

I shall come to the limits of the word "anything", but I was responding to the question that the hon. Lady asked about European law. Clause 70 is subject to Community law rules on non-discrimination and the free movement of goods and services, so any action by a Welsh Minister will be constrained by Community law in that respect.

The hon. Lady asked about limitations on the power of well-being. Other limits are already set out in the Bill—for example, on human rights in clause 80, on Community law in clause 79 and on international obligations in clause 81.

Photo of David Jones David Jones Conservative, Clwyd West

I think that my hon. Friend Mrs. Gillan was expressing the concern that, on the face of it, these powers could exceed the powers that are conferred in relation to matters and fields that are devolved to Assembly Ministers. The Minister has already said that the powers would enable Assembly Ministers to exercise such functions "within the area of their responsibility". However, that phrase does not appear in the Bill. Could the matter not be simply resolved and clarified by adopting the wording that my hon. Friend suggests or that the Minister himself has just used?

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

I used that phrase because the Minister for Economic Development and Transport might, for example, want to start giving grant aid to a theatre company that wanted to tour in Europe. That is certainly a distinct possibility and it would be good to promote Wales in that way. The Welsh National Opera already does that. That is why I used the phrase "within their responsibilities". However, as in the case of UK Ministers, Assembly Ministers are not necessarily creatures of statute. They occasionally have to take Executive action that is outwith any legislative provision that they have. That is why we need the clauses in relation to well-being. This is not an unusual way of doing things. The Local Government Act 2000 already gives powers to local authorities to take action and expend money for the benefit and well-being of the people they serve.

Photo of David Jones David Jones Conservative, Clwyd West

Does the Minister recognise that the clause could give Assembly Ministers powers to exceed the powers that they already have by virtue of the devolution settlement? My hon. Friend Mrs. Gillan expressed that concern, but the Minister has not adequately addressed it.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

I am sorry if the hon. Gentleman does not feel that I have responded to him. All that we are trying to do with the clauses is provide the same powers that already exist in this place. Members do not complain about the additional powers that UK Ministers can exercise, even though Ministers have not got the right, by statute, to exercise those powers. I referred to the Ram doctrine earlier and although I will not bore the House by going through it, it gives a Minister the ability to exercise power when he feels that it is necessary, as long as he remains accountable to Parliament for those actions. Ministers in the Welsh Assembly will remain fully accountable to the Assembly for all their actions and any money that they expend, in exactly the same way in which UK Ministers are accountable to Parliament now.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

Will the Minister tell me whether the provisions were included in the original Government of Wales Act 1998 and, if so, whether they were in exactly this form?

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

The provisions were not in exactly this form, but we are putting them in this form because we are trying to clarify exactly what Ministers can do and what the limits are.

The hon. Lady also asked about a Minister's ability to act outside Wales. I touched on a good example. If the Welsh National Opera was doing a major tour of Europe that could be used to promote Wales and help economic development and tourism, the relevant Minister could subsidise part of that tour as a way of promoting well-being in Wales.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

I am grateful to the Minister for giving way again; at least we are having a dialogue on the matter. If Ministers are going to act within the provisions of schedule 5 and the devolved powers, why does it not say that in the Bill? Why is the Minister, at this stage, giving Assembly Ministers the same level and breadth of powers as full Ministers in the UK? Surely this is another example of the devolution settlement being breached and broadened without people appreciating it.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

No, to return to the point that I made earlier, section 40 of the Government of Wales Act 1998 already gives similar powers, but these clauses clarify the situation so that there is no confusion. Following advice, we believe that clarification in this form is necessary.

The hon. Lady was asking about Ministers' ability to exercise powers. These are executive functions to be exercised by Ministers and they will be subject to the scrutiny of the Assembly and, certainly, if any funding is involved, to the scrutiny of the Audit Committee.

Photo of David Jones David Jones Conservative, Clwyd West

I am grateful to the Minister for his generosity in giving way. Will he turn his mind to clause 60(4)(c), which gives Welsh Ministers power to exercise any function

"on behalf of any person"?

Would that give a Welsh Minister the power to exercise a function given to him on an agency basis by a UK Minister, for example?

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

The well-being power is there to assist the people of Wales. Clause 60(1) sets out the objects to which that power applies. The answer is yes, if it could be shown that an individual outside Wales could perform a duty that was to the benefit and for the well-being of people in Wales, that would not be outwith the clause.

The power to promote well-being is closely modelled on similar powers given to local authorities in section 2 of the Local Government Act 2000. Local authorities, too, were given that power to reduce uncertainty over their powers to act where there was no specific power relevant to what they wanted to do even though it would benefit people in their area. A similar provision was included in section 30 of the Greater London Authority Act 1999, for similar reasons. The power would not alter any existing function of Ministers of the Crown, and there are specific constraints on Welsh Ministers, such as the prohibition on doing anything incompatible with Community law, so those functions do not need to be restated. The power would not override the International Development Act 2002.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

The Minister appears to have made two conflicting statements. I think that I am correct in saying that, in response to my hon. Friend Mr. Jones, he said that under these clauses it will be possible for a Welsh Minister to exercise the functions of a UK Minister. However, he has just said that this provision does not alter the position of a Minister of the Crown. Perhaps I do not understand, but the two statements appear to be conflicting and I should be grateful for clarification.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

To clarify the point, I am certainly not suggesting that a Minister would be able suddenly to take on the functions of a UK Minister. I am suggesting that, if a UK Minister were in a position to assist the good people of Wales, and there was a requirement for funds to be provided, that would be possible under these clauses.

The amendments seek to remove or constrain the power to promote or improve the well-being of Wales to such an extent that it would become meaningless. It would create uncertainty over the powers of Welsh Ministers to act where there was no specific power relevant to what they wanted to do, even though it would be for the benefit of the people of their area. For the reasons that I have outlined, we believe that the power is necessary, as it has been for local government and the Greater London Authority.

Amendment No. 65 would remove clause 70, which would make no sense. The power already exists for the Assembly in section 85 of the Government of Wales Act, and is being transferred to Welsh Ministers by the Bill. The removal of the clause would restrict the ability of Welsh Ministers to carry out executive functions.

Amendment No. 66 is unnecessary. The power in the clause is identical to one in section 40 of the Government of Wales Act. Although the provision is for the Assembly as a whole, the function in question is an Executive function, which is better carried out by Welsh Ministers. Welsh Ministers are accountable for their actions. If their actions were deemed unreasonable, they would be subject to action by the Assembly or by the Audit Committee, and potentially to judicial review.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

I think that I touched on that. The Counsel General would be in a position to expend moneys to ensure that prosecutions took place, and I specifically mentioned that he could take action to assist other authorities in bringing prosecutions. Although he would not be given specific powers under schedule 5 or following the enactment of part 4, the Counsel General would be able to assist other authorities in bringing prosecutions; at present, no statute gives him the power to do that.

We have had a good explanation. I hope that I have reassured the hon. Member for Chesham and Amersham that the powers are not, as she suspects, huge and wide-ranging, unrestricted either by statute or by the Assembly. Far from it. We are making sensible arrangements so that Welsh Ministers can exercise Executive functions to benefit the people of Wales. I ask her to withdraw the amendment.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

I understand why, from time to time, Ministers—whether in Westminster or in the Assembly—need to exercise Executive powers, but I am not fully satisfied by the explanation that the Minister has given. A lot of points still need to be clarified, and it is unfortunate that we will not be able to do that at this stage. The fact that the clauses are closely modelled on provisions for the Greater London Authority and local authorities has little bearing, because, as we have often heard, the Assembly in Wales is different from the Greater London Authority and local authorities. If there are similarities, one would hope for consistency across government and that Ministers would apply the changes that they intend to make to the electoral system in Wales to the electoral arrangements for the GLA and the Scottish Parliament.

The way in which the Minister has presented his explanation has led to confusion. I am not entirely convinced that under the clauses as drafted it would not be possible for a Minister to take on the functions of a Member of this House or a member of the Government on an agency basis. His assurance that the clauses clarify and limit what Ministers can and cannot do is as nothing, because there is nothing limiting in them. Ministers may well be subject to scrutiny by the Assembly—so they should be—and by the Audit Committee; none the less, the powers given under the two clauses remain unfettered.

I want Welsh Ministers and the Assembly always to do things that assist the people of Wales, but I do not want them to have powers that could be abused or are wider than they should have at this stage. To bring Welsh Ministers into line with UK Ministers is yet another way of devolving by the back door.

Once again, the Government should have been honest about devolution, and perhaps they should have gone the whole hog and held a referendum. However, they have not done so—they are salami-slicing, as the Father of the House has said. The provision is another slice of salami, and it is being made by stealth, rather than in an open fashion. Amendments Nos. 64 and 66 are small amendments, as I mentioned. They do not fundamentally alter Ministers' ability to ensure the well-being of Wales, but they clarify the position and provide the limits that the Under-Secretary believes exist in clauses 60 and 70 as drafted.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I sense that the hon. Lady may wish to divide the House so, for the record, I wish to say that, for once, I was persuaded by the Minister's argument. It is a judgment rather than a principle, but is she not being a little pedantic in pursuing her concerns? The Minister made a cogent argument about the Government's intentions and, in my assessment, it would be useful, rather than harmful, to retain those provisions as drafted.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

I am grateful to the hon. Gentleman. The amendments do nothing but set fairly broad parameters. By adding the words "within their powers" to clause 60 we would ensure that we stick both to the letter of the law and to the intention behind devolution by limiting Ministers' powers. That may be taken as read, but I would prefer to see such a limitation included in the Bill. Likewise, the insertion in clause 70 of the word "reasonable" would not undermine the spirit of the provision, and would ensure that a test of reasonableness can be applied to the broad powers of financial assistance in the clause.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

As the hon. Lady says, she is being generous and, indeed, modest. I think that she is saying that amendment No. 64 does nothing but clarify clause 60. Taken as a package, however, the amendments do rather more, and would remove the clause.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

I merely wish to press amendments Nos. 64 and 66—I do not wish to press the remaining amendments any further. I wish not to wreck the existing provisions, but to provide clarity and certainty, which have not been afforded by the way in which the Bill has been drafted.

May I hasten to comfort the hon. Gentleman? I certainly do not wish to remove clauses 60 and 70. In fact, the original proposal to delete those clauses was designed to enable Committee members to discuss the subject. We were not given the time to hold such a discussion in Committee so, unfortunately, we must do so on Report. The insertion of the words "within their powers" in clause 60 and the addition of the word "reasonable" to clause 70 do not wreck the existing provisions. I have gone a long way towards accepting the Minister's explanation, and the amendments have the best interests of the Welsh people and Wales at heart. However, they provide a safeguard so that Ministers act within their powers. They offer, too, a test of reasonableness on the financial assistance that Ministers may, or may not, give.

I accept the Minister's explanation about the Counsel General, but, again, a test of reasonableness would not go amiss. I am rather sad that the Minister could not accept those small amendments, but I should not be surprised as there has been very little give and take at the Dispatch Box during the passage of the Bill. It is a shame, however, as consensus could easily have been achieved on many of these issues. With a heavy heart, I seek the leave of the House to press amendments Nos. 64 and 66 to a vote, and I urge my hon. Friends to join me in the Lobby.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 64, in page 35, line 28, after 'anything', insert 'within their powers'.—[Mrs. Gillan.]

The House divided: Ayes 221, Noes 282.

Division number 176

See full list of votes (From The Public Whip)

Question accordingly negatived.