Rather unexpectedly, this part of the Bill has been thrown into sharp focus. Not for the first time in this Committee, I have an admission to make. On Second Reading, I did not expect that as much emphasis would be placed on this clause in speeches from Government Back Benchers as was the case. I was slightly surprised. I would not mind betting that some on the Front Bench were slightly surprised as well about both the length and the nature of some of those speeches. However, that did, of course, alert me to certain serious matters that I must raise today in relation to the clause.
I am pleased to see that the Under-Secretary of State for Wales is here specifically in respect of clause 25. I felt a little sorry for him when we debated the earlier clauses as he sat expectantly waiting for us to hare towards clause 25, only to be treated to considerable debate on earlier clauses. However, I am pleased that he is here now, and I have no doubt that he will want to speak about this matter at some length.
For the benefit of the Committee, let me make it clear that the clause makes amendments to part 1 of schedule 5 to the Government of Wales Act 2006, so as to confer enhanced legislative competence on the National Assembly for Wales. These matters include, first:
“the provision of facilities for post-16 education and training”; secondly, provision about institutions
“concerned with the provision of further education”,
including provision for the establishment and dissolution of such institutions and bodies conducting such education; thirdly, collaboration in relation to the delivery of post-14 education; fourthly, financial resources for education or training provided by further education institutions, post-16 education or training, and research related to such education and training; fifthly, inspection of
“education or training provided by institutions concerned with the provision of further education...post-16 education or training...the training of teachers....and specialist teaching assistants for schools” and other services such as career services; and sixthly,
“The provision of advice and information...and the carrying out of studies in relation to...education or training provided by institutions concerned with the provision of further education...post-16 education or training...the training of teachers....and specialist teaching assistants for schools” and other services such as career services.
Under the Government of Wales Act 2006, the National Assembly for Wales can seek to enhance its powers, given parliamentary consent, by way of a new procedure known as a legislative competence Order in Council. I do not know how much members of the Committee know about those orders. I have no doubt, Mr. Atkinson, that, given your encyclopaedic knowledge of the affairs of this House, you are familiar with them, but, to be frank, I certainly was not until I looked at clause 25. I now have a rather better knowledge of them than I would otherwise have had, and I have learned that the Government can indeed use those orders for the purpose that I have described. Indeed, that is the nature of those Orders in Council. Yet, in this instance, the Government have chosen to add schedule 5 to the Government of Wales Act 2006 by primary legislation. In other words, they have opted in this Bill to add to that competence rather than pursuing an alternative route.
Just last month, the Welsh Affairs Committee reported its concerns about the continued use of primary legislation for this purpose. To some degree, that reflects the lively speeches that we heard from Welsh Members on Second Reading who were anxious about consultation, the process and whether the Bill was the right vehicle to do what it intends to do.
This is a question about clarification, and it may be that the Minister has the answer. I wonder whether the Government chose to do this in this way because the 2006 Act had not come into force when this Bill began being debated in Parliament. Maybe the Minister will be able to answer me.
I wondered that too. I think that we will find, when the Minister responds, that he will not use that as his defence, because, having identified that as a possibility, I researched the issue and found that that was probably not the case—I see that the Minister is nodding, if not speaking, to confirm my analysis.
The Welsh Affairs Committee reported:
“We are concerned that continuing to use primary legislation to extend the powers of the National Assembly (in a parallel procedure to adding matters by way of Legislative Competence Orders) will mean that matters introduced in this way will escape the detailed arrangements for pre-legislative scrutiny”.
That is the point that hon. Members made on Second Reading. They felt that if the alternative process had been adopted, there would have been closer analysis of some of the proposals through pre-legislative scrutiny.
The Select Committee also said:
“It is unlikely that a single clause in a wider Bill would be subject to the same degree of scrutiny as a draft LCO, especially if the Bill is long and complex and the relevant clause appears towards the end of it...We are also concerned that the use of primary legislation denies the opportunity for joint working between the Welsh Affairs Committee and an Assembly committee in the pre-legislative scrutiny of proposed LCOs...We are concerned that to continue to add matters by primary legislation could therefore be a device for a general, rather than a specific, extension of Assembly powers, which at the same time negates the opportunity for specific and detailed pre-legislative scrutiny either by a committee of the National Assembly or by the Welsh Affairs Committee.”
For those reasons, and having looked closely at the Welsh Affairs Committee report on legislative competence Orders in Council, I have five specific questions for the Minister. Having come here and listened to the rest of the debate, he will get his money’s worth, and so he should.
Why was it decided to use primary legislation in this instance? I am aware of the difficulties of the minority Labour Administration in Wales—it is not easy now in Wales, or anywhere else, for the governing party. I congratulate my colleagues in the Welsh Conservative party on their splendid result in the recent Assembly elections. There are now 12 Conservative representatives in the Assembly.
By using parallel procedures, the Government have created confusing arrangements under which the extension of significant powers escapes detailed pre-legislative scrutiny by either the Welsh Assembly or the Welsh Affairs Committee. Some people have said to me—I do not think that it is the case, but it is a lively matter, particularly among Welsh colleagues—that the Government did not want the matter to be dealt with in the other way, because Welsh representatives would have created more fuss, would have asked more difficult questions and would have been more critical of some aspects, so it was easier to get the legislation through on the sly. I do not think that that is the case, because I do not think that these Ministers operate in that way. With their answers to my questions, they need to reassure those who are making such claims, however. On Second Reading, hon. Members expressed their concern. The former Secretary of State for Wales, no less, the right hon. Member for Torfaen (Mr. Murphy) said:
“I am concerned, however, about the way in which we deal with the pre-legislative scrutiny of Bills and orders that give the National Assembly for Wales new legislative powers... this is not quite what was expected when the Government of Wales Bill was debated in this place.”—[Official Report, 21 May 2007; Vol. 460, c. 1010.]
When the former Secretary of State issues an indictment of that strength, it is an important matter.
The right hon. Member for Islwyn (Mr. Touhig), the name of whose constituency I could not pronounce at the time, although I have been working on it—[Interruption.] I have not been working on it hard enough, by the sound of it, but I have been doing my best. He added:
“I am troubled—as was my right hon. Friend—by clause 25, which makes amendments to the Government of Wales Act 2006. If the clause is approved, it will transfer substantial responsibility to legislate for further education and training from Parliament to the National Assembly. Although I do not oppose the idea of using framework legislation to transfer power from Parliament to the Assembly, I think it wrong to do so without full parliamentary scrutiny of such a change to the devolution settlement...I am particularly worried after reading the memorandum prepared by the National Assembly in support of clause 25 and provided for us by my hon. Friend the Under-Secretary of State for Wales. The memorandum implies that the format set out in clause 25 for giving the National Assembly primary legislative powers will become the norm.”—[Official Report, 21 May 2007; Vol. 460, c. 1015.]
I hate to see the hon. Gentleman troubled, because when he is troubled, the speeches get longer and we shuffle more in inattention. He is making heavy weather of the issue. Devolution is a process; it is not a full stop. What has gone before is not the end of the matter. It is a process of transferring more powers to the Assembly. Why does not he address the principle? Does he agree with the transfer to Wales of these powers?
The principle of transferring powers stands alongside the means of transferring them. If the allegation made by former Welsh Ministers that this matter has not been handled properly has any substance, then it deserves proper airing in this Committee. I am not making heavy weather of this. Let us be honest, the Government would not have put a Welsh Minister in this Committee if they did not think that it was a big deal. If the Government had expected the clause to be dealt with on the nod, the Minister would not be here ready to deal with it.
I have no doubt that Ministers and Whips were as surprised by the speeches on Second Reading as I was. Having looked at the clause, I think it is an important matter that warrants a little consideration in Committee. However, mindful of the comments of the hon. Member for Great Grimsby, I shall draw my remarks to a conclusion and put my four other questions for the Minister in short order.
Before I do so, however, I simply want to point out that the Secretary of State for Wales said this in a written answer to the right hon. Member for Torfaen:
“To assist parliamentary scrutiny, all framework powers granting wider and more permissive powers to the Assembly will be accompanied by an explanatory memorandum setting out the policy context underlying the proposals. Copies will be sent to all Welsh MPs and will be placed in the Libraries of both Houses.”—[Official Report, 11 January 2007; Vol. 455, c. 661W.]
In those circumstances, it would have been right and proper to have made that information available to members of the Committee. I have checked, and I have not received the explanatory memorandum, and I have spoken to the hon. Member for Brent, East, who has not received it, too. I do not know whether any of my hon. Friends have received it. Certainly, when I went to the Library last night, the staff there could not locate it. I finally came across it this morning, when I returned to the Library—following a contact with the Department, it had become available. I got it about 10 minutes before I entered the Committee at 9 am. I am concerned about that. I do not suspect any lack of good will, but I certainly think that that was not appropriate, given the assurance that was made about fully informing Members in the way that responsible Ministers normally do. I hope that the Minister will say something about that.
The memorandum implies that the format set out in clause 25 for giving the National Assembly for Wales primary legislative powers will become the norm. Can the Minister confirm that it will become the norm? If so, what measures for pre-legislative scrutiny will be established? Has the clause been referred to the Welsh Affairs Committee, and has the Committee commented on it? If framework papers such as clause 25 extend the scope of the Welsh Assembly, are they not subject to scrutiny by the Welsh Affairs Committee in the same way as legislative competence orders?
I think that the hon. Member for Great Grimsby is right. In essence, this is about transferring power, which is not in dispute. What is in dispute is the way in which the Government have gone about it. The Government should be held to account, particularly when Members from both sides of the House are raising serious questions about whether the process allowed proper comment, scrutiny and discussion before we reached this stage.
I should like to make a few brief remarks. First, Liberal Democrats are very much in favour of transferring more powers to the Welsh Assembly. If we had our way, we would transfer all sorts of other things, but that is not under discussion today. I am less concerned about the process than the Conservatives. However, I am sorry that we did not have the chance to consider the explanatory memorandum and hope that we will have the opportunity to do so on Report, if questions arise.
Finally, it is notable that clause 17 does not allow Welsh colleges the freedom to award foundation degrees, and clause 25 does not give the Welsh Assembly the power to confer that freedom. Will the Minister tell us the reason for that decision?
This is my first contribution to the Committee’s debates, Mr. Atkinson, and I belatedly welcome you to the Chair.
Some interesting points have been raised. As the hon. Member for South Holland and The Deepings explained, he might not have spoken were it not for the contributions made by my right hon. Friends the Members for Torfaen and for Islwyn. Both are genuinely my friends: I was the Parliamentary Private Secretary to the former when he was Secretary of State for Wales, and I was the Whip and business manager at the Wales Office when the latter was doing my present job. However, those comments did not come as a surprise to the hon. Gentleman. I have had a number of discussions with my right hon. Friends; they have genuine concerns, and I shall address them today.
I owe the Committee an apology about the explanatory memorandum. Two Acts have used primary legislation to pass legislative competence to the Welsh Assembly. The first was the NHS Redress Act 2006, and the second was the Education and Inspections Act 2006. Both went through without great comment being made on the transfer of powers to the Assembly. The practice followed for the Bill was the same as used for those Acts. I wrote to all Welsh Members of Parliament and to the Welsh affairs Opposition Front-Bench spokesmen in both Houses—in the Commons, it is the hon. Member for Chesham and Amersham (Mrs. Gillan)—to explain what was happening, drawing their attention to the relevant clauses and enclosing an explanatory memorandum.
It was an omission that the Committee did not receive that explanatory memorandum, and I apologise. It would certainly have been better if hon. Members had had a copy to hand. However, irrespective of the experience of the hon. Member for South Holland and The Deepings, a copy was in the Library, and it is unfortunate that it was not readily to hand when he first requested it. I hope that he accepts my answer. We are not trying to get the provision through on the sly, or we would not have written to Members of both Houses informing them that the relevant clauses allowed the transfer of powers and provided them with a copy of the explanatory memorandum.
The hon. Gentleman raised a number of questions—he said that there were four or five, but I counted only three, so perhaps there were some sub-questions. He asked why the primary legislative route had been taken rather than the Order-in-Council procedure. The answer is simple. It is a question of timing. At the moment, the National Assembly for Wales is conducting an independent review of further education in Wales. That review will be reporting in the autumn. If, as my right hon. Friend the Member for Islwyn wanted, we were to wait until the report was completed and thus have far more detail about what was to be placed in a framework power or an Order in Council, there would be considerable delay. In fact, following the Government of Wales Act 2006, there are two routes through which legislative competence can be transferred to the Assembly, namely primary powers and the Order-in-Council procedure.
Because the Order-in-Council process—an hour and a half debate in this place and an hour and a half debate in the other place—is not amendable, we have encouraged the Welsh Affairs Committee to undertake the pre-legislative scrutiny of Orders in Council, although we cannot demand that it does so. We have encouraged it to take on that role, because the opportunities for Members of this House and of the other place to scrutinise Orders in Council are extremely limited. Orders in Council are unamendable and, although they are debatable, the answer at the end of the debate is either yes or no.
We have always argued that we already have sufficient powers to examine the proposal to transfer the competence from this place to the National Assembly—indeed, we are scrutinising the clause today—and we are drawing attention to these matters by the distribution of the explanatory memorandum to relevant hon. Members. I am sure that we will give an adequate response to the Welsh Affairs Committee report that highlights the issue. The open evidence sessions that the Government have introduced at the beginning of Public Bill Committees provide a further opportunity for scrutiny.
Because of the legislative timetable, the problem for any Government, irrespective of their views about pre-legislative scrutiny—this Government are great advocates of pre-legislative scrutiny and of draft Bills—is that there is not always time to provide a draft Bill, to inform a Select Committee that a particular Bill is being produced or to allow for that Committee to conduct pre-legislative scrutiny. The Government’s record on having tried to improve the scrutiny of our legislative process is excellent. In our response to the Welsh Affairs Committee, we will highlight the issues and mention some of the ways in which we can assist not only that Committee but all Members to scrutinise the matter as much as possible.
The Minister is dealing with the matter in a considered and professional way. He seems to be saying that it is sometimes better to handle matters through primary legislation, because that allows for the sort of full and open debate that we are having here. However, the Welsh Affairs Committee is particular, as he has identified, about the importance of pre-legislative scrutiny, especially in the sort of case in which, in its terms, primary legislation could be a device for a general, rather than a specific, extension of powers.
The Bill has had a long journey through the House. It started in the Lords some time ago, and it has been a cause of frustration among Opposition Front Benchers that it has taken so long to reach this Committee. Was the Welsh Affairs Committee involved at all—that is one of my five questions, of which I shall remind the Committee at the end—in this piece of legislation? If it was, although the Minister’s points are being made in good faith, we still have a problem.
My problem is that I cannot request the Welsh Affairs Committee to undertake any inquiry or any pre-legislative scrutiny, so it was not invited to do so. However, every member of that Committee received a letter signed by me, including a copy of the explanatory memorandum, which goes into considerable detail about what is proposed. I know all the Committee members extremely well, including the three Conservative members of the Committee and the Conservative Front-Bench spokesman. If they had genuine concerns about the Bill and what was being transferred to the Assembly, they would have drawn them to the attention of the Chairman and requested some form of inquiry or pre-legislative scrutiny. They have had time to do that, and I assume that they decided that they did not want to, so it was not a question of my inviting them. I drew to the attention of every member of that Committee that the clause was going through the House, and I provided an explanatory memorandum. It was for them to make that decision, which I could not direct them to take. I hope that the hon. Gentleman accepts that point.
I have touched on the explanatory memorandum and what the norm will be. We will cover this in our response to the Welsh Affairs Committee report. We will provide every opportunity, given the time constraints in our legislative programme, for pre-legislative scrutiny. We are not in the business of trying to slip any of this through. In this case, even though there has been criticism, we were forewarning people of what was coming through and what was being proposed.
I emphasise that I have no doubts about the Minister’s good will. What discussions did he have with the Assembly? Presumably there were formal discussions with the Assembly about this important change. What form did they take, when were they and with whom?
There is a process between officials in the Department for Education and Skills and the Department for Education, Lifelong Learning and Skills in the Assembly. Once it was known that the Bill was coming, the process of discussions at official level to bring forward a framework power started. The White Paper preceding the Government of Wales Act 2006, which was published in September 2005, identified that one of the ways to give legislative competence to the Assembly was through this primary legislative route, where framework powers would be included, where appropriate, in UK or England and Wales pieces of legislation. We flagged that up then, and since then we have had the NHS Redress Act 2006 and the Education and Inspections Act 2006, which have given framework powers in those areas.
I hear what the Minister has said about discussions between officials, but for the record there have been no formal discussions with Members of the Assembly. There has been no opportunity for the Assembly to comment on or discuss the implications of this change in primary legislation, which is quite significant in respect of further education in Wales.
No, that is not the case. I attended the Education and Lifelong Learning Committee in February—it is their equivalent of our Select Committee—to answer questions from Assembly Members on this Bill, the framework powers and so on. There has been that relationship. I also have regular bilateral talks with Assembly Ministers, where these matters are discussed. There has been considerable involvement by the Assembly itself in taking forward and developing the clause.
I think that I have responded to all the hon. Gentleman’s questions and points. The hon. Member for Brent, East, going back to clause 17, asked why clause 25 does not give further education colleges in Wales the power to award foundation degrees. Wales is a small country with only 25 FE colleges. Its further and higher education consortia have a good reputation for working together. They enable education institutions to provide a wide range of opportunities for learners through the sharing of resources, such as staff, equipment and infrastructure. The current evidence base suggests that delivery should continue to be via consortia arrangements between further and higher education providers.
The FE colleges in Wales are not demanding degree-awarding powers. One or two might be, but others are perfectly satisfied with the current consortia arrangements that they have with HE institutions. As I said in my response to the hon. Member for South Holland and The Deepings, however, an independent review of further education in Wales is under way, so the issue will be raised by Fforwm, which represents FE institutions in Wales. Individual colleges may also make their case and the review will consider that.
If there is a clear recommendation that degree-awarding powers be given to FE institutions in Wales and the Assembly agrees with it, there will be the option to bring that forward as an Order in Council, but there is not anywhere near as much pressure in Wales as there is in England for FE institutions to have degree-awarding powers. That is why the measure has not been included in the clause.
I am conscious of the time. I think that I have responded to all the points that hon. Members have made.
I should like to press the Minister further on the comments of my hon. Friend the Member for South Holland and The Deepings regarding consultation with Welsh Assembly Members. The Minister suggested that there was a significant level of consultation with them, but the right hon. Member for Islwyn said on Second Reading that no consultation had taken place. Was he just badly briefed? Was he out of touch? Why would he say that no consultation had taken place? A trend seems to be developing: no consultation with the universities, no consultation with the Assembly. It all sounds a bit haphazard and rushed.
I reassure the hon. Gentleman that there was wide consultation. Fforwm, which is the equivalent of the Association of Colleges in England, is aware of the proposals and has welcomed them. As I said, I attended and gave evidence to the relevant Committee in the Assembly. Of course, we will not know the precise detail of what the Assembly will ultimately propose until the independent review has reported in the autumn. If the clause is passed by the House, the Assembly will bring forward an Assembly Measure, which is primary legislation— the equivalent of an Act of Parliament—that goes through exactly the same level of scrutiny as does primary legislation in this place. At that point, it would consult on the detail of the Measure.
I am sure that the hon. Gentleman was making a genuine point, but I can assure him that there will be considerable consultation, and not just through the process of the independent review. Once that review makes its recommendations, and if they are accepted by the Assembly, there will be thorough scrutiny of any Assembly Measure.
The clause delivers the deepening of the Welsh devolution settlement, which is UK Government policy. It ensures that the National Assembly for Wales has the power that it needs, when it needs it, to debate and determine the appropriateness of proposals for the development of further education in Wales that are put forward by the Welsh Assembly Government. It is, therefore, an important clause and I hope that the Committee will give it full support.
I am grateful to the Minister for coming to the Committee and giving us the benefit of his advice. I asked five questions. First, I asked why it was decided to use primary legislation in this instance. The Minister said that it was because it would enable us to have a wider debate—I guess—on the subject. That seemed to be the inference of his answer. Secondly, I asked him why the explanatory memorandum was not sent to members of the Committee, and he has generously apologised for that oversight. I think that we have learned a lesson from that oversight and in future it is absolutely necessary that that type of material is made available to members of the Committee. Thirdly, I asked him whether this process was going to become the norm, in terms of the use of primary legislative powers. I am not absolutely sure that I received an answer to that question. Forgive me, but I am going to ask him to return to question three.
On that point, there are two routes to confer primary legislative powers on the Assembly. One is through the Order in Council process; I did not want to go on at huge length about that, but I think that I explained it. The second is through primary legislation in this place.
Perhaps I ought to take a step back, to explain matters. The White Paper that we published in September 2005 addressed the issue of how to enhance the legislative capability of the National Assembly for Wales, following on from the Richard report a few years before. The problem that was identified was that the Wales Office, through the Welsh Assembly, had to compete with all other UK Government Departments for a slot in the legislative process. We felt that that was wrong. Therefore we proposed two routes for giving the Assembly enhanced powers. One is the Order-in-Council process, which is part 3 of the Government of Wales Act 2006. The other route, which was announced in the White Paper, was that, where appropriate, a UK Government Department would draft its legislation to allow these framework powers to transfer primary legislative powers to the Assembly. So, that process will be the norm whenever a suitable vehicle—a platform in UK legislative terms—comes along. If there is not such a suitable vehicle and the Assembly needs the legislative competence, it can gain it through the Order-in-Council process.
The Minister for Higher Education and Lifelong Learning, my hon. Friend the Member for Harlow, was referring to the fact that it is not since the early 1990s that we have had a Further Education Bill going through the House. Obviously, that would be far too long a period of time for the Assembly, which has all the Executive functions that my hon. Friend has but, unlike my hon. Friend, does not, at the moment, have the ability to legislate. That is why we will use UK Government Bills as a platform to transfer powers to the Assembly, in a process that is properly scrutinised by this place.
I thank the Minister. What is emerging from this debate is that, in its response to the Welsh Affairs Committee, the Government will clarify exactly when these different routes are appropriate, and it may depend on the legislation itself. Alternatively, it may depend on the legislative history of the subject area, in the way that the hon. Gentleman has just described. I would even imagine that it may depend on the complexity of the material and therefore the need for detailed pre-legislative scrutiny. There is beginning to emerge, certainly on this side of the Chamber, an understanding of precisely where the Government’s thinking is leading. It is an iterative business, and I guess that as the Government respond to the welfare state, within the dialogue that takes place between them, that will all become clearer.
For the record, the fourth and fifth questions—so that Hansard can get an absolutely accurate picture of every word that I issued—were about whether the matter had been referred to the Welsh Affairs Select Committee and whether it had been invited to comment. The hon. Gentleman told us in response that it had been “notified”, but that it had been up to the Committee to decide what to do, rather than him. Finally, the answer to my fifth question—whether the Committee had commented—is clearly no, given the comments that were made on Second Reading and elsewhere.
This has been helpful. We are learning. Perhaps if there had been a greater exchange of information in all kinds of ways, the comments that were made on Second Reading, which stimulated the detailed discussions that we have today, would not have been made. However, in a way, perhaps it is good that we have had those discussions, because they have allowed us full discussions of this process, in the way that the hon. Gentleman has dealt with the matters. We will not want to divide the Committee.