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Government of Wales Act 2006 (Consequential Modifications and Transitional Provisions) Order 2007

rose to move, that the draft order laid before the House on 26 March be approved. The noble Lord said: My Lords, the Government of Wales Act 2006 received Royal Assent on 25 July 2006 and is due to come into effect fully following the appointment of the First Minister after the Assembly elections in May this year. The 2006 Act already makes a number of consequential modifications to other enactments which are set out in Schedule 10 to the Act. It also makes a number of transitional provisions which can be found in Schedule 11to the Act. This order makes further consequential modifications and transitional provisions under powers in the 2006 Act. The Select Committee on Delegated Powers and Regulatory Reform considered these powers and reported on them in its 17th report of the 2005-06 Session. The committee was content that the Secretary of State should have the power to make such modifications and transitional provisions. There is a similar power to make consequential modifications in Section 105 of the Scotland Act 1998, which mustbe read with Sections 112 and 113. The power in Section 160(2) of the 2006 Act to modify an Act of this Parliament is subject to affirmative parliamentary procedures. The powerin Section 162(2) of that Act to make further transitional provision is generally subject to the annulment procedure before this Parliament. However, in cases, such as in this order, wheresuch provision includes amendments to specified paragraphs of Schedule 11 to the 2006 Act, then even the transitional provisions are subject to affirmative procedure before this Parliament, hence our debate here today. Noble Lords can therefore be assured that this order is being subjected to the more rigorous scrutiny of the affirmative procedure in this place and in the other place. With respect to the Secretary of State’s power to make transitional provisions by order, the committee considered that where that power is used to amend Schedule 11 to the 2006 Act, the affirmative procedure must apply.  The transitional provisions contained in this order amend Schedule 11 and are, therefore, also subject to the affirmative procedure. In terms of volume, the greater part of thisorder consists of consequential modifications toother enactments.  These modifications are set out in Schedule 1 to the order. I do not intend today to go through and explain all these modifications individually.  The Explanatory Memorandum explains what eachof the modifications does.  However, I believe it would be worth explaining the context in which the modifications are made, and why they are consequential on the provisions of the 2006 Act. At present, as noble Lords will be aware, the National Assembly for Wales is a corporate body, and there is no legal separation between the Assemblyand the Assembly Government.  After the Assembly elections in May, there will be legal separation, so that the Assembly as legislature is formally separate from the Assembly Government, including the Welsh Ministers, as Executive.  In addition, the Assembly will havenew legislative powers to pass Assembly measures, and the executive functions that the Assembly currently exercises will transfer to and vest in the Welsh Ministers instead. Those executive functions transfer at thetime of separation to the Welsh Ministers underparagraph 30 of Schedule 11 to the 2006 Act. Many of those executive functions are functions that have been given to the current Assembly in or under Acts of Parliament.  As a result of the transfer of those functions, other references to the current Assembly in those Acts often also need to change, for example, to references to the Welsh Ministers. Paragraph 32 of Schedule 11 to the 2006 Act makes provision for such references to the existing Assembly in other enactments, including in other Acts of Parliament, to be construed as references to the Welsh Ministers, or indeed to the First Minister, Counsel General, Assembly commission or new Assembly, as appropriate depending on where the relevant function has been transferred. However, where that general glossing provision would not give the correct result, or where it is thought clearer to make the amendments directly to the legislation in question, these have been provided for in this draft order. Some of the consequential modifications to other Acts made by this order are required because ofthe structural changes under the new devolution settlement, in particular the legal separation of the legislature from the Executive, and because of thenew roles that the new Assembly and Assembly Government have as a result. An example of this is the modifications to the Local Government Act 1998, which are in Schedule 1, paragraphs 25 to 30 ofthe order. Without these modifications, the functions ofthe existing Assembly in relation to making local government finance reports would merely transfer to the Welsh Ministers, in accordance with paragraph 30 of Schedule 11 to the 2006 Act. However, as a result of the modifications in this order, while the function of making such reports will be a function of the Welsh Ministers, there will also be a role for the new Assembly in scrutinising and approving these reports.  The new Assembly’s scrutiny and approval role is sensible and appropriate, in the context of the legal separation of the legislature and executive. In addition to the modifications required as a result of the structural changes, there are also modifications required because the mechanism in paragraphs 30 to 32 of Schedule 11 to the 2006 Act cannot operate to achieve the textual amendments which are necessary to take account of the new devolution arrangements under the 2006 Act. For example, Section 21A of the Sex DiscriminationAct 1975, as amended by the Equality Act 2006, makes it unlawful for a public authority to carry out a discriminatory act in exercising its functions. However, under the Sex Discrimination Act, this prohibition does not apply to certain listed functions. The listed functions currently include, among other things, preparing and making Bills and Acts of this Parliament and of the Scottish Parliament. This order adds measures, proposed measures, Bills and Acts of the National Assembly for Wales to that list. The preparing, considering and making of subordinate legislation by the current National Assembly for Wales already appears in the list. However, this order changes the reference to the Assembly to a reference to the Welsh Ministers, the First Minister for Wales or the Counsel General to the Welsh Assembly Government. That is because they, rather than the Assembly, will have the functions of making subordinate legislation under the new devolution arrangements. Noble Lords may have noted that paragraph 4.6 of the Explanatory Memorandum discusses the National Assembly for Wales (Diversion of Functions) Order 2007, and the relationship between that order and this one. The diversion of functions order was considered by the Assembly in plenary on 21 March, and was made by Her Majesty in Council on 4 April. The diversion of functions order transfers to the new Assembly certain functions that would otherwise be transferred to the Welsh Ministers under paragraph 30 of Schedule 11 to the 2006 Act. The provisions of the diversion of functions order should be read with the consequential amendments made by this order—for example, in relation to the Food Standards Act 1999—to see the full picture in terms of how other Acts will operate in the light of the new devolution settlement in Wales. I have spent most of my time discussing the consequential modifications aspect of this order, but I would also like to discuss briefly the transitional provisions contained in the order. Schedule 11 to the 2006 Act, as I have already mentioned, contains a large number of transitional provisions, to accommodate the change between the current devolution settlement and the new one. At paragraphs 33 to 35, it tackles the problem of how to provide for legislative procedures—that is, affirmative or negative or even no procedure—to the exercise of Welsh Ministers’ functions of making subordinate legislation. In future, Acts and Assembly measures that give powers to make subordinate legislation to the Welsh Ministers will also specify the legislative procedure that is to apply in respect of that subordinate legislation, whether it has to be approved by a resolution of the Assembly before it can be made, or whether it can be made without such a resolution but is subject to annulment by the Assembly. However, the powers to make subordinate legislation that are currently vested in the Assembly—and will in future be vested in Welsh Ministers—are not subject to any specified legislative procedure.  That is because the subordinate legislation is made by the Assembly, a democratically elected body, and it is for the Assembly itself to decide what procedures it will follow in making subordinate legislation.  Therefore, the Assembly’s Standing Orders make certain provision for procedures to be followed in exercising powers to make subordinate legislation. Now that those powers are to be vested in the Welsh Ministers, provision is to be made for an Assembly legislative procedure to apply to them. Paragraphs 33 to 35 of Schedule 11 provide for that in most cases, but since the 2006 Act received Royal Assent, we have discovered further powers to make subordinate legislation which are not caught by paragraphs 33 to 35, and in respect of which, therefore, no legislative procedure would apply under the new devolution settlement.  We are picking up those powers, along with those conferred on the Assembly since the passage of the 2006 Act, in this order, so that an appropriate procedure applies to them.  The powers and procedures are set out at paragraphs 4 and 5 of Schedule 2 to the order. As I have outlined, this order, in all its detail, is necessary to implement fully the policy contained in the Government of Wales Act 2006. I commend the draft order to the House. I beg to move. Moved, That the draft order laid before the House on 26 March be approved. 14th Report from the Statutory Instruments Committee.—(Lord Evans of Temple Guiting.)