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National Assembly for Wales (Legislative Competence) (Education and Training) Order 2008

My Lords, like the noble Baroness, Lady Finlay, I come to praise this order. I do so because it meets the criteria that emerged from the exhaustive discussions we had on the Government of Wales Bill about how to assess or judge an order. Three elements emerged from those discussions—three criteria to test whether we should—or should not—approve an order. The first is whether there is proper justification for seeking such competence. It has been shown that there is overwhelming justification in this case; it derives from an excellent, painstaking and very sensitive review by the Education, Lifelong Learning and Skills Committee into this difficult, and in many cases distressing, area of special needs. Anyone who has had constituency cases—and many here like myself have had such experiences over 30 years or more—will know what angst and anguish is caused in the desperate search to find what is best for a child, for parents and for the local authority. There is the question of state-maintained schools and mainstream schools versus special schools and the issue of rights and tribunals. The painstaking and excellent work of that Education, Lifelong Learning and Skills Committee review, as summarised in paragraph 7.10 of the Explanatory Memorandum, perfectly justifies the extension of legislative competence into this field. So the first criterion has been qualified and very clearly justified in the best possible way. The second criterion we agreed during the course of the Government of Wales Bill was that we should not be presented with wide, sweeping orders seeking competence in education—for example, the whole of secondary education or further education. The type of competence sought should be specific and clearly defined so as not to be a back-door method of acquiring legislative competence in the broad sense. This order meets that criterion. Besides the issue of disability, it is very specific and well defined in as much as it is confined to the issue of competence in relation to special needs. Therefore, it passes the second test. The accumulative capacity of the Assembly to legislate in education is pretty formidable. Given the statutory instruments, statutory legislation and framework powers from various Bills, plus this new legislative competence—and that which is in the pipeline on learning and skills—I would be interested to know from my noble friend what in legislative terms does not come under the competence of the Assembly in the field of education and learning. The third criterion—I remember it being a fundamental issue for many of us—is that we do not want to be presented with these orders without proper prior legislative scrutiny. That scrutiny should be carried out primarily by the Assembly and the Welsh Affairs Select Committee, although this House would have a role of one kind or another. The process by which this order has arrived here is proof that that criterion has been well and truly met. The noble Baroness, Lady Finlay, was rightly impressed by the work of both the Assembly committee and the Welsh Affairs Select Committee and the response by the Welsh Assembly Government, who made amendments in the light of that process. The Government in Westminster should perhaps take a leaf out of their book. We sometimes unnecessarily dig in heels here. So the criterion of legislative scrutiny before an order reaches us has been adequately and well fulfilled. Finally, I am a member of the Constitution Committee of this House. It decided that it would accept responsibility for a 12-month experimental period to look at these orders. We intend to use this period purely to decide whether an order is constitutional rather than to look at the content. Defining the term ““disability”” seems to be the only issue to cause a measure of dissent. I find the Welsh Assembly Government’s case, in paragraph 9.6 of the Explanatory Memorandum, for not accepting a WHO definition quite convincing. It states: "““It has concluded that it would not be appropriate for the Assembly’s legislative competence to be determined by reference to a definition that neither Parliament nor the Assembly has any control over””." As a passionate supporter of parliamentary sovereignty, I support that sentiment.