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

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. 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 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.