National Assembly for Wales (Transfer of Functions) (No. 2) Order 2006

rose to move, That the draft order laid before the House on 19 October be approved. 36th Report from the Statutory Instruments Committee, Session 2005-06. The noble Lord said: My Lords, three separate matters are covered by this order. The first enables the National Assembly Government for Wales to make regulations for the content and conduct of the census in Wales. The second concerns Section 156 of the Environmental Protection Act 1990, transferring the power to make regulations in relation to waste on land. The third amends the basis on which the National Assembly for Wales makes regulations prescribing conditions in relation to water fittings under the Water Industry Act 1991. The Wales Office has obtained formal agreement with the Treasury, Defra and, of course, the National Assembly for Wales itself for all the matters contained within the order. The first matter, concerning the 2011 census of population, would give the Assembly the right in law to be consulted on the draft census order and the power to make the regulations for the census in Wales. Information arising from each census of population is used by central and local government to form policy, to plan services for specific groups of people and to distribute resources effectively. Only a census can provide information on a uniform basis both about Wales as a whole and about individual small areas and sub-groups of the population in relation to one another. Your Lordships will recall that, following the late introduction of a Scottish tick-box in the 2001 census, there were calls for a Welsh tick-box on the census form in Wales. The Economic Secretary to the Treasury and the Registrar General for England and Wales subsequently agreed that the Assembly should have a more formal role in agreeing future census forms in Wales. Officials of the Welsh Assembly Government, the Office for National Statistics and the Wales Office, including legal advisers, have identified an option that gives the Assembly a greater role within the constraints of current legislation. The function, under Section 1 of the Census Act 1920, of making a census order is exercisable by Her Majesty in Council. Such functions do not fall within Section 22 of the Government of Wales Act 1998 and cannot be transferred to the Assembly. However, under Section 22(1)(c) of the 1998 Act, it is possible to direct that the function of a Minister of the Crown is to recommend that a census order be made by Her Majesty in Council. The function of making census regulations,under Section 3 of the Census Act 1920, falls within Section 22 of the 1998 Act. Therefore, in so far as that function is exercisable in relation to Wales, it can be transferred to the Assembly. It would give the Assembly greater influence in the decisions that the Office for National Statistics takes and give it the final say on the way that the census is conducted in Wales. Where there is a sufficiently strong case to do so, different information could be collected on census forms in Wales. The second matter transfers Section 156 as it applies to Part 2 of the Environmental ProtectionAct 1990 and will enable the Assembly to make regulations in relation to Wales giving effect to Community and other international obligations in relation to waste on land. The devolution settlement gives the Assembly extensive responsibilities for environmental matters, including waste management. The National Assembly has powers to give effect to Community law obligations with respect to waste management under Section 2(2) of the European Communities Act 1972. The penalties which can be imposed by regulations made under the European Communities Act are lower than those imposable by regulations made under Section 156 of the Environmental Protection Act 1990. Thus, the main advantage of Section 156 powers is that they are not subject to the same limitations as attach to the use of Section 2(2) of the European Communities Act 1972, particularly in relation to the maximum penalties that may be imposed. The Hazardous Waste (England and Wales) Regulations 2005 were made by the Secretary of State for Environment, Food and Rural Affairs partly in reliance on Section 156. Consequently, the regulations, which amend provisions relating to penalties in the Environmental Protection Act 1990, were able to include provision on penalties beyond the maximum, which would not have been permitted had the regulations been made under Section 2(2) of the European Communities Act 1972 alone. Because of the need to rely on Section 156 for certain provisions in the Hazardous Waste (England and Wales) Regulations 2005, those regulations had to be made by the Secretary of State for Environment, Food and Rural Affairs to cover England andWales for the Section 156-related issues and England only for the Section 2(2) issues. The Assemblymade regulations covering Wales only for theSection 2(2)-related issues. That is untidy and confusing for all interested parties. Even where the Assembly and the Secretary of State for Environment, Food and Rural Affairs make regulations together, those regulations have to reflect the different powers held by both parties. That situation can be avoided by the transfer of Section 156 provisions as they apply to Part 2 of the Environmental Protection Act 1990. Following the transfer, on occasions where policy/regulations made partly in Wales and partly in England are reviewed by both Defra and the Assembly Government, the Assembly will be able to implement any amendment fully in Wales without being reliant on Defra. The third matter amends the basis upon which the Assembly may make regulations under Sections 47, 53, 55 and 66A of the Water Industry Act 1991 prescribing requirements in relation to water fittings, contravention of which will release a water undertaker from its water supply duties in certain circumstances. The requirements that can be prescribed by these regulations are confined to those contained in regulations made separately under Section 74 of the Water Industry Act 1991. An anomaly exists in the way in which the functions under Section 74 and Sections 47(2)(g), 53(2)(c), 55(4) and 66A(6) have been transferred to the Assembly. The power to make regulations, under Section 74, has transferred in relation to water undertakers whose areas are wholly or mainly in Wales but not in relation to any licensed water suppliers. However, the powers, under Sections 47(2)(g), 53(2)(c), 55(4) and 66A(6), have transferred ““in relation to Wales””. Water undertakers are the principal suppliers of public water and are appointed under Section 6 of the Water IndustryAct 1991. Licensed water suppliers are a fairly new phenomenon. The Water Act 2003 introduced new provisions into the Water Industry Act 1991 permitting companies that are holders of a water supply licence to have access to water undertakers’ supply systems, enabling the licensee to supply water to eligible non-household premises. Prospective suppliers have to obtain a licence from Ofwat. The areas of supply of the Welsh undertakers do not align with the boundary of Wales and consequently some functions are transferred to the Assembly on a water undertakers’ area basis, such as Section 74. Because the functions under sections of the Act that I have already mentioned are exercisable by reference to regulations made under Section 74 of the Act, the basis of transfer of all those provisions needs to be aligned. The proposed transfer of functions is intended to correct the disparate manner in which these interrelated functions have been transferred to the Assembly so that the Assembly’s ability to regulate the water industry in Wales more accurately reflects the devolution settlement as it has effect in relationto the supply of water by water undertakers. I beg to move. Moved, That the order laid before the House on19 October be approved. 36th Report from the Statutory Instruments Committee, Session 2005-06.—(Lord Evans of Temple Guiting.)