My Lords, my Amendment 109 provides for the transfer of all functions currently exercisable by Ministers of the Crown—UK Government Ministers—in relation to areas which are within the devolved legislative competence of the Welsh Government to be transferred to Welsh Government Ministers. Let me start by saying that, given the Government’s intention of producing a Bill that will provide clarity and coherence to the Welsh devolution settlement, it is difficult to understand why such a simple provision as the alignment of executive and legislative competence has not been included.
In providing evidence to the Silk commission, the Welsh Government made clear that a move to a reserved powers model should be accompanied by a blanket transfer of all executive functions within the devolved areas. The Silk commission agreed and recommended:
“In order to reduce complexity and increase clarity, we believe that a future Government of Wales Act should include a general transfer to the Welsh Ministers of Minister of Crown functions in devolved … areas”.
I thank the Minister for writing to me and setting out his understanding of the situation and for clarifying the three categories of executive functions. I will start with the area about which I am most concerned: the pre-commencement functions.
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It is worth pointing out that the development of devolution in Wales has resulted in a deviation from what is standard practice in other devolved legislatures in the UK. In 1999, a series of transfer of function orders transferred executive functions to the National Assembly for Wales which had no primary legislation-making powers. Now that the Assembly does have primary legislative powers and the intention of this Bill is to expand to a certain point Assembly responsibilities, surely it is appropriate to ensure that the Welsh Assembly secures complete responsibility for both executive and legislative matters that come under its remit in all areas that are not reserved. Anything other than this will cause confusion and create lack of clarity in terms of where responsibility lies.
The Minister has kindly stated that the UK Government will devolve as many of these functions as possible. In September he wrote to interested Peers with a draft of transfer of functions orders listing which pre-commencement Minister of the Crown functions were to be transferred to Welsh Ministers. As I remember—I am sure that the Minister will correct me if I am wrong—the number of orders to be
transferred was around seven. I am aware, however, that the Welsh Government have identified at least 35 other orders that they believe should be transferred. Can the Minister clarify the situation in relation to these and explain again why it would not be easier to have a principled, blanket handover of this responsibility to Wales?
We are told that some pre-commencement functions will be exercised jointly or concurrently by Ministers of the Crown and Welsh Ministers. I would ask the Minister whether the issue he cites in his letter in relation to the ability to pay grants and work together across the devolutionary boundary is something that has been done in the Scotland Bill. The UK Government have never explained to our satisfaction why the principle of the wholesale transfer applied in Scotland should not apply to Wales. This is something which has also perplexed the Constitution Committee of the House of Lords, which said:
“If the Government’s intention is to align, as far as possible, the executive and legislative competence of the Welsh Assembly and Government, we question why it is doing so via secondary legislation rather than in primary legislation—as was the case in Scotland”.
I would further ask whether the Minister will make a commitment in principle that any further powers that are “discovered” in future which should have been transferred because they fall within devolved competence will indeed be transferred—and whether he can report, as he promised to do, on whether he sees the scope to limit the number of functions listed in paragraph 11 of Schedule 2 to the Bill.
I have a degree more sympathy with the UK Government in the two other categories listed by the Minister in his letter: namely, where legislative and executive boundaries are not coterminous and in areas where competence does not match geographic extent. But I ask him to outline how Scotland deals with a similar situation. The general principle should be that executive powers in devolved areas should be exercised by Welsh Ministers. Again, I ask why the Government have such difficulty with this simple proposition.