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Annexe 1

 

200- No ---

 

CONSTITUTIONAL LAW

 

DEVOLUTION, WALES

 

 

The National Assembly for Wales (Legislative Competence) (Public Administration) Order 2007

 

Made ......................1st December 2007

Coming into force...... 1st February 2008

At the Court at Buckingham Palace, the 1st day of December 2007

Present,

The Queen's Most Excellent Majesty in Council

Whereas a draft of this Order has been laid before, and approved by a resolution of, each House of Parliament and of the National Assembly for Wales:

Now, therefore, Her Majesty, in pursuance of section 94 of the Government of Wales Act 2006, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows-

Citation and commencement

1. This Order may be cited as the National Assembly for Wales (Legislative Competence) (Public Administration) Order 2007 and comes into force on 1st February 2008.

Enhancement of legislative competence

2. Part 1 of Schedule 5 to the Government of Wales Act 2006 is amended by inserting under "Field 14: public administration" -

 

"Matter 14.1

 

The creation of, and conferral of functions on, an office or body for and in connection with investigating complaints about relevant public sector persons, social landlords and members and co-opted members of local authorities, remedies where such complaints are upheld and the abolition of offices or bodies with similar functions; and for this purpose a person is a relevant public sector person if the person has functions of a public nature exercisable in relation to Wales or a part of Wales all or some of which are in a field listed in this Part of this Schedule and either-

(a) at least one-half of the expenditure on the exercise of the person's functions of a public nature in relation to Wales or a part of Wales is charged on the Welsh Consolidated Fund or is met directly or indirectly from payments made out of that Fund or from payments made by one or more other relevant public sector persons, or

(b) the person has the power to issue a precept or levy."

 

 

Clerk of the Privy Council

 

 

EXPLANATORY NOTE

 

(This Note is not part of the Order)

 

Section 94 of the Government of Wales Act 2006 ("the Act") empowers Her Majesty, by Order in Council, to enable the National Assembly for Wales ("the Assembly") to make laws, by Assembly Measure, in accordance with the provisions of the Act and the Order.

 

The effect of this Order is to enable such laws to be made in relation to the matter set out in the words to be added to Part 1 of Schedule 5 to the Act. The Act provides for an Order under section 94 to add a matter which relates to one or more of the fields listed in that Part.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

MEMORANDUM FROM THE WELSH ASSEMBLY GOVERNMENT

 

CONSTITUTIONAL LAW: DEVOLUTION, WALES

 

Proposal for a Legislative Competence Order in the field of Public Administration

 

[NB this memorandum is drafted as if the Public Services Ombudsman Act 2005 did not exist and an Order in Council under what is currently clause 94 of the Government of Wales Bill was required to enable the Assembly to reorganise by Assembly Measure the provision of public sector Ombudsman's services in Wales.]

 

 

Introduction

 

1. The Government of Wales Act 2006 ("the 2006 Act") empowers Her Majesty, by Order in Council, to confer continuing competence on the National Assembly for Wales ("the Assembly") to legislate by Assembly Measure on specified matters. Assembly Measures may make any provision which could be made by Act of Parliament (and therefore can modify existing legislation and make new provision), in accordance with the competence conferred by the Order in Council but subject to the provisions of the 2006 Act.

 

2. The attached document is a proposed Order in Council. It sets out a matter which it is proposed to add to the legislative competence of the Assembly. In order to do so, an Order in Council will need to be made by Her Majesty following approval of a draft of the Order by the Assembly and by both Houses of Parliament.

 

3. This memorandum has been prepared by the Welsh Assembly Government. It explains the background to and context of the proposed Order in Council.

 

Scope

 

4. The matter set out in the proposed Order in Council would confer on the Assembly the competence to legislate to reorganise the arrangements for the provision of public sector Ombudsman's services in Wales. These services are currently provided via the offices of the Commission for Local Administration in Wales, the Welsh Administration Ombudsman, the Health Services Commissioner for Wales and the Social Housing Ombudsman for Wales.

 

5. Under the provisions of the 2006 Act, a matter can only be brought within the legislative competence of the Assembly if it relates to a field set out in Part 1 of Schedule 5 to the 2006 Act. The fields correspond broadly with the executive competence of the Welsh Assembly Government; the White Paper "Better Governance for Wales" explains that the policy intention behind this provision is that the Assembly should acquire legislative competence only in fields in which the Welsh Assembly Government has executive functions.

 

6. Executive responsibility for matters concerning the Welsh Administration Ombudsman, the Health Services Commissioner for Wales and the Commission for Local Administration in Wales lies with the Welsh Assembly Government. The related funding in all cases comes from the Welsh Consolidated Fund.

 

7. The legislation governing the offices of the existing Ombudsmen's services (the Welsh Administration Ombudsman, the Health Services Commissioner for Wales and the Commission for Local Administration in Wales) is contained respectively in the Government of Wales Act 1998; the Health Service Commissioners Act 1993; the Local Government Acts 1974 and 2000; and the Housing Act 1996. The existing legislative competence of the Assembly would not allow it to modify or repeal provisions in those Acts, nor to make new provision creating any new ombudsman's office for Wales. The Order in Council, if made in terms of the draft before the Committee, would enable the Assembly to take such legislative action.

8. The Ombudsman services in relation to which the Assembly would be able to legislate would be those whose investigation function can only apply to persons (which includes bodies as well as individual office holders) who have functions of a public nature within devolved fields and which are dischargeable in relation to Wales or part of Wales and provided they receive at least half their finance (directly or indirectly) from the Assembly Government or from another body which is itself subject to investigation, or they have the power to issue a precept or levy. The investigation of complaints against social landlords would be within the scope of the legislative competence, as would the investigation of complaints about the conduct of local authority members.

 

 

Background

 

9. This request for legislative competence derives from a manifesto commitment made at the Assembly general election in May 2007.

 

10. Currently, three out of the four statutory Ombudsman offices in Wales - the Health Service Commissioner for Wales, the Commissioner for Local Administration in Wales, and the Social Housing Commissioner for Wales - are held by the same person. The third office, however, cannot be held by the same person because provisions in the Government of Wales Act 1998 and Local Government Act 1974 make it clear that a Commissioner for Local Administration in Wales (the local government ombudsman) exists in addition to the Welsh Administration Ombudsman. The post of Welsh Administration Ombudsman is currently held on an acting basis by the Parliamentary Commissioner for Administration.

 

11. The Commissioner for Local Administration in Wales is also responsible for investigating of complaints in relation to standards of conduct of members and employees of local authorities in Wales under Part 3 of the Local Government Act 2003.

 

12. Although staff of the Health Service Commissioner for Wales and the Welsh Administration Ombudsman share offices and - to a certain extent - workload, the offices of the Commission for Local Administration (and Social Housing Ombudsman for Wales) are completely separate. Arrangements, both statutory and administrative, exist for the sharing of information between the different offices. However the statutory requirements applying to the work of each of the four offices are different. Most importantly, those in receipt of public services are faced with sometimes complex decisions about which Ombudsman should deal with a complaint about maladministration which the public bodies concerned have been unable to resolve to the complainant's satisfaction.

 

13. The First Minister's strategic statement of 22 May 2007 [hyperlink to Assembly record of proceedings], confirmed the Welsh Assembly Government's manifesto commitment, to seek to introduce legislation at the earliest opportunity to give the public a single point of reference for complaints of maladministration in the Welsh public service. This is part of a wider programme of reform to create citizen-centred, seamless public services.

 

 

Effect of other provisions in the 2006 Act

 

14. The effect of this Order needs to be considered in the context of the overall provisions of the 2006 Act.

 

Geographical limits of any Assembly Measure

 

15. If an Order in Council were made in substantially the form proposed, the Assembly would by Measure be able to reform the provision of public sector ombudsman's services in Wales, even though the Local Government Acts 1974 and the Health Service Commissioners Act 1993, which provide the authority for the existing arrangements also make provision concerning Ombudsman's services in England. Section 93 of the 2006 Act provides that no Assembly Measure will be law if it applies otherwise than in relation to Wales or confers, imposes, modifies or removes functions exercisable otherwise than in relation to Wales (or gives power to do so). There are limited exceptions for certain kinds of ancillary provision, for example provision appropriate to make the provisions of the Measure effective, provision enabling the provisions of the Measure to be enforced and to make consequential amendments to other legislation. Such provision is likely to be necessary, for example, to ensure that any new Ombudsman's service for Wales could share information as necessary with counterparts in other parts of the UK; to ensure that courts throughout England and Wales could enforce any remedies ordered by an Ombudsman (if such remedies are provided for in a Measure); and to amend references in other legislation to any existing offices which an Assembly Measure had abolished.

 

16. The limitation relating to functions other than in relation to Wales means that the Assembly would not be able by Measure to confer on an Ombudsman the power to investigate matters which did not relate to Wales.

 

Minister of the Crown functions

17. There are several public service functions in Wales which are not devolved, for example the administration of social security and the employment service and the operation of police authorities. Complaints of maladministration in relation to these public service bodies are within the remit of the Parliamentary Commissioner for Administration (PCA). The proposed Order in Council would not enable the Assembly to alter this. Although the office of PCA is independent of government, functions concerning that office lie with the UK Government, in particular the Cabinet Office and Treasury. By virtue of Part 2 of Schedule 5 of the 2006 Act, the Assembly may not by Measure alter the functions of Ministers of the Crown without the consent of the Secretary of State but in any event the requirement that persons who may be investigated must discharge functions within devolved fields and must (except in the case of precepting or levying bodies) receive at least one-half of their finance from the Welsh Ministers or from other persons themselves subject to investigation means that an Assembly Measure could not affect bodies within the remit of the PCA.

 

 

 

Conclusion

 

18. The Welsh Assembly Government invites the Welsh Affairs Committee to consider whether it would be appropriate for legislative competence on Ombudsman's services in Wales, in the terms of the proposed draft Order in Council attached, to be conferred on the Assembly.

 

 

June 2007