Letter from the Secretary of State for Wales to the Chairman of the Committee

The Welsh Assembly Government yesterday laid the draft National Assembly for Wales (Legislative Competence) (social welfare and other fields) Order 2008 - the "draft Vulnerable Children Order" - before the National Assembly for Wales. The National Assembly will debate the draft Order on 15 July and , subject to its approval, I will lay the draft Order for approval by resolution of the House.

I would like to thank the Welsh Affairs Committee for undertaking a thorough and comprehensive scrutiny of the proposed Order. I believe that the scrutiny process has been extremely effective in clarifying the intent and scope of the legislative competence the Order confers. I particularly appreciated the detailed and helpful report setting out the Committee's conclusions and recommendations, which both the UK Government and Welsh Assembly Government have considered carefully.

I am pleased that the Committee supports the proposed Order, as revised, and agrees that it should be proceeded with. The Committee is of course right to point to the need to better co-ordinate the referral of proposed Orders for scrutiny, to better enable complementary working by the Welsh Affairs Committee and the relevant committee of the National Assembly. I am confident that the improvements to the process we are putting in place will do this, and will write to you separately on these shortly.

Your Committee recommended that the scope of Matter 15.5, dealing with "co-operation and arrangements to safeguard and promote the well-being of children or young persons", be extended to include the UK Borders Agency (UKBA). You may be aware that the Government recently announced its intention for the UKBA to have a legal duty to safeguard and promote the welfare of children. The principle underpinning this change is that those responsible for running the immigration system should share the same responsibilities as agencies which are subject to Section 11 of the Children Act 2004, for ensuring the safety and welfare of children.

This change will form part of the forthcoming Immigration Bill, which will be introduced in the 2008-09 session. The Government will therefore seek to amend the Children and Young Persons Bill to remove the existing Lords amendment (Clause 7) on the role of UKBA in relation to the safety and welfare of children.

The duty will affect the operation of UKBA across the UK, and the Government will work with colleagues to provide a legislation solution that is accepted UK-wide. I hope you will agree therefore that it would be inappropriate to pre-empt this legislation by including the UKBA within the scope of the draft Order.

Your Committee similarly recommended including the Fire and Rescue Services in the list of bodies in Matter 15.5. I can confirm that Fire and Rescue Services are already within the scope of this Matter by virtue of it's application to "public authorities whose principal functions relate to any one or more of the fields in this part". Part 1 of Schedule 5 to the Government of Wales Act 2006 includes, at Field 7, fire and rescue services.

The Committee also recommended a parliamentary resolution at the time of this Order's passage to make clear that no competence is being conferred "that is not explicitly given by this Order". In making this recommendation, the Committee highlighted the potential for differing interpretation of the scope of devolved and reserved matters, and noted the particular controversy over smacking. I agree the need to make absolutely clear to Parliament during the Order's passage that it does not enable the National Assembly to legislate to remove the defence of "reasonable chastisement" relating to the punishment of children. Clearly there are a number of ways in which the Government could give such reassurance, and I will consider carefully the Committee's proposal in taking forward the Order. In response to the Committee's recommendation, the Welsh Assembly Government has strengthened the wording of the Explanatory Memorandum to make clear that a smacking ban is not within the scope of the draft Order.

Finally, the Committee recommended that the proposed Order be amended to make clear that it would do nothing to weaken the Children's Commissioner's existing powers in relation to "whistleblowing". Whilst concurring fully with the Commissioner's description of whistleblowing as an essential safeguard, the Welsh Assembly Government was unable to accept the Committee's recommendation. It is concerned to ensure the principle that the competence conferred enables the National Assembly to legislate on all aspects of the Commissioner's role and this includes "whistleblowing". Any specific reference to the Commissioner's existing powers on "whislteblowing" could restrict the National Assembly's ability to legislate in future on the Commissioner's role.

Rt Hon Paul Murphy MP

Secretary of State for Wales

9 July 2008