INTRODUCTION
|
| 1. |
This paper considers briefly
the nature of the allocation of powers under the current
devolution settlement, identifies possible tests for determining
if that allocation is appropriate and sets out possible
options for change. |
THE STRUCTURE
|
| The Functions |
| 2. |
In any modern democratic state,
different types of powers are exercised by different bodies.
Powers or functions can be conveniently divided into three,
legislative powers, administrative powers and judicial
functions (the latter is not discussed here). |
| 3. |
Legislation involves setting
the basic general legal rules regulating relations between
individuals and the state
(eg. laws on immigration, social security etc) and relations
between individuals (eg. rules on family law, commercial
law etc). |
| 4. |
Administrative powers involve
the application of rules, or the exercise of discretion,
to individual cases. |
| 5. |
In between the two extremes
are subordinate legislation. Primary legislation
may simply set out the bare bones of the legislative framework
leaving the details to be filled out by subordinate legislation.
An Act of Parliament may provide, for example, that regulations
may make provision for the payment of student loans or
social security benefits. Regulations then set out
in detail the circumstances when such loans or benefits
may be claimed. |
| 6. |
In addition, modern democratic
system tends to have checks and balances built in so that
the legislature can scrutinise the action or inaction
of the executive. |
| The Allocation
of Functions |
| 7. |
Primary legislation will be
made by the legislature, ie, the elected body (acting
in plenary session or committee). The legislature
will debate the policy and scrutinise and amend the legislation. |
| 8. |
Administrative functions will
usually be exercised by the executive. That will
be a separate body (usually, but not always) with separate
legal existence from the legislature. Primary or
subordinate legislation will confer powers to take decisions
(eg, approve a school closure, grant planning permission)
on the executive or a named member of the executive. |
| 9. |
Subordinate legislation is more
complex. Usually, the subordinate legislation is
drafted or made by the executive. There will often
by accountability of some form whereby the legislature
may need to approve the subordinate legislation, or have
the right to annul it. |
| 10. |
The "usual" structure
of legislative and administrative power, therefore, presupposes
a separate legislature and a separate executive.
That is how Westminster works. There is a UK Parliament.
Legislation is enacted by the Queen in Parliament.
Legislation frequently confers administrative powers on
the Secretaries of State to take decisions. That
is how Scotland works. There is a Scottish Parliament
(making legislation to the areas transferred to it) and
a separate Scottish Executive. |
THE STRUCTURE IN WALES
|
| 11. |
The devolution settlement in
Wales is different in two important ways. First,
there has been no transfer of the power to make primary
legislation. What has been transferred has been
the power to make subordinate legislation and to take
administrative decisions. |
| 12. |
Secondly, there is no separation
of the Assembly from the executive. There is one
corporate body - the National Assembly. All powers
- to make subordinate legislation and take administrative
decisions - are vested in the Assembly. |
| 13. |
Thereafter, there is power for
the Assembly to delegate the exercise of functions.
This may be done either to committees of the Assembly
or to the First Secretary (now known as the First Minister)
who, in turn may delegate to Assembly Secretaries (now
known as Ministers). |
| 14. |
In law, therefore, all powers
are powers conferred on and exercised in the name of the
Assembly. Powers are exercisable by others when
the Assembly chooses to delegate and when exercised are,
in law, exercised on behalf of the Assembly. The
Assembly still retains the ability to exercise functions
even if they have been delegated. The Assembly retains
the ability to revoke the delegation. Various other
consequences follow from the decision to have one corporate
body combining all functions rather than a separate Assembly
and a separate executive, each with its own sphere of
operation. |
| 15. |
The method by which the Assembly
obtains its powers is as follows. In broad terms,
at the outset of the Assembly's life, a Transfer of Function
Order listed a large number of Acts of Parliament and
provided that specified powers exercisable by the Secretary
of State (which were powers to make subordinate legislation
or take decisions) were to be exercised by the Assembly.
In subsequent Acts of Parliament, powers to make subordinate
legislation or exercise discretionary power are conferred
on the relevant Secretary of State, so far as England
is concerned, and on the Assembly so far as Wales is concerned. |
THE PRACTICE
|
| 16. |
In practice, the Assembly has
evolved into two parts. There is the Assembly and
there is the Welsh Assembly Government. In law,
the Welsh Assembly Government is a committee of the Assembly.
In law, the functions are still delegated to the First
Minister and then sub-delegated by him to Ministers. |
THE TESTS
|
| 17. |
It is for the Commission to
consider whether the current structure is desirable.
Various methods or tests might be used to consider the
question including the following: |
|
(1) |
is the current arrangement appropriate in
constitutional terms, ie, is the appropriate body exercising
the appropriate powers?; |
|
(2) |
does the structure reflect the aspirations
of the people of Wales as to what form the devolved institutions
should take?; |
|
(3) |
does the legal structure so prevent or hinder
the exercise of functions, currently, that change (which
would have to be a change to the primary legislation,
ie, the Government of Wales Act 1998) would be justified?;
|
|
(4) |
is the current structure capable of sustaining
further allocations of function, in particular would it
be capable of accommodating the transfer of powers to
make primary legislation? |
TENTATIVE ASSESSMENT
|
| 18. |
In practical terms, the system can be
made to work in a flexible method and has been adapted
to a way of working that, in large part, sees a separate
executive operating which is accountable to the Assembly.
The genius of the British constitution is said to be
its ability to adapt the legal forms of government to
modern day constitutional needs (hence, the Queen retains
theoretically wide powers, but does not exercise them).
The Welsh share in that genius. The wider question
is whether the system is the right system.
|
| 19. |
In
general terms, my personal view is that it would be preferable
for the system to recognise two separate bodies, an Assembly
and a government or executive. Each body would exercise
powers appropriate to its sphere. It is probably
preferable, but less important, for them to have separate
corporate status and more important that powers are allocated
to each body, as appropriate, in their own right. |
| 20. |
Administrative
functions would be exercised by the government.
That would, in turn, be accountable to the Assembly for
the policies it was pursuing in exercising those functions.
Subordinate legislation is more difficult and here there
is real scope for investigation as to the appropriate
role of the Assembly and the government. In some
cases, the power to make subordinate legislation in a
particular area is so wide, that the scope of the subordinate
legislation is not much different from primary legislation.
In other cases, there are considerable restraints included
in the primary legislation and the subordinate legislation
is more a case of fleshing out the details. The
precise extent to which subordinate legislation is to
be made by the government or made by (or subject to amendment
by) the Assembly is a matter for constitutional debate..
|
| 21. |
The
separation of the executive and the Assembly seems preferable
for the following reasons at least. First, in terms
of constitutional principle it is preferable that the
structure of government in Wales reflects the system of
allocating powers to the body which it is appropriate
to exercise them. Secondly, that separation of powers
enables attention to be focussed on how the checks and
balances and the relationship between Assembly and the
government should be developed. That important question
can be hidden in a situation where all power is theoretically
conferred on the one body. In other words, test
one above points to the creation or recognition of separate
bodies. Further, the evolution of devolution has
been towards separate spheres of operation. There
is a case for ensuring that the legal structures march
hand in hand with the way in which the system of government
in Wales has evolved in practice. |
| 22. |
Finally,
if primary legislative powers are conferred on the Assembly,
then the current system of combining all powers - the
powers to make primary and secondary legislative and administrative
powers - into one body and allowing that body to delegate
would not seem appropriate. At that stage, if not
earlier, some thought would need to be given to how the
exercise of primary legislative powers was to be discharged. |
CONSEQUENCES
|
| 23. |
The
change in the devolution settlement would, as a minimum,
involve the following; |
