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A LEGAL PERSPECTIVE ON ISSUES RELATING
TO AN INCREASE IN
THE POWERS OF THE NATIONAL ASSEMBLY
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| 1. |
This paper complements the paper prepared
by Clive Lewis. The paper considers the issues that would
arise if a decision were taken, in principle, to confer
primary legislative powers on the National Assembly and
how the extent of those powers might be determined and
defined in a clear and readily understandable way. The
paper aims to suggest how primary legislative power might
emerge from the present settlement, recognising that broader
schemes of primary legislative devolution are possible
if there is a political climate favouring such a change. |
The National Assembly's Current Legislative Powers
|
| 2. |
The National Assembly's legislative powers
are derived from three sources: |
| 2.1 |
The Transfer of Functions Order, which transferred
to the Assembly the powers of the Secretary of State for
Wales, accumulated since 1964 through the process of administrative
devolution. |
| 2.2 |
Powers conferred by Acts of Parliament since
1998, where provision has been made for additional powers
to legislate by Assembly subordinate legislation have
been conferred on the National Assembly. |
| 2.3 |
A small number of Wales only Acts of Parliament,
namely the Children's Commissioner (Wales) Act and the
forthcoming NHS (Wales) Act. |
| 3. |
The Transfer of Functions Order was made
under the duty placed on the Secretary of State for Wales
to submit to Parliament an Order transferring functions
to the Assembly in a number of specified fields2.
The fields therefore reflected the accretion of powers
to the Secretary of State up to 1998, rather than any
systematic analysis from first principles of the powers
a devolved Assembly for Wales should possess. |
| 4. |
If there is a unifying principle behind
the list of fields, it is that they are about the delivery
of public services to the people of Wales - education,
health, roads, protecting the environment, state aid for
economic development, local government and housing and
the public funding of culture. This unifying feature is
discussed later in the paper. |
Comparison with Scotland and Northern Ireland
|
| 5. |
In Wales private law and the criminal law
have been unified with that of England since the
Laws in Wales Act 1535 and the administration of justice
since 1830. Separate legislation for Wales after the Act
of Union was notable only for its rarity. |
| 6. |
Scotland retained its distinctive legal
system after the Act of Union 1707. The Parliament of
the
United Kingdom legislated also separately for Scotland
over a wide range of issues relating to the private and
criminal law, the public services and matters such a company
law, albeit in similar form to England for much of the
time. Following the Scotland Act 1998, powers were devolved
to the Scottish Parliament on a reserved powers basis,
that is to say legislative powers and the accompanying
executive powers are devolved unless referred to in a
list of reserved matters.3
The apparent simplicity of this approach has nevertheless
resulted in a list containing six fields of general reservations,4
and no fewer than eleven areas of specific reservations,
5 frequently defined by reference to specific
Acts of the UK Parliament. This is supplemented by various
interpretative provisions to police the boundaries of
reserved and non reserved matters.6. |
| 7. |
Northern Ireland has inherited a diverse
statute book 7 and a civil and criminal law based on the common
law tradition. Northern Ireland also has the longest experience
of devolved primary law making to date under the Government
of Ireland Act 1920 until direct rule was imposed in 1972.
The Northern Ireland Act 1978 contains a list of twenty
two "excepted matters" (some of which are necessitated
by the political situation in Northern Ireland) outside
the legislative competence of the Assembly.
8 There is then a longer list of
"reserved matters"9
where the Assembly can only legislate with the consent
of the Secretary of State 10. There is provision for "reserved
matters" to be transferred to or from the Assembly
by Order in Council. |
| 8. |
The scheme of transferred powers in Northern
Ireland is thus much more succinct than that of the Scotland
Act and perhaps still bears the influence of the broadly
expressed powers transferred to the Parliament of Northern
Ireland by the Government of Ireland Act 1920.11. |
| 9. |
Both Scotland and Northern Ireland, therefore,
have a substantial body of their own statute law and,
to differing degrees, they have both, historically, been
distinct legal jurisdictions. |
Experience to date in Wales
|
| 10. |
The original list of fields in schedule
2 of the Government of Wales Act despite its haphazard
development is not without logic. It is fair to say that
once a practitioner has a basic understanding of the present
government of Wales, it is possible to develop an instinct
for what is a devolved field or not and, therefore, whether
this is an area of law where Wales and England could diverge. |
| 11. |
Foreign affairs and the defence of the realm,
taxation and social security, management of the economy
and the regulation of trade are all matters where the
subject matter suggests that in a devolved state these
are functions for the government of the United Kingdom.
Education and health, on the other hand, are areas one
would tend to think had been devolved. |
| 12. |
Where issues of have arisen, they have not
tended to be the result of uncertainty as to whether powers
have been devolved or retained. Rather they have been
cases where the resulting answer was not what politicians
and observers expected it to be (or perhaps felt it ought
to be) post devolution. |
| 13. |
The process of bidding for Wales only bills
or Wales provisions in England and Wales bills has been
far more transparent than the equivalent process in Whitehall.
At the same time it tends to emphasise the secondary position
of the Assembly. It is instructive to consider what happened
to the Assembly's proposals for Westminster primary legislation
in the current session. |
| 14. |
Eight bills were put forward by the Assembly
after a debate in plenary session and it is instructive
to consider their fate. |
| 11.1 |
Common Land (Wales) Bill |
|
Proposals, to improve the management of
common land by establishing statutory management associations.
This followed a joint England and Wales consultation paper
Greater Protection and Better Management of Common
Land. Proposal not adopted, possibly because
of the subsequent publication of a joint policy statement,
between the Rural Affairs Minister and the Assembly Environment
Minister foreshadowing an England and Wales Bill when
legislative time becomes available. |
| 11.2 |
Sunday Licensing (Wales) Bill |
|
A Bill to remove the duty of local authorities
in Wales to hold polls on the Sunday opening of licensed
premises, if requested to do so. Provision incorporated
in the Licensing Bill now before Parliament. |
| 11.3 |
St David's Day Bill |
|
Proposal rejected. |
| 11.4 |
Land Use Planning Bill |
|
A Bill to introduce changes to land use
planning following the consultation paper
Planning: Delivering for Wales 12.
Proposals included in the current
Planning and Land Compensation Bill. |
| 11.5 |
Education Bill |
|
This Bill would give statutory force to
proposals in the Assembly's education policy statement
Wales: the Learning Country. No
education bills included in the Queen's Speech. |
| 11.6 |
Audit (Wales) Bill |
|
No proposals to introduce this Bill to amalgamate
the provision of the Audit Commission in Wales and the
functions of the Auditor General for Wales. This would
bring Wales into line with Scotland and Northern Ireland. |
| 11.7 |
Housing Ombudsman (Wales) Bill |
|
A Bill to extend the remit of the Local
Government Ombudsman for Wales to cover registered social
landlords. No proposals in the Queen's Speech. |
| 11.8 |
Passenger Transport Bill |
|
A Bill seeking powers to establish a Wales
passenger transport executive or similar organisational
structure and giving the Assembly powers in relation to
the Strategic Rail Authority. No proposals. |
| 15. |
The result, for the current legislative
session, therefore, was England and Wales Bills dealing
with two topics, plus the introduction of the NHS (Wales)
Bill originally published in draft in May 2002. In the
Assembly plenary debate on the proposed bills, the First
Secretary compared the bidding strength of the Assembly
as comparable with that of a Whitehall Department which
might hope to achieve one or two measures a year. Such
a comparison can be argued to be inappropriate, since
the functions of the Assembly span the fields of several
Whitehall departments. This represents a continuing failure
to recognise that the National Assembly, unlike the Welsh
Office before it, is not a single government department
adapting Whitehall policy, in relation to Wales. |
| 16. |
Concern has also been expressed at the extent
of the Parliamentary scrutiny given to the Wales provisions
in England and Wales bills, given that there has been
no perceptible increase in the legislative time allocated
for such bills to take account of the separate provision
made for Wales. 13 |
Case Study 1: Planning and Compensation Bill
|
| 17. |
The Planning and Compulsory Purchase Bill
was introduced in the Commons on 4 December 2002 and is
an illustration of the extent to which the approaches
to devolved functions in Wales and England can now diverge. |
| 18. |
The main purpose of the Bill is to reform
the system of statutory development plans to speed up
the process of plan making, to speed up the process for
determining major applications and to introduce greater
predictability. The initiative to carry out a reform of
the planning system came from Whitehall. However, the
English and Welsh provisions are the result of separate
consultation exercises making significantly different
proposals for each country. Thus parts I and II of the
Bill will create a system of regional spatial strategies
and local development documents for England that represents
the complete recasting of a system of statutory plans
that has prevailed for the past 30 years. Wales is dealt
with entirely separately in Part VI, which adopts a more
evolutionary approach aimed a building on the existing
unitary development plans, which are to be simplified
and made more concise and renamed local development plans.
There is to be a spatial strategy for Wales prepared by
the Assembly and which must be reflected in the local
development plans. |
| 19. |
The Welsh consultation document lacked the
emphasis placed in England on major projects. This is
a result the policy developed in Wales reflecting the
different priorities set by the Assembly Government, led
by the Assembly's Minister of the Environment and involving
the input of the Assembly's Environment Committee. |
| 20. |
It remains to be seen at the date of preparing
this paper whether the debate of these Welsh clauses will
add significantly to the scrutiny and deliberation given
to this policy to date, within the Assembly. |
| 21. |
More significantly, future changes and reforms
to the system of development plans in Wales will start
from the base to be set by Part VI. The knowledge of how
this distinctive system operates in practice in future
will therefore reside in Wales and not in Whitehall and
Westminster. Their ability to contribute constructively
to the further reform and development of the system now
being created must be called into question. |
Case Study 2: Tales of the Unexpected
|
| 22. |
As the Counsel General for Wales pointed
out in his evidence to the Commission, the process of
establishing the Assembly's precise powers has not been
a problem once the need to identify those powers has arisen.
Rather the question is whether the boundaries of the devolved
powers have any rationale in a broader political or constitutional
sense. Three examples illustrate the issues that can arise. |
| 23. |
The controversy surrounding the discovery
that the Assembly lacked the powers to adopt their own
policy in respect of teachers pay and, in particular,
the setting of performance related remuneration. In legal
terms we know where matters stand, although the result
was clearly a surprise to many politicians. Nevertheless
a system which retains such significant powers in the
hands of, in this case, the Secretary of State for Education
in England, cannot be one which claims to have fully devolved
education policy for Wales to the Assembly. |
| 24. |
The foot and mouth epidemic of 2001 demonstrated
the partial nature of the devolution of functions in relation
to animal health. The Assembly was in fact largely acting
as the agent of DEFRA during the epidemic. As a result
part of the joint response of the UK Government and the
Welsh Assembly Government was to announce work on the
further transfer of animal health powers to the Assembly.
14 |
| 25. |
Even if a practitioner thinks that he broadly
understands the boundaries of the fields in which the
original powers of the Secretary of State were transferred
and relies upon that as a basis for assuming which subsequent
Acts of Parliament confer powers on the Assembly, he may
still miss some of the lesser known sources of Assembly
powers, such as the Capital Allowances Act 2001 or the
Electronic Communications
Act 2000, or under earlier Acts such as the Housing Grants,
Construction and Regeneration Act 1996, in relation to
construction contract adjudications. |
| 26. |
Unless there is a move to radically devolve
to the National Assembly powers in the fields of private,
commercial or criminal law, which is beyond the scope
of this paper, the obvious field for further devolution
might be responsibility for the administrative aspects
of the police, oversight of the fire service and aspects
of the Courts Service in Wales (although the Courts Bill
currently before Parliament does not contemplate any separate
provision for Wales and does not refer to the National
Assembly). |
| 27. |
Such a move would be a major extension to
the scheme of devolution, as it would confer on the Assembly
powers in fields where the Secretary of State for Wales,
pre-devolution, never had any functions. |
| 28. |
The ability of the Assembly to concern itself
now with some of these areas is illustrated by the recent
establishment of a Wales Community Fire Safety Trust.
This will be a charitable body intended to further education
in fire prevention, under the auspices of the three Welsh
Fire Brigades and the Assembly Government and partly funded
by the Assembly as part of its Community Safety initiative. |
The Legal Perspective on Primary Legislative Powers
|
| 29. |
From a lawyer's perspective, if a scheme
of devolution of primary legislation is going to work
it must demonstrate clear advantages in terms of the accessibility
and coherence of the statute book. |
| 30. |
On the positive side, the body of pre devolution
legislation in the devolved fields would be fixed, together
with the post devolution England and Wales Acts. The groundwork
for a progressive consolidation of existing provision
into Acts of the Assembly would be laid. Any cases where
Westminster continued to legislate itself so as to place
additional powers on the Assembly would be noteworthy
by their relative rarity. In such cases it is possible
to devise means whereby such provisions become part of
the Welsh statute book and are noted therein for the benefit
of anyone wishing to ascertain the laws made by and conferring
powers on the Assembly. |
| 31. |
One disadvantage in conferring primary legislative
powers on the Assembly is that in the short term the sources
of law in Wales will further expand with the addition
of Acts of Assembly to the pre devolution statutes and
the post devolution England and Wales Acts of Parliament
(although nothing like as varied as the position in Northern
Ireland, already noted). |
| 32. |
The other disadvantage is the issue of the
publication of Welsh laws and whether this will be done
adequately by commercial publishers. The experience of
bodies which have made representations to the firms of
law publishers about the arrangements for publishing Welsh
law to date, are not encouraging with a variety of reasons
given. All ultimately relate to commercial decisions about
the resources required to print and annotate fully bilingual
texts and an assessment of the commercial demand for such
texts. It is difficult to see how primary legislative
powers will not bring with them the need for the Assembly
to organise the publication of its own legislative output
and probably the texts of existing statutes in the form
they apply in Wales - an official "Acts of the Assembly
and Acts of Parliament relating to Wales in Force".
This is accepted elsewhere, for example Canada, where
the Federal Government makes consolidated legislation
available on the internet
and CD ROM. 15 |
| Options for Transferring Primary Legislative
Powers |
| 33. |
The question then arises as to whether it
would be possible to state an overarching principle to
guide the distribution of powers between Westminster and
Cardiff. Perhaps the formulation of "peace, order
and good government", found in section 4 of the Government
of Ireland Act 1920, could provide a lead. In the context
of Wales and recognising the current extent of devolved
functions, I suggest that this could perhaps be achieved
through posing the question: |
|
Does this function involve the provision
of a public service to the people of Wales? |
| 34. |
By establishing such a principle then it
becomes easier to specify the exceptions to it; in effect
the list of the public services reserved to Westminster,
of which social security provision is the most obvious
example of a currently non devolved function that could
fall within the public service definition. Another would
be the regulation of railways. Doubtless there would be
others. Nevertheless the competence of the Assembly to
pass primary legislation and therefore the overall powers
of the Assembly would be expressed in a single statement
of the distribution of powers which was then made subject
to exceptions. In this sense the Welsh model would begin
to resemble those for Scotland and Northern Ireland. Further,
such a statement should be capable of interpretation in
the case of dispute with the UK Government by similar
procedures to those flowing from the Memorandum of Understanding16,
the associated concordats and guidance notes and, ultimately,
through the procedure for determining devolution issues
under the Government of Wales Act 1998. 17 |
| 35. |
Having established a principle to guide
the distribution of powers, the process of devolving legislative
powers will naturally require primary legislation. The
issue then becomes one of resources and experience. |
| 36. |
On the basis of the scheme sketched in this
paper it could be speculated that the Assembly might pass
between four and six Acts a year of its own making new
provision. In addition, in its early years and ideally,
there would be one or two consolidation Acts involving
existing Westminster legislation devolved to the Assembly. |
| 37. |
A body of Parliamentary Counsel, perhaps
supplemented by private practitioners with the required
drafting skills to cope with this level of activity would
be required. One option would be to legislate at Westminster
early in the term of an Assembly to give primary powers
across the whole of the agreed field of devolved functions
from the inauguration of the next Assembly. The Office
of the Counsel General could then begin to assemble a
body of drafters to plan the Assembly statute book and
the drafting style and approach to be adopted. Alternatively,
primary legislation could allow the primary legislative
powers to be devolved field by field over a period of
time allowing a gradual build up of the Assembly's drafting
resources and experience. There are merits in both approaches
but the aim would have to be to ensure that if the Assembly
were to make its own laws in the fullest sense they should
be well drafted and clear. |
| 38. |
It should be feasible to specify an overarching
principle, covering the fields specified in the Government
of Wales Act, to describe the distribution of powers between
the Assembly and Parliament. The lengthy listing of specifically
devolved powers and functions would thereby be avoided
and a model adopted which was closer to the "reserved
powers" approach in the Scotland Act and, particularly,
the Northern Ireland Act 1998. |
| 39. |
Primary legislative powers, if they are
to be conferred successfully on the National Assembly,
should allow for an adequate lead in time, or otherwise
be done on a staged basis. This will ensure that the drafting
requirements are adequately resourced and the particular
needs of the Assembly, in particular of bilingual drafting
and the publication of laws in a small jurisdiction are
addressed. |
1
Solicitor, admitted 1978. Partner, Edwards
Geldard, practising in the field of public law, particularly
planning, compulsory purchase,
local government and environmental law. Treasurer, Wales
Public Law and Human Rights Association.
2
Government of Wales Act 1998, section 22(2) and Schedule
2. The specified fields are: 1. Agriculture, forestry,
fisheries and food.
2. Ancient
monuments and historic buildings. 3. Culture (including
museums, galleries and libraries). 4. Economic development.
5. Education and training.
6. The environment. 7. Health and health services. 8.
Highways. 9. Housing. 10. Industry.
11. Local government. 12.
Social services. 13 Sport and recreation. 14 Tourism.
15. Town and country planning. 16. Transport.
17. Water and flood defence.
18. The Welsh language.
3.
Scotland Act 1998, section 30 and Schedule 5
4.
The constitution, political parties, foreign affairs,
the civil service, defence and treason.
5.
Financial and economic matters, home affairs, trade and
industry, energy, transport, social security, regulation
of the professions,
employment, health
and medicines, media and culture and miscellaneous (judicial
remuneration, equality, control of weapons, the
Ordnance survey,
time and outer space).
6.
See sections 29, 53 and Schedule 4 Enactments etc Protected
from Modification, section 101 Interpretation of Acts
of the Scottish
Parliament etc and
the definitions of "Scots criminal law" and
"Scots private law" in section 126(4)(5).
7.
Section 6 Legislative Competence (2)(b) and (3)(b) and
section 98 Interpretation which define the Northern Ireland
statute book as
comprising Acts of
the Parliament of Ireland (ie pre 1801), Acts of the Parliament
of the United Kingdom (1801 to date), Acts of
the Parliament of
Northern Ireland (1920 to 1972), Orders in Council
under the Northern Ireland (Temporary Provisions)
Act 1972, Measures
of the Northern Ireland Assembly under the section
1 of the Northern Ireland Assembly Act 1973, Orders in
Council under Schedule
1 of the Northern Ireland Act 1974, Acts of the Northern
Ireland Assembly and Orders in Council under
the Northern
Ireland Act 1998.
8.
See Section 4(1) and Schedule 2. The matters are:
the crown, the UK Parliament, foreign affairs, defence,
weapons control,
honours, treason,
nationality, UK wide taxes and social security, judicial
tenure, elections, political parties, currency, national
savings, the Protection
of Trading Interests Act 1980, national security, nuclear
energy, sea fishing, outer space, the Northern
Ireland Constitution
Act 1973 and specified provisions of the Northern Ireland
Act 1998.
9.
These cover forty specified headings, some of which again
appear dictated by conditions in Northern Ireland eg criminal
law, the
courts , police,
public order and firearms, disqualification from membership
of the Assembly. Other categories broadly relate to
specific trade
and industry and social security matters.
10.
An interesting throwback to Poynings Law of 1497, imposed
on the Irish Parliament by Henry VII, which invalidated
its Acts
unless
approved in London.
11.
See section 4, which conferred powers to legislate "for
the peace, order and good government" of Northern
Ireland, subject to
14 reservations
in respect of the crown, war and peace, the armed forces,
treaties, honours, treason and nationality, and
specified
matters related to trade and navigation.
12.
Welsh Assembly Government, January 2002.
13.
See Jane Williams, The Legislative Process, in Monitoring
the National Assembly June to August
1992 (ed. Osmond), p.38
14.
See Press Release by Assembly Minister for Rural Development,
6 November 2002
15.
See Prof. Timothy Jones, Seminar report in Lord Morris
of Borth y Gest Seminars 2001, The Law Making Powers of
the
National Assembly for Wales
16.
Memorandum of Understanding, Cmnd 4444, October 1999
17.
Section 109 and Schedule 8 |
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