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1. The Similarities between the
Two Models.
Schedule 5 to the Scotland Act 1998 sets
out subject headings. Schedule 2 to the Government of
Wales Act sets out fields. Both concepts are expressed
in similar terms, though, because of the fundamental
difference in the method of conferring functions in
the two Acts, there is not always an equivalent in Schedule
5 to a field in Schedule 2.
2. The Differences between the Two Models.
a) The Scotland Act
The purpose of listing subject headings in Schedule
5 to the Act followed by descriptions of the subjects
is to set out matters which are not within the legislative
competence of the Scottish Parliament or within the
Executive competence of the Scottish Executive. The
Scottish Executive has total powers to exercise the
functions of U K Ministers in pre 1999 Acts of Parliament
applying to Scotland except where there is a subject
heading in Schedule 5. Thus as there is no "Education"
subject heading in Schedule 5, there are no exceptions
to these powers. Consequently, the Scottish Executive
can exercise all UK Ministerial functions in pre 1999
Education Acts which apply to Scotland.
b) The Government of Wales Act
The purpose of Schedule 2 to the Government of Wales
Act is to set out the fields within which functions
are to be transferred to the Assembly under the first
Transfer of Functions Order to be made under section
22 of the Act.
Merely because "Education" is in the
list of fields in Schedule 2 does not of itself enable
the Assembly to exercise all UK Ministerial functions
in pre 1999 Education Acts applying to Wales. Provisions
in a particular Act have to be transferred under an
Order before the Ministerial functions contained in
such provisions can be exercised by the Assembly.
Furthermore, the heading "Education"
in Schedule 2 does not guarantee that the Order will
transfer all Ministerial functions under every pre 1999
Education Act to the Assembly. Not all Education Acts
are listed. The Order has to specify the particular
Act, before functions in that Act can be exercised by
the Assembly. The Order can transfer an Act with provisoes
restricting the exercise of the functions by the Assembly
under that Act to certain Parts, sections or Schedules.
The Order can also specify the manner in which the functions
are to be exercised, for example with the consent of
the Treasury or together with a UK Minister.
3. The nature of the reserved matters in Schedule
5 to the Scotland Act
a) General Approach
The Departmental Guidance Note No.14 (DGN 14) issued
by the Scottish Parliament explains that the general
approach adopted in setting out the reserved matters
under the subject headings in Schedule 5 is not to
list functions by reference to specific legislation
but by general descriptions of the subject matter.
An example of this is:
"Sea Fishing Regulation of sea fishing
outside the Scottish Zone".
Where it is necessary to set out an
exception to the subject description, the exception
is usually also by reference to a general subject
as well. Thus the exception to the above reservation
for sea fishing outside the Scottish zone is "except
in relation to Scottish fishing boats". Therefore
in the case of any UK Ministerial function falling
within this exception to the reserved matter, the
Scottish Executive can exercise that ministerial function.
DGN 14 explains that the purpose of
expressing the reservations and the exceptions to
the reservations as far as possible in broad terms
was deliberate. It was "to allow the courts to take
a broad approach to the interpretation of Schedule
5 and in particular to consider the intended coverage
of reservations instead of relying on an unduly literal
approach".
b) Specific approaches
Under certain subject headings, because it was necessary
to set out specific, not general exceptions, the reserved
matters are not described by reference to general
subjects. In these cases, reference is made to specific
Acts or specific enactments such as sections of Acts
or statutory instruments. Such descriptions, however,
are few in Schedule 5.
An example is:
"B5 Entertainment.
The subject matter of -
(a) the Video Recordings Act 1984, and
(b) sections 1 to 3 and 5 to 16 of the Cinemas Act
1985 (control of exhibitions)"
4. The National Assembly for Wales (Transfer
of Functions Order) 1999
SI 1999/672.
This is the order which sets out legislation
falling within the fields listed in Schedule 2 to the
Act. A page from the Order is at the Annexe
to this document. The page illustrates the complexity
of the Order, which for the first time seeks to set
out in a statutory form the functions which were exercised
by the Secretary of State for Wales immediately prior
to the making of the Order in March 1999. There were
no generally agreed principles governing the matters
of the responsibility of the Secretary of State for
Wales. The extent of the powers which the Secretary
of State for Wales would exercise under any particular
Act was for administrative agreement between the relevant
UK Secretary of State, the Welsh Office and the Cabinet
Office. The extent of his powers varied from Act to
Act and from Government Department to Government Department.
From about 1970 onwards, it appears that no Act gave
powers expressly to " the Secretary of State for Wales".
Apart from Agriculture (where there was a statutory
"Minister of Agriculture, Fisheries and Food") statutory
powers were usually vested in "the Secretary of State"
leaving it to administrative agreement as to which Secretary
of State this would be in relation to Wales. Thus social
services in Wales was a responsibility of the Secretary
of State for Social Services until in 1970 an agreement
was reached that this would become a function of the
Secretary of State for Wales. The agreement was recorded
in a letter, not in a formal legal document.
From the page at Annexe 1, it will be
seen that the descriptions of the functions are expressed
in very different terms from the majority of the descriptions
in Schedule 5 to the Scotland Act. Thus:-
- there are no subject headings in the Order;
- there is no description of the Assembly’s functions
by reference to general subject matters;
- all descriptions of the powers given to the Assembly
are by reference to Acts set out in chronological
order according to the year that each Act was enacted;
- of the 350 Acts which are listed, some one third
contain no provisoes. In those cases all the Ministerial
functions are therefore transferred to the Assembly;
- for the remaining two thirds of the Acts which are
listed on the Annexe 1 page there are provisoes to
the transfer of Ministerial functions. Examples are:
- the Food Act 1984 excepts a section, a subsection
and certain general references in the Act to Ministers;
- the Cycle Tracks Act 1984 transfers only one section;
- the Food and Environment Protection Act 1985 gives
certain powers which can be exercised both by the
Assembly and a UK Minister "concurrently";
- the Housing Associations Act 1985 requires Treasury
consent to the exercise of two of the functions
in the Act;
5. A comparison between the Fields in the
Government of Wales Act and the subjects in Schedule
5 to the Scotland Act.
a) Fields in Schedule 2 to the Government
of Wales Act having no equivalent subject headings
in Schedule 5 to the Scotland Act.
There are 18 fields set out in Schedule
2 to the Government of Wales Act. Some of these fields
have no equivalent subject headings in Schedule 5
to the Scotland Act. This is because Schedule 5 only
lists the exceptions to the competencies of the Scottish
Executive. The fields in Schedule 2 to the Government
of Wales Act for which there are no equivalent subject
headings in Schedule 5 to the Scotland Act are:
Agriculture
Forestry
Food
Ancient Monuments and Historic
Buildings
Education and Training
Highways
Housing
Local Government
Social Services
Sport and Recreation
Tourism
Town and Country Planning
Water and Flood Defence
Where there are no subject headings
in Schedule 5 to the Scotland Act corresponding with
the equivalent fields in Schedule 2 to the Government
of Wales Act, the result is that the Scottish Executive
can exercise all Ministerial powers, without proviso,
in pre 1999 Acts of Parliament.
b) Fields in the Government of Wales Act
having equivalent subject headings in Schedule 5 to
the Scotland Act.
These fall into 2 categories:
(i) Schedule 5 subject headings followed by general
subject matter descriptions.
The fields in Schedule 2 to the Government
of Wales Act for which there are these types of subject
headings are:
Fisheries
Economic Development
Industry
Health
Transport
(ii) Schedule 5 subject headings followed by descriptions
relating to the subject matter of an Act, or a section
of an Act.
There are 3 such subject headings,
each subject heading contains both lists of general
subject matter descriptions and references to specific
Acts or sections of Acts.
The following are the subject headings
with their list of those enactments which also appear
in the 1999 Assembly Order:
1. Trade and Industry:
A subject matter reservation of section 1 of the Industrial
Development Act 1982.
2. Transport:
(i) Road Transport
The subject matter of:
the Public Passenger Vehicle Act
1981 and the Transport Act 1985, so far as relating
to public service vehicle operator licensing.
Section 17 (traffic regulation on
special roads) section 25 (pedestrian crossings)
Part V (traffic signs) and Part VI (speed limits)
of the Road Traffic Regulation Act 1984.
the Road Traffic Act 1988 and the
Road Traffic Offenders Act 1989.
(ii) Other Transport Provisions:
The subject matter of sections 125(7)
and (8) of the Transport Act 1985.
Grants to Railway services under
the Railways Act 1993, except for 3 sections.
3. Health and Medicines
The subject matter of the regulation of health professionals,
including the professionals referred to in the Nurses,
Midwives and Health Visitors Act 1997.
5. To what extent could the
structural complexities of the Assembly’s 1999
Order have been overcome by using the Scottish concepts?
(i) Could the 1999 Order have
contained subject matter descriptions?
Section 22(1) (a) of the Government
of Wales Act states "Her Majesty may by Order in Council
–
(a) provide for the transfer to the Assembly of any
function so far as exercisable by a Minister of the
Crown in relation to Wales". As read with Schedule
2 to the Act it would seem to have been possible to
contemplate transferring, at least certain subjects
and subject descriptions thereby allowing all Ministerial
functions under pre 1999 Acts of Parliament coming
within those subject matters to be exercisable by
the Assembly. For example there could have been this
heading in the 1999 Order:
"Ancient Monuments and Historic Buildings
– All Ministerial functions falling within this
subject".
(ii) Could the 1999 Order have
contained subject matter exceptions?
When a Transfer of Functions Order
in 1970 transferred as a general subject matter primary
and secondary education functions in Wales to the
Secretary of State for Wales, it excepted powers relating
to the pay, qualifications and training of teachers
from the transfer. Thus a subject matter function
was transferred with subject matter exceptions. In
Schedule 5 to the Scotland Act there are descriptions
of subject matters listed with subject matters excepted
from the descriptions.
(iii) Cases where Schedule 5 refers to Acts
and sections of Acts.
It is only in a limited number of cases,
because of the particular nature of the description,
that it was considered necessary in Schedule 5 to
the Scotland Act to depart from the general subject
matter principle. A particular example is that of
Road Transport where one of the reservations is expressed
by reference to Part V (traffic signs) and PartVI
(speed limits) of the Road Traffic Regulation Act
1984. Two specific sections of the Act are also referred
to. This was no doubt considered necessary to retain
a unified approach to measures relating to road traffic
in the United Kingdom.
However, it is suggested that these
exceptions are expressed in a clearer way than the
equivalent provisions in the Assembly’s 1999
Order in relation to the same Act particularly when
a summary is given in brackets of the nature of the
provisions. In the Order, the Ministerial functions
under the Act are all transferred, except for some
random eighteen sections, one Schedule, three subsections
and two exceptions to the exceptions, one of which
relates to the Assembly’s power to place the
Welsh language versions of words on road signs. There
are no summaries of the excepted provisions.
(iv) If Scotland, why not
Wales?
Given the decision in the Government
of Wales Act to confer powers expressly on the Assembly,
why did the Assembly’s Order not adopt the same
approach as Schedule 5 to the Scotland Act in the
giving of these powers?
The answer to this can only be that
a literal interpretation was given to the provisions
of the 1997 White Paper – ‘A Voice for Wales’.
The Assembly would initially only exercise the powers
exercisable by the Secretary of State for Wales. Thus
if, solely for administrative reasons, relating as
much to the availability of staff as anything else,
only the powers in section 5 of the Cycle Tracks Act
1984 were exercisable by the Secretary of State for
Wales in March 1999, then that is all the Assembly
received under the Act.
However, this approach of listing 350
specific Acts with many specific exceptions to them
ignored the subject matters where the Secretary of
State for Wales exercised statutory functions coming
within general subject matter descriptions –
primary and secondary education (with subject matter
exceptions) and social services being examples.
6. Can there be a different
approach to the nature of the powers exercisable by
the Assembly in the future?
Schedule 5 to the Scotland Act shows
that it is possible to express statutory functions by
means of subject matters. The subject matters can be
general, or specific. Where necessary, and this does
not occur very often in Schedule 5, the subject matters
can be expressed by particular reference to Parts or
sections of Acts. Even here, however, the nature of
the subject matter can be summarised by reference to
a general exploration of the Part or section.
Thus "Part V (road signs)" of the Road
Traffic Regulation Act or "sections 10 to 12 of the
Industry Act 1972 (credits and grants for construction
of ships and offshore installations)".
Future Acts of Parliament giving powers
to the Assembly could be in terms of similar general
executive subject competencies. These competencies could
be based on the long title of the Act where it is sufficiently
comprehensive or, if the title is too wide, the subject
headings of the Chapters or Parts of the Act. For example,
in the case of an Education Act whose general purpose
was to make provision for the education of children
between the age of 3 and 11, the Assembly could have
a general subject matter competency to make such provision
as it considered necessary for the education of children
between the age of 3 and 11, including the making of
orders and regulations in relation thereto.
If the Assembly’s powers under the
Act needed to be constrained in any way, there could
be subject matter exceptions such as an exception for
"the subject of Part – (the control of teachers’pay
and qualifications)", or, if really necessary, an exception
for the subject matter of a section.
However, post-devolution Acts of Parliament
do not adopt a general subject matter approach. A number
even give powers to the Assembly in the same way as
those given in the 1999 TFO, namely section by section,
with some sections reserved to central Government. An
example of this are many of the sections in the various
Parts of the Education Act 2002, each section of which
has to be read to ascertain whether or not the particular
section gives powers to the Assembly.
However there is a possible way forward.
The provisions of section 214 (1) of the Education Act
2002 demonstrate the concept of implementing provisions
by reference to the purposes of an Act. Under this section,
regulations may make such incidental, consequential,
transitional or supplementary provision as appears to
either the Secretary of State or the National Assembly
for Wales "to be necessary or expedient for the general
purpose of, or for particular purposes of the Act, or
in consequence of any of its provisions or for giving
full effect to it."
Under section 214 (2), regulations under
section 214 (1), may amend, repeal or revoke, with or
without savings, any statutory provision (including
provisions in an Act of Parliament).
There seems to be no reason why, as the Assembly is
a democratic body, it should have powers conferred on
it only in the same manner as powers are conferred on
a UK Minister by means of detailed enumeration in an
Act. One of the main purposes of the Assembly was to
democratise executive decision-making by changing the
whole nature of Ministerial accountability, or the lack
of it, to Parliament. Such a change could surely be
accompanied by a fundamental change in the nature of
the powers given to this democratic body, namely by
the granting of subject matter responsibilties or by
setting out the purposes of the Act within which the
Assembly would have functions.
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