|
This chapter has a particular concern:
how has the Assembly used its powers to legislate for
Wales? More specifically, to what extent has the Assembly
achieved a distinctive legislative profile through its
enactment of secondary legislation? The principal measure
of distinctiveness is the Assembly’s main legislative
product: statutory instruments.1
Whether that measure demonstrates that
the Assembly is making law in a quantitatively and qualitatively
distinctive manner depends on an understanding of a
number of conceptual, legal and empirical issues. It
also raises wider issues that are discussed in other
contributions to this book.2 These include the linked questions: what scope
is there for the transfer to the Assembly of a more
expansively defined legislative capacity, and what would
be required to support any such expansion? This chapter
does not rehearse these issues, which are well covered
elsewhere in this volume. However, the Assembly’s
law making activity should to be understood within the
context of two essential elements that warrant reinforcement:
- The de facto creation of parliamentary government
within the corporate structure of the National Assembly,
- Constraints in the relationship between the Assembly,
Whitehall and Westminster, in particular the promotion
of Wales-only Bills and the routine application to
Wales of the UK government’s legislative programme.
Attention should also be drawn to the
complexities of the devolution settlement for Wales.
The following section summarises, first, the key statutory
parameters governing the transfer of legislative functions
to the Assembly; and, secondly, the difficulties that
accompany the determination of the legal effect of a
transfer in any case.
THE TRANSFER OF LEGISLATIVE FUNCTIONS
The ways which the Government of Wales
Act 1998 transfers legislative powers to the Assembly
can be summarised as follows:3
- Powers in sections 27, 28 and 32 relating to the
Assembly’s ability to re-organise health and
certain other statutory bodies in Wales, and to do
anything which may assist matters relating to culture,
sport, historic buildings and the Welsh language.
- Power in section 22 to make subordinate legislation
in relation to Wales in respect of functions transferred
to the Assembly by central government under Transfer
of Functions Orders. The first Order transferred pre-devolution
ministerial powers contained in primary and secondary
legislation within 18 fields set out in Schedule 2
to the Act.
- Section 21 allows the transfer of functions by primary
legislation enacted post-devolution. These need not
be confined to the Schedule 2 subject fields. For
example, a designation order made under sections 111-112
of the Anti-Terrorism, Crime and Security Act 2001
identified the Assembly as "an authorised Minister"
for the purpose of implementing any obligation on
the United Kingdom under the Third Pillar of the EU.4
- A small number of post-devolution Acts confer limited
powers on the Assembly to amend primary legislation
by order (Henry VIII clauses).5
- Power under section 29 for European designation
orders to be made under section 2(2) of the European
Communities Act 1972 authorising the Assembly to make
regulations giving effect to Community obligations.6
Both before and since 1 July 1999, when
the Assembly formally began its work, attention has
focused on the Assembly’s powers within the 18
subject fields listed in Schedule 2. These comprise
the areas within which the Secretary of State for Wales
exercised ministerial functions prior to devolution.
They were included in Government of Wales Act for the
purpose of enabling the making of the first Transfer
of Functions Order (the 1999 TFO).7 They also mirror the areas in which the devolved
institutions in Scotland and Northern Ireland have executive
and legislative competence.
However, the devolution settlement in
Wales differs from these jurisdictions in two fundamental
respects. First, both the Scottish Parliament and the
Northern Ireland Assembly enjoy primary as well as secondary
legislative powers. Secondly, their powers are general
rather than specific in nature. They can exercise any
powers unless expressly prevented by the provisions
of their respective Acts.8 By contrast the Government of Wales Act authorises
the exercise only of secondary legislative powers, and
authorises them only by way of specific provision. As
the Counsel General, Winston Roddick QC, put it in his
evidence to the Richard Commission in December 2002:
"What the Assembly has, therefore,
is a collection of powers given to it piecemeal
in a number of Acts and transfer of functions orders."9
No entire area of responsibility within
the Schedule 2 fields has been transferred, for example
for agriculture, education, health or transport. This
is so notwithstanding that they constitute the focus
of attention for Assembly Subject Committees and for
Cabinet Ministers in the Welsh Assembly Government.
As the Cardiff solicitor Michael Jones, a member of
the Commission that prepared the Assembly’s Standing
Orders, observed in his 2002 Annual Law lecture at the
St Davids National Eisteddfod:
"There is a Minister for Education,
but she is not responsible for administering every
law that deals with education."10
This partial allocation of responsibility
is also an obstacle for those seeking to evaluate the
Assembly’s contribution to the Welsh economy and
public life. Two further points need to be emphasised.
First, the transfers under primary or secondary legislation
that have been made may impose constraints on the Assembly’s
power to exercise its functions unilaterally. Many of
its powers can only be exercised bilaterally, with the
consent of, concurrently or jointly with, central government
or other devolved bodies.
Secondly, by whatever device they are
transferred, so far as the subject matter to which the
functions relate are concerned, authority to make law
for Wales may reside either in the Assembly (with or
without any bilateral obligations) or solely in Whitehall.11 Within agriculture, for example, a Schedule
2 field in which the Welsh Office formerly exercised
wide ranging powers12, rules having statutory force for Welsh farmers
may be made either in Cardiff Bay or by the Department
of the Environment, Food and Rural Affairs.13 To use the analogy of a jigsaw puzzle, in Scotland
and Northern Ireland there is a picture of the full
agricultural puzzle, from which some pieces may be protected,
reserved or excepted. In Wales, by contrast, there is
no picture. Some pieces have been transferred; the rest
remain in Whitehall. The result, as Professor Keith
Patchett told the House of Lords Select Committee on
the Constitution, is:
"… a jigsaw of constantly
changing pieces, none of which has straight edges."14
As transfers to do with the same subject
matter accumulate, they can be categorised as belonging
to one of the Schedule 2 fields.15 Undoubtedly, this assists an informal understanding
of the Assembly’s powers. However, it is a purely
informational technique that cannot in law be equated
with the general competence that is exercised by the
Scottish or Northern Irish institutions in their subject
areas.
A ‘HAPHAZARD’ SET OF POWERS
When the Assembly took office on 1 July
1999 it assumed its first tranche of transferred functions,
effected by the first Transfer of Function Order. This
substantial instrument identified some 350 parent Acts
in date order; but not, as had been widely assumed would
be the case, by reference to the subject matter of the
Schedule 2 fields.16
With hindsight, the manner of transfer
adopted by the 1999 Transfer of Function Order accurately
reflected how central government was to approach the
implementation of devolution in Wales. Thus the discrete
transfer of functions evident there, for the most part
continues in the later Transfer of Functions made under
the Government of Wales Act and in the primary legislation
enacted since July 1999.17 The manner of transfer occasions two primary
issues. In terms of their comprehensiveness, the authorising
legislation may:
- transfer all or some of the functions in an Act
or section(s) of an Act or in subordinate legislation
made under those Acts; or
- transfer those functions with exceptions expressed
either numerically by reference to sections, subsections
or paragraphs of Schedules or verbally (or in a further
sub-category, transfer exceptions to exceptions, which
in turn may be effected in a number of ways).
As others have argued, there appears
to be no coherent logic to the substantive scope of
the functions or group of functions which were initially
transferred, or as to those functions in the same authorising
legislation which were retained by central government,
or which have been transferred or retained since.18 As the Presiding Officer Lord Elis-Thomas put
it, in his evidence to the Richard Commission:
"The powers to make secondary
legislation which the Assembly inherited from the
Secretary of State for Wales were an almost haphazard
accretion of a half-century with little or no coherence
of principle underlying them. Little or nothing
has been done to introduce coherence in legislation
enacted since the Transfer of Functions Order..."19
However illogical the allocation of functions
so transferred may appear to their audience, neither
are they necessarily final. As transfers accumulate
over time, an increasingly important matter is the effect
of amendments in the post devolution primary legislation
on the Acts listed in the 1999 Transfer of Functions
Order. Four main possibilities arise:
- Any amendment to the section (or subsection) transferred
in the Transfer of Functions Order is likewise an
amendment to the Assembly’s functions under that
section (or subsection).
- Where the Act listed in the Transfer of Functions
Order transferred functions to the Assembly subject
to exceptions, a new or an amended function is transferred
to the Assembly unless it falls within those exceptions
(this may be more complex where the transfer involved
exceptions to exceptions).
- Where the post 1999 Act amends the Act listed in
the Transfer of Functions Order by the addition of
a new section, the function in the section may be
transferred even though it is added after a section
or sections which were not transferred in the Transfer
of Functions Order if the Act so provides.
- However, where a subsection is added to a section
that was not transferred, the powers in the subsection
are likewise not transferred.
It will be plain that the exact identification
of the functions that are exercisable by the Assembly
is a time-consuming, complex and continuing task. Often
they have to be dug out of legislation which on its
face, as in the case of the Education Act 2002, generally
draws no distinctions by means of separate Parts or
a separate section identifying the application of the
Act to Wales.20
The second issue that is raised by the
government’s approach is the technical manner of
the transfer of functions within primary legislation.21 This can be more or less helpfully managed.
Of the transfers made in the Transport Act 2000, the
Lords’ Delegated Powers and Deregulation Committee:
"… noted that in this bill
(and others) the powers which were delegated to
the Welsh Assembly were scattered throughout the
bill, and it was therefore difficult to keep track
of them."22
On the other hand, the clear sign-posting
of the transfer of functions by means of separate Parts
in the Learning and Skills Act 2000 and in the Fur Farming
(Prohibition) Act 2000 are exemplars of primary legislation
in which provisions identify the application of the
Act to Wales. Whether there are lessons of general application
here, or whether the arrangement of its Parts is to
be driven entirely by the exigencies of the particular
Bill, is presently a matter for the lead department
and the draftsman.23
Ultimately, the manner in which the transfers
are set out is a consideration for central government,
mediated by the terms of the ‘soft law’ agreements
between Whitehall and Cardiff.24 On the question of the working relationship
between Cardiff and Whitehall, the House of Lords Select
Committee on the Constitution was particularly concerned
that liaison over legislation was "… unstructured,
almost random [and] highly opaque." It recommended that:
"… further thought be given
to how members of the National Assembly can be afforded
the opportunity to consider Westminster legislation
that will affect the Assembly and its functions."25
THE ASSEMBLY’S LEGISLATIVE OUTPUT
Three kinds of legislation bear upon
the subject fields that comprise the Assembly’s
work: primary and secondary legislation made by central
government, and secondary legislation made by the Assembly.
The third of these will be dealt with here.
In seeking to answer the question posed
at the beginning of this chapter, it is necessary to
ask, first, why it might be thought important that the
Assembly develops a distinctive legislative profile?
For many, not least those who have been elected to,
or work for the Assembly, it is important as a signifier
of its political independence and its productivity.
For others, put bluntly, it is to counter the criticism
that it is a glorified local authority. Suppose that
the Assembly’s legislative products are no different
in number and content from the days when instruments
were drafted in Whitehall, posted to Cathays Park, and,
following a process of ‘Walesification’, signed
by Welsh Office Ministers?26 What difference, the critic might ask, have
the additional 1,500 civil servants and the corresponding
increase in public expenditure made to remedy the deficits
identified in the White Paper?27 Far from merely being of parochial and technical
interest, therefore, the Assembly’s production
of statutory instruments is a matter of some political
importance. In the same way as Acts of the Scottish
Parliament comprise a measure of its effectiveness and
a possible counter to its critics,28 so the Assembly’s only permissible legislative
act constitutes one of its principal measures of success.29
Secondly, if that part of the Assembly’s
subordinate legislative output is to be used for this
purpose, it is necessary to elucidate what its distinctiveness
might comprise. A starting point is to distinguish quantitative
from qualitative distinctiveness. We can count how many
instruments the Assembly has made and compare that with
the number made each year by the Welsh Office solely
for Wales (rather than as an adjunct with England) pre-devolution.
A two-fold increase, say, might suggest that the Assembly
has been successful in making law to the benefit of
Welsh interests. Such an exercise is certainly a proxy
for how busy the Assembly has been, but it suffers from
the obvious difficulty that it is impossible to know
how many Wales–only general instruments the Welsh
Office would have made if the Assembly had not been
established. It, too, might have increased its output
in response to demand and the growing expertise of its
officials.
Imponderables of this kind also affect
the utility of qualitative distinctiveness, that is,
comparing the content of Assembly Orders with those
made under equivalent provisions for England. Nevertheless,
this is precisely the comparison that the Counsel General
to the Assembly has made, most recently in his evidence
to the Richard Commission. Responding to comments about
the Assembly’s effectiveness, he observed that
while only a very few of the first 200 statutory instruments
differed in substance from their English equivalents,
the content of those enacted in 2001 was notably different.
Of 230 general instruments, 31 per cent were:
"… either unique to Wales
or involved significant differences in its content
to its equivalents for England."30
We examine this claim in more detail
shortly.
One final introductory point should be
made. The Assembly’s legislation may in at least
two separate respects be questionably distinctive. First,
views may differ on what amounts to distinctiveness
in particular cases. There will be different understandings
of the proportion of distinctive instruments within
the total of the Assembly’s output. Beside this
definitional issue there is, secondly, a matter of judgment.
Distinctiveness is not necessarily a matter of approbation.
A legislator may be distinctive for the wrong reasons.
Instruments may be inappropriately timed or poorly drafted.
There may be excessive regulation. Here too, views may
differ.
QUANTITATIVE DISTINCTIVENESS IN SECONDARY
LEGISLATION31
During the years immediately preceding
devolution, the Secretary of State for Wales made around
500 statutory instruments each year. Of these, at least
150 or so would be local instruments relating to road
traffic and local health matters. Of the remainder,
which would be general instruments, the majority were
made by the Secretary of State in relation to Wales
in the same instrument as that made by a Minister in
England. These instruments were usually drafted in Whitehall.
A smaller proportion were made by the Secretary of State
for Wales alone. In 1998 the Secretary of State made
66 Wales-only general instruments. There were also 24
local instruments, making a total of 90 for the year.
By contrast, the bulk of the Assembly's
general instruments are Wales-only.32 In 2001 (at the time of writing, the latest
complete year), the National Assembly made a total of
331 instruments, of which 241 were general and 90 local.
This was an increase of 367 per cent over the number
of general instruments made in 1998, virtually all of
which were published in the two languages.33 Between its establishment on 1 July 1999 and
3 December 2002, the National Assembly for Wales made
562 General Statutory Instruments and 330 Local Statutory
Instruments. Table 1 analyses these by year.
Table 1: Statutory Instruments made by
the National Assembly for Wales 1999-2002
| Year |
General Instruments
|
Local Instruments
|
Total
|
| 1999 |
29
|
28
|
57
|
| 2000 |
119
|
109
|
228
|
| 2001 |
241*
|
90
|
331
|
| 2002 (to 3 Dec) |
173
|
103
|
276
|
| Totals |
562
|
330
|
892
|
*The figure for 2001 includes 45 General
Statutory Instruments made by the Assembly in response
to the outbreak of Foot and Mouth Disease.
Manifestly these totals represent a substantial
quantitative increase over the Welsh Office’s annual
figures for Wales-only general instruments. Allowing
for speculation that had devolution not occurred, the
Secretary of State might have been called upon to increase
his productivity, in this respect the Assembly has made
a difference. This is true also of its implementation
of the statutory principle that the English and Welsh
languages are to be treated equally.34 The Assembly’s output in the Welsh language
must be regarded as quantitatively distinctive.
It would be more were the devolution
settlement amended so that it enjoyed full rather than
fragmented competence in the Schedule 2 fields. For
example, in the case of education and health, both areas
in which the Welsh Office had developed distinctive
policies and in respect of which a number of functions
have been transferred to the Assembly, Whitehall continues
to make the bulk of the secondary legislation applying
to Wales. The number of instruments made by the Assembly
and by central government for the years 1999-2001 for
these two subject areas are set out in Tables 2 and
3.35
Table 2: Statutory Instruments in Health made by Central
Government applying to Wales and by the National Assembly
for Wales 1999-2001
|
Year
|
National Assembly
|
UK Government
|
|
1999
|
5
|
22
|
|
2000
|
11
|
72
|
|
2001
|
18
|
31
|
Table 3: Statutory Instruments in Education made by
Central Government applying to Wales and by the National
Assembly for Wales 1999-2001
|
Year
|
National Assembly
|
UK Government
|
|
1999
|
11
|
12
|
|
2000
|
14
|
41
|
|
2001
|
14
|
36
|
Assuming that it had full competence
and wished, as a matter of policy, to introduce the
substance of those made by central government, the Assembly
would have needed to make a further 125 instruments
in health and 89 in education. No doubt this is a somewhat
simplistic approach to determining the resource implications
of extensions in the Assembly’s legislative competence.
Nevertheless, the comparative ratio between the number
of instruments made over three years in these two areas
(34:125; and 39:89) gives a broad indication of the
additional resource that would be required to produce
the total of instruments: 367 per cent for health and
228 per cent for education.
QUALITATIVE DISTINCTIVENESS IN SECONDARY
LEGISLATION
Are the Assembly’s general statutory
instruments qualitatively as well as quantitatively
distinctive? This question can be tested by an examination
of the Assembly’s response to transferred functions
requiring or permitting it to make subordinate legislation
on a matter on which there is an equivalent function
exercisable by the UK government. There are two aspects
to this response: its substance and its timing. On the
assumption that the content of every Assembly Order
is the result of deliberate choice, two possibilities
arise: the Order is substantively different or it is
substantively identical to the English equivalent. These
possibilities prompt two further questions: what constitutes
a difference in substance, and, where the instruments
are identical, why might the Welsh Assembly Government
choose that option? The second aspect is that the Assembly
may also have discretion as to when to legislate.
These matters are considered in turn.
Qualitative Distinctiveness: Substance
Significant Differences Reflecting Welsh Circumstances
The political sensitivity of this heading
stems, as noted, from the Welsh Office’s practice
of adopting verbatim the substance of English
instruments for Welsh purposes when making instruments
together with England. But as implied by the two possibilities
outlined above, there may be very good policy reasons
for the two instruments to be substantively identical,
even where the Assembly is free to pursue its own policies.
Nor is there any obvious proportion of the total of
instruments in any year which could claim the label,
‘made in Wales’ that could be used as a measure
of distinctiveness in their making.
A former Secretary of State, Lord Morris
of Aberavon, while evaluating the Assembly’s performance
in its first year of law making, suggested that we might
annually expect 10 per cent of Assembly Orders to differ
in substance from their English equivalents.36 On the figures given earlier, we saw that about
a third of the Assembly’s general instruments were
"… either unique to Wales
or, where they paralleled similar legislation passed
in England, involved significant differences in
drafting reflecting Welsh circumstances."37
Lord Morris’ expectation is, assuming
it to be well founded, comfortably exceeded. The details
are set out in Table 4.
Table 4: General Statutory Instruments
made by the National Assembly for Wales 2001: Welsh
and English equivalents and non-equivalents
| Subject
Area |
Orders with distinctly Welsh content
(A)
|
Orders mirroring those for England
(B)
|
Total (A+B)
|
(A) as a % of total
|
| Transport Planning and
Environment
|
10
|
12
|
22
|
45%
|
| Education and Lifelong
Learning |
15
|
15
|
30
|
50%
|
| Health and Food Safety |
4
|
34
|
38
|
11%
|
| Social Care |
6
|
16
|
22
|
27%
|
| Agriculture, Fisheries
& Forestry |
12
|
71
|
83
|
14%
|
| Local Govt. and Housing,
Economic and Industrial Development |
27
|
18
|
45
|
60%
|
| Welsh Language |
1
|
-
|
1
|
100%
|
| Total |
75
|
166
|
241
|
31%
|
Discounting the single Order dealing
with the Welsh language as not providing a test of potential
substantive equivalence with any English instrument,
it is arguable that the proportion of instruments that
were significantly different was higher. This is because
a large number dealt in the same terms with attempts
to control the foot and mouth crisis. Discounting them,
the Counsel General’s conclusion was that the proportion
of instruments made in 2001 that were significantly
different was 39 per cent.
To assess this claim, it is necessary,
first, to identify all the instruments that are included
in the 75 ‘distinctly Welsh’ column; and,
second, to compare them with the English instrument
made under the equivalent provision. At the time of
writing, it has not been possible to complete this substantial
exercise, particularly as some Assembly instruments
combine concepts included in more than one legislative
instrument. This exercise also requires a comparison
of an instrument’s legal effect in terms of the
powers used in the primary legislation to make it. That,
too, is a major undertaking. It is then necessary to
develop criteria by which any differences between them
might be judged significant. Based on a small number
of randomly selected instruments, the following possibilities
arise:
- Technical differences consequent on the legislative
authority for the instrument.
- Differences dependent on the existence of differently
constituted audiences, but to whom the same message
is being sent. Are instruments concerning, for example,
health, addressed in Wales and in England to their
differently constituted health authorities significantly
different where their substance is identical?38
- Commencement orders made in England and in Wales
may bring provisions into force on different days
and sometimes for different purposes. At what point
does the difference in days and purposes become significant?
We return to this point when considering the timing
of instruments.
- Differences are not therefore necessarily matters
of categorisation, but as with the number of days
elapsing between commencement orders, matters of degree.
Judgments should also take into account the impact
of differences, however apparently small, on those
to whom they are addressed. A difference of 0.5 per
cent in a rating discount between local authorities
in England and Wales may look very small, but be significant
for a local authority budget.39
- Identical provision being made in one instrument
in Wales to those of two or more in England.40
- Bringing the same regulations into force in Wales
that were made in England pre-devolution, but with
a variation as to their application.41
The examples from which these points
are drawn unquestionably reflect Welsh circumstances.
No doubt they do not exhaust the range of matters on
which instruments made in Cardiff and in Whitehall might
differ. Certainly it is not suggested that they are
representative of those matters, though other examples
could be found. Nor has any attempt been made here to
compare the extent of any ‘Walesification’
that was made to Whitehall draft instruments pre-devolution.
Whether the 75 identified in the Counsel General’s
evidence "go far beyond merely amending a precedent
set in London" is a matter of judgment, but not one
which, on this very limited sample, this chapter can
make.
Choosing the Identical Option
Whatever the proportion of significantly
different Assembly Orders, there will inevitably be
a large number identical in substance to their English
equivalents; in Table 4, the 166 orders "mirroring those
for England". There are good reasons why this should
be so. As the Counsel General’s evidence shows,
the need to control the spread of foot and mouth disease
in 2001 required large numbers of emergency orders to
be made:
"For practical reasons these
had to be identical with those in force in England
and were often made jointly with the UK Agriculture
Minister."42
Secondly, instruments may be identical
because they relate to a matter on which the Assembly
was required to act bilaterally with central government.
Thirdly, even where the Assembly is free to act, the
Order may be identical to the Whitehall equivalent because
its substance entirely represents considered Assembly
policy. If the English equivalent already exists in
draft, it is administratively convenient to copy it.
Alternatively, they may be identical because the need
for uniformity across England and Wales outweighs the
Assembly Government’s preferred choice, for example
in the implementation of Community Directives.
These kinds of reason are themselves
very similar to those which lie behind the Scottish
Parliament’s acceptance of Westminster primary
legislation on devolved matters.43 Not being privy to the decision within the Welsh
Assembly Government as to whether any particular instrument
is to be drafted in Cardiff, or comprise a cut and paste
from Whitehall, it is not possible for this chapter
to take this analysis further. What that requires is
a full content analysis of all Assembly instruments
compared with their English equivalents, together with
an analysis of the political choices made.
Qualitative Distinctiveness: Timing
Besides decisions concerning how many
instruments to make, and with what content, the Assembly
may also have discretion as to when to legislate.
In terms of their legal effect, provisions in primary
legislation affecting the Assembly’s competencies
may, upon their commencement:
- bring into force some new or amended law which neither
permits nor requires any further action by the Assembly
for it to apply to its subject-matter; or
- require or permit the Assembly to undertake some
further action in respect of the subject matter to
which they apply.
In each case the Assembly’s decision
as to when to act depends on a cluster of political
and administrative factors. These may include the fact
that the legislation makes equivalent provision for
England. As with their substance, there may be good
reason either for divergence or for convergence with
Whitehall in the timing of Assembly Orders. Its decision
will be distinctive where it:
- brings a provision applicable in Wales into force
on a different day than its English equivalent (Commencement
Orders); or
- provides for the exercise of a substantive function
on a different day in Wales than its English equivalent.
Where they do diverge, this distinctiveness
will be questionable if the result is to disadvantage
Welsh interests in comparison with those equally placed
in England.
Commencement Orders
A commencement order brings a statutory
provision into force. There are a variety of possibilities
concerning the making of commencement orders in respect
of provisions affecting Wales under post 1999 Acts of
Parliament. In short, they may be made by the Assembly
or by the UK government, and in some cases by both in
respect of different sections of the same Act.44
Where the Assembly is the designated
authority for Wales, it is possible that it may choose
a different day than that chosen by central government
for the commencement of the same or equivalent provision
applicable in England. Moreover, the Assembly might
choose different days for different purposes,45 or might choose not to make the order at all,
or to postpone its making for some time. A further possibility
arises where the primary legislation designates central
government for the purpose of bringing its provisions
into force in both England and Wales. Whitehall might
choose different times for the two. In an evaluation
of the distinctiveness of Assembly’s legislative
profile, this possibility is not considered further.
Commencement orders have two operative
times: the date on which they are made, and the date
that they specify for the commencement of the relevant
section. The period of time between making and commencement
may be short or long. Some of these possibilities may
be depicted as follows, where M1-M3 are alternative
dates for making the Order, and C1-C3 are alternative
dates for the section to come into force:
Jurisdiction
Making
Into force
England ------------------- M -----------------------------------------
C -------------
Wales ------------- M1---- M2 -------
M3 ----------------- C1 --- C2 ----- C3-----
In the case of the Housing Grants (Additional
Purposes) Orders made under the Housing Grants, Construction
and Regeneration Act 1996, for example, the Assembly
acted virtually a year later than the UK government.
The affected provisions came into force on 4 July 2000
in England and on 1 July 2001 in Wales.46 By contrast, the Assembly acted a month earlier
than Whitehall in the making of a commencement order
under the Countryside and Rights of Way Act 2000.47 It is also possible that, though orders are
made on different dates, they provide for commencement
on the same date. Research at Cardiff Law School suggests
that approximately 50 per cent of Orders made by the
UK government and the Assembly concerning equivalent
provisions do this, though, sometimes, for different
purposes.
Devolved Functions Exercisable by the
Assembly
When a section requiring or permitting
the Assembly to make subordinate legislation is in force,
the question arises, what is the timing of that subsequent
action? In particular, if there is an equivalent function
exercisable by the UK government for England, are or
should they be exercised simultaneously?
We considered earlier some reasons for
convergence. As with commencement orders, two operative
dates may be distinguished: the date on which the Assembly
acquires the function, and the date on which it exercises
it. These dates may be the same as, or differ from,
English only equivalents. In the case of functions transferred
under the 1999 Transfer of Functions Order, the Assembly’s
date of acquisition is by definition later than for
Ministers in England. However, in the case of transfers
under post-devolution primary legislation, it may well
be the same, depending usually on the date of the relevant
commencement order.
The second variable is the date on which
the function, whenever acquired, is exercised. The possibilities
that arise from two variables may be depicted as follows,
where A1-A3 are alternative dates on which the appropriate
authority acquired the function, and E1-E3 are alternative
dates on which it was exercised.
Jurisdiction
Acquisition
Exercise
England ------------------- A -----------------------------------------
E -------------
Wales ------------- A1---- A2 -------
A3 ----------------- E1 --- E2 ----- E3 -----
An example is the Assembly’s exercise
some four months after central government of its equivalent
power to exempt from rating an additional class of plant
and machinery under the Finance Act 1988. Despite the
delay, the Welsh and English versions of the Validation
for Rating (Plant and Machinery) Regulations 2001 came
into force on the same day.48
Distinctiveness in Substance and Timing:
Implications
Where a provision is brought into force
for England but not for Wales, or regulations are made
for England but not for Wales, the result is that different
laws often contained in different Acts and subordinate
legislation apply as between the two. This is so irrespective
of whether central government or the Assembly is the
designated authority. Such was the case with the 12
month delay in the Assembly’s making of the Housing
Grants (Additional Purposes) Order. Another example
is the commencement of the Commonhold and Leasehold
Reform Act 2002. This was a matter for central government
for England, where an order was made and came into force
in July 2002,49 and for the Assembly in Wales, where the order
was made in December 2002, coming into force on 1 January
2003. There may have been good reasons for the time
discrepancy, but for those few months the new rights
contained in the Act concerning land purchase were not
available to people buying houses in Wales, wherever
the purchaser then lived.
CONCLUSION
In summary, where the Assembly has functions
to exercise that have equivalents for England, the following
permutations in the law applicable in the two jurisdictions
are possible:
- The timing and substance for both are the same.
- The timing is the same but the substance is different.
- The timing is different but the substance is the
same.
- Both timing and substance are different.
In those three permutations where the
law applicable in Wales is for the time being different
from that in England in respect of the same or equivalent
functions, the question is whether that distinctiveness
is a matter of approbation. This judgment cannot be
made simply from the fact of the instrument’s making,
or from a few selected examples. For those reasons alone,
this chapter makes no such judgment. It does, however,
underline the importance of the following points:
- Agreement about the criteria that make the Assembly’s
exercise of its legislative functions distinctive.
- The need to determine the reasons for convergence
or divergence from England in any case.
- The need for detailed analysis of the content and
the timing of statutory instruments made in Whitehall
and Cardiff.
The reasons for convergence or divergence
in any case, and what is the consequent impact on Welsh
interests, are matters that go well beyond the confines
of this chapter. But they need to be understood if judgments
about the distinctiveness of the Assembly’s legislative
output are to be made.
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