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Evidence to the Richard Commission on the
Powers and Electoral Arrangements of the National Assembly
for Wales by Professor
Richard Rawlings
| 1.1. In the course of its inquiry, the (Richard)
Commission on the Powers and Electoral Arrangements of
the National Assembly for Wales has compiled a formidable
‘library of evidence’. There is much valuable
material on the practical workings of Welsh devolution,
on the various strengths and weaknesses of the current
constitutional scheme of executive devolution, and on
the remarkable developments in terms of the internal architecture
that have taken place since the Assembly was first empowered
in 19991. |
| 1.2. However at one with the retarded development
of a Welsh tradition of public law2, there is little in the evidence by way of general
examination of ways forward3. So with a view to providing ‘added value’,
and proceeding on the basis that no major inquiry into
the empowerment of the Assembly could fail to consider
a scheme of legislative devolution, this Memorandum of
Evidence presents two possible approaches. The aim is
both to aid the Commission in its general deliberations
and to establish some basic parameters should Members
conclude that the existing ‘devolution settlement’
does not do for Wales. |
| 1.3. The focus of this Memorandum is on the
central issue of empowerment4. Three related considerations underpin the analysis.
The first one is conveyed by the injunction, ‘for
Wales, see Wales.’ For those well versed in the history,
this marks the devolutionary logic or distance from the
old infamy of ‘for Wales, see England’. But
further, it underscores the case for a form of constitution
building for Wales that at one and the same time ‘brings
government closer to the people’ and
pays due regard to the history and the geography of this
little country. |
| 1.4. In terms of the UK devolutionary development,
symmetry will often have much to commend it. From the
basic structure of the ‘block and formula’ system
of territorial finance to the arrangements for handling
legal disputes or ‘devolution issues’ by the
Judicial Committee of the Privy Council, and on through
the design of the formal structures of intergovernmental
relations5, this is given very tangible expression. Then
again, in the case of the four countries of the Union
‘one size does not fit all’ for so many reasons.
Notably, for present purposes, the uniquely powerful geo-political
concept of ‘England and Wales’, famously expressed
in, but not confined to, the overarching unity of the
English and Welsh legal system, is not about to go gently
into the night. |
| 1.5. The ‘Mark I’ and ‘Mark
II’ schemes of legislative devolution presented in
this Memorandum thus consciously reflect the interplay
of the twin elements of uniformity and diversity, and
in particular of the two official paradigms of ‘Wales’
and ‘England and Wales’6. They reflect in turn the many dynamics of the
current ‘devolution settlement’, including the
major home grown or autochthonous development since 1999.
The fact that Wales embarked on the devolutionary process
from a low base -constitutionally, legally and administratively
– is seen for these purposes as both a significant
and diminishing factor. |
| 1.6. Secondly, the Commission is ‘keen
to take a very practical approach’.7 To make an impact, its recommendations must be
grounded in fact, as well as being workable and realistic.8 At the same time, the charting of a general constitutional
design clearly has much to commend it, including as a
guard against failure to see the wood for the trees. |
| 1.7. A blending of the context-specific with
the demand for a manageable and tolerably clear-cut constitutional
arrangement, as also the creation of a constitutional,
legal and administrative ‘space’ in which the
new Welsh polity is able to grow to maturity inside a
robust framework, is the essence of the matter. Forged
against the background of the devolutionary development
to-date, including emergent forms of local policy initiative,
the two suggested schemes are thus designed to incorporate
particular concerns in a broader format. |
| 1.8. There is little to be gained in seeking
to reinvent the wheel. Much can be gleaned for present
purposes from the designs of empowerment in Scotland and
Northern Ireland. ‘For Wales see Wales’: it
is then a case of tailoring constitutional development
to local conditions in the light of comparative experience,
most obviously that of ‘the Celtic cousins’.
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| 1.9. Thirdly, the simplistic dichotomy between
‘legislative’ and ‘executive’ devolution
has bedevilled the constitutional debate in Wales.9 In the event, the existence of different or competing
models of executive devolution, and in particular the
scope for organic change inside the framework of the Government
of Wales Act 1998 (GWA) has been more than amply demonstrated
in the short history of the Assembly. So too, it is important
to think in terms of alternative models of legislative
devolution, more or less generous, complete or phased.
There is once again a rich tapestry of choice for Wales
under the general classification. |
| 1.10. The dichotomy is also apt to imply that
legislative devolution and executive devolution are mutually
exclusive. In fact, for reasons that will be explained,
a mixed system of primary and secondary competencies for
Wales is readily envisaged, one in which strictly ministerial
powers feature prominently. The question then is not just
‘whether’, or even ‘how much’ legislative
devolution, but also how to integrate the different kinds
of legal power in a reworked form of devolution settlement
for Wales. |
1 Epitomised
in the rise to prominence of the Presiding Office and
the arrival on the scene of the ‘Welsh Assembly Government’.
See generally, R. Rawlings, Three Faces of the National
Assembly for Wales (University of Wales, Swansea:
2002).
2R. Rawlings, ‘Taking Wales
Seriously’ in T. Campbell, K. Ewing and A. Tomkins
(eds.), Sceptical Essays on Human Rights (Oxford:
Oxford University Press, 2001).
3This is not to overlook the contributions from the
various political parties, as also a considerable history
of proposals (most obviously in terms of the ill-fated
Wales Act 1978). See especially in the context of the
current scheme, Constitution Unit, An Assembly for
Wales (London: 1996).
4The related questions of the
electoral arrangements and (save at a very general level)
of the internal architecture thus lie beyond the scope
of the Memorandum. For its part, the Commission has taken
the view that ‘size should follow function’:
Richard Commission, The Electoral Arrangements of the
National Assembly for Wales: issues and questions for
consultation (March 2003), 2.
5See further, R. Rawlings, ‘Concordats
of the Constitution’ (2000) 116 Law Quarterly
Review 257.
6 As highlighted post-devolution
in the different forms of primary legislation affecting
Wales: see generally, Welsh Affairs Select Committee,
The Primary Legislative Process as it affects Wales
(HC79, Session 2002-03).
7 Richard Commission, The
Powers of the National Assembly for Wales: Issues and
Questions for Consultation (November 2002), 2.
8 A message rammed home in the evidence to the Commission
by the Secretary of State for Wales, Peter Hain.
9 R. Rawlings, ‘Quasi-Legislative Devolution:
Powers and Principles’ (2001) 52 Northern Ireland
Legal Quarterly 54. |
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