|
 |
| |
Evidence to the Richard Commission on the
Powers and Electoral Arrangements of the National Assembly
for Wales by Professor
Richard Rawlings
| 2.1. Let us begin in Edinburgh. The Scotland Act 1998
and associated instruments provide much of the legal technology
that is required to sustain an effective scheme of legislative
devolution. As well as modification to take account of
local conditions, this can now be fine-tuned in the light
of experience, a distinct benefit for Wales. For the convenience
of the Commission, Annex
I to this Memorandum contains a ‘map’ of
the Scottish system of empowerment.10 |
| 2.2. Naturally there are many ‘jagged edges’
in Scottish devolution.11 As well as the full panoply of ‘general
reservations’ to central government, such as the
Constitution and public service, and defence and foreign
affairs, Schedule 5 to the Act contains a much longer
list of ‘specific reservations’. Relevant topics
range from financial and economic matters to home affairs,
and on through social security and employment to trade
and industry and energy. Meanwhile, Schedule 4 protects
certain enactments from modification by the Scottish Parliament,
not least the chief provisions of the devolution statute
(local ‘entrenchment’). Nonetheless, and especially
for those of us brought up on Welsh devolution, it is
the basic simplicity of the model that shines through,
as premised on the twin categories of ‘devolved’
and ‘reserved’ functions. And the more so, it
is important to add, because of the pro-devolutionary
presumption that power passes unless reserved, which is
designed to promote clarity and stability.12 |
| 2.3. Assuming then a major tranche of primary powers,
certain related features are natural candidates for inclusion
in a ‘Wales Act’. To this effect, it is important
to think not only about possible subject matters but also
about the major legal tools and techniques that would
be associated with the transfer of powers in legislative
devolution. The battery of devices for securing constitutional
compliance by the Scottish Parliament, for example by
means of the prior scrutiny of Bills, is an obvious illustration.
Some of the provisions would be entirely new for Wales,
not least a ringing declaration that legislative devolution
‘does not affect the power of the Parliament of the
United Kingdom to make laws for Wales’,13 while others would effectively be retreads
from the GWA. A different but related point: parliamentary
counsel would no doubt read across the interpretative
guidance to courts contained in the Scotland Act, a limiting
provision officially designed to enable the judges to
give effect to the Parliament’s legislation, wherever
possible, rather than invalidate it. 14 |
| 2.4. The main ‘horizontal’ restrictions on
devolved competencies– territorial limitation, EU
obligations, Convention Rights – obviously would
apply in Wales irrespective of the style of further empowerment.
However, under a substantial scheme of primary powers,
one would also expect to see them grouped Scottish-style
around the core concept of the ‘legislative competence’
of the ‘national’ representative body. 15 |
| 2.5. The kind of constitutional flexibility that is
shown in the allocation of legislative powers to Scotland
would also need to be replicated for Wales. To this effect,
primary powers can be added or taken away by (ministerial)
Order in Council, in either case with the consent of the
Parliament as well as Westminster16. At first sight this may appear unexceptional,
machinery for the transfer of minor matters or administrative
fine-tuning in the light of experience. Yet it could so
easily have a special resonance in the case of Wales,
as one of a number of techniques by which the Assembly
grows into legislative maturity. |
| 2.6. At this point, the concept of a mixed system of
legislative and executive devolution comes into play.
Proceeding on the basis of parliamentary government, with
powers conferred separately on the National Assembly and
what I will term the ‘Welsh Executive’,17 following the Scottish example and allowing
for different ambits or scale of coverage would thus be
of critical importance. |
| 2.7. The Scotland Act works from a simple starting point,
by initially equating the ‘devolved competence’
of ministers to the ‘legislative competence’
of the Parliament.18 In other words, the areas on which it is competent
for the Parliament to legislate – health for example
– are the areas within which the ministers can exercise
their powers, including the making of subordinate legislation.
Flexibility however has once again been factored into
the model, via a general power to transfer additional
functions to Scottish ministers by Order in Council, as
also to rework UK functions as concurrent ones or subject
to consent or consultation requirements.19 In the event, this form of ‘decoupling’
is no minor matter. Reflecting the many demands and complexities
of multi-layered governance, the devolution White Paper
clearly signalled the intention of Whitehall to transfer
extensive executive powers to Scottish ministers, as shown
now across a wide range of functions, for example in relation
to the police, transport and energy. 20 |
| 2.8. Returning to Wales, this element also takes on
particular significance. By reason of the narrower core
of ‘legislative competence’ that the National
Assembly is likely to inherit,21 a corralling of ministers’ powers inside
the boundary would severely curtail Welsh devolution.
Effectively, much ‘width’ would have been traded
for some more ‘depth’. So also the powerful
‘England and Wales’ administrative paradigm
suggests a generous use of the Scottish-style power to
develop concurrent powers and consent provisions for the
benefit of the Assembly: what are appropriately termed
‘bridging provisions’. |
10 For the avoidance
of doubt, the models of Scottish and Northern Irish devolution
used in this Memorandum are designed for comparative purposes,
with a view to Welsh constitutional development. Many
local complexities are passed over.
11 See for detailed legal analysis, C. Himsworth and C.
Munro, The Scotland Act 1998 (Edinburgh: W. Green,
2nd edn 2000).
12 A familiar argument in the literature:
see for example, Constitution Unit, Scotland’s
Parliament: Fundamentals for a New Scotland Act (London:
Constitution Unit, 1996), chapters 3-4. And see Scotland
Act 1998, s. 29 (legislative competence).
13 As adapted from Scotland Act 1998,
s. 28(7).
14 Scotland Act 1998, s. 101 (and
related provisions): see also Northern Ireland Act 1998,
s. 83.
15 Scotland Act 1998, s. 29.
16 Scotland Act 1998, s. 30 and Schedule
7.
17 The terminology is also borrowed
from Scotland. The argument for the final putting to rest
of the ‘corporate body’ (GWA, s.1) bears no
repetition here.
18 Scotland Act 1998, s. 54.
19 Scotland Act 1998, s. 63 and Schedule 7.
20 Scotland’s Parliament, Cm. 3658 (1997),
paragraph 2.7, and see especially, Scotland Act 1998 (Transfer
of Functions to the Scottish Ministers etc) Order 1999,
SI 1999 No. 1750 (the original one).
As discussed below. |
|
|
|
