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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
3. Northern Ireland Excursion
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| 3.1. Now let us journey to Belfast. The Northern
Ireland Act 1998 contains not two but three categories
of primary legislative power, as illustrated in Annex
II to this Memorandum. |
| 3.2. The ‘excepted matters’ listed
in Schedule 2 of the Northern Ireland Act broadly mirror
the ‘reserved matters’ of the Scottish legislation
as the things of UK-wide concern that are for central
government.22 Notably, however, this first main category
is also ring-fenced, in the sense of no power of transfer
by Order in Council. An Act of Parliament would be necessary.
As regards the second category – the ‘reserved
matters’ listed in Schedule 3 - these in fact are
matters on which the Assembly can legislate, but only
with the consent of the Secretary of State and Westminster.23 Turning this round, the devolution statute retains
in part the (much-criticised) method whereby the Secretary
of State can legislate for reserved matters by way of
Order in Council, although subject now to consultation
with the Assembly.24 The third category of ‘transferred matters’,
where the Assembly enjoys full primary powers, comprises
all other matters. As one would expect, this is more narrowly
drawn than its functional equivalent of ‘devolved
matters’ under the Scotland Act. |
| 3.3. As regards the distinctive middle category,
flexibility is a crucial element. By means of an Order
in Council, and with the consent of the Assembly, any
reserved matter can be made a transferred matter, and
vice versa.25 Perhaps it hardly needs saying that this relates
to the ‘peace process’ in Northern Ireland,
whereby such sensitive and vital matters as public order
and policing, as well as the criminal law, can be the
subject of transfer if things go well. Yet there is more
to it than this. It may be for example that a reserved
matter is not envisaged as suitable for transfer. Placing
such a matter in this category preserves the flexibility
for the Assembly to legislate on it, which may be useful
say in relation to ‘cross-cutting issues’, as
also to transfer parts of it, if for example administrative
circumstances change. |
| 3.4. From a Welsh perspective, the general
idea of a flexible intermediate category is one that could
be read across. Building on the practical experience of
making subordinate legislation, as also of inputs into
the lawmaking process at Westminster, and constructed
on the basis of the Assembly expanding into new or additional
areas, there would thus be established another framework
for organic change. To this effect, allowing the Assembly
to make particular pieces of statute law would give Members
and officials the opportunity to acquire the skills and
refine the procedures necessary for drawing up, processing
and implementing primary legislation in these fields.
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| 3.5. To adapt the famous saying: legislative
devolution is visualised here ‘as a process, not
an event’.26 Effectively a ‘map’ would be provided
of the areas that over time the Assembly could be expected
to colonise for the purposes of exercising primary lawmaking
powers. In turn, during what would then be ‘phased’
or ‘rolling’ devolution, one could envisage
some additional allocation of subordinate lawmaking powers,
with a view to thickening up Assembly competencies in
relevant fields, including under so-called ‘Henry
VIII clauses’ to change statute law.27 There would also be time and place for further
enhancement of the policy-making capacity etc of the local
administrative machine, in the face of the limited and
limiting historical legacy of the Welsh Office.28 In summary, if Members of the Commission are
minded to conclude that full-sized legislative devolution
is too much for the Assembly to swallow all at once, then
Northern Ireland too offers up some useful comparative
lessons in constitutional design. |
22 See for
detailed comparison, B. Hadfield, ‘The Nature of
Devolution in Scotland and Northern Ireland: Key Issues
of Responsibility and Control’ (1999) 3 Edinburgh
Law Review 3. The tripartite categorisation –
see Northern Ireland Act 1998, s. 4 - derives originally
from the Government of Ireland Act 1920.
23 Northern Ireland Act 1998, ss.
8, 15.
24 Northern Ireland Act 1998, s.
85: it otherwise has to be done by Act of Parliament.
25 Northern Ireland Act 1998, s.
4. Cross-community support is required for the Assembly
resolution.
26 R. Davies, Devolution: A Process
not an Event (Cardiff: Institute of Welsh Affairs,
1999).
27 Discussion of the so-called ‘Rawlings
principles’ also bears no repetition here. See R.
Rawlings, ‘Quasi-Legislative Devolution: Powers and
Principles’; Assembly Review of Procedure (2002),
chapter 4; and Welsh Affairs Select Committee, The
Primary Legislative Process as it affects Wales.
28 A key strand in the local devolutionary development:
as discussed in the evidence to the Commission from the
Permanent Secretary, Sir Jon Shortridge. |
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