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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
| 4.1. As every public lawyer knows, one of
the great traps when constitution-building is to be overly
prescriptive. One need look no further than the Scotland
Act 1978, which in seeking to divide powers into watertight
compartments, and in striving (list-style) after legal
certainty, set out a rigid and highly complex scheme.
In contrast, and not least in the contemporary conditions
of what political scientists call ‘multi-layered
governance’, as characterised by overlapping competencies
and innovative techniques of administration, what is wanted
for Wales is a designedly more flexible arrangement, one
that is robust because it is more supple. |
| 4.2. A prime concern must be to identify those
areas of public policy where Wales could usefully enjoy
a substantial legislative space, so allowing for greater
sensitivity to local conditions. Perhaps then it is not
surprising to find the idea of the differential impact
of primary powers featuring prominently in the Welsh Assembly
Government’s evidence to the Commission.29 The varying importance of legislation as an
implementation tool across the different policy portfolios
clearly is a major consideration, including for the purpose
of a ‘phased’ approach to a scheme of legislative
devolution. |
| 4.3. It is however important not to lose sight
of the parallel need for a manageable and generally comprehensible
constitutional arrangement. This is not to suggest a simplistic
form of co-ordinate jurisdiction, a devolutionary analogue
to so-called ‘layer-cake federalism’, in the
sense of a few basic dividing lines. Rather, the point
reflects the contemporary history of Welsh devolution,
not least the way in which - as ‘an affair of the
elite’- official concerns have been prioritised.30 Whither, it may be asked, the idea of ‘a
people’s constitution’? By which is meant a
set of arrangements more in tune with the radical political
traditions of Wales, in the sense of being tolerably clear
and understandable to the local electorate, more especially
as regards the basic lines of responsibility and accountability.
Concurrency of powers is often a vital element, not least
these days in the face of the European Union, but the
would-be constitution-maker for Wales should beware sowing
unnecessary confusion. |
29
See for example the contributions from the Assembly Cabinet
of Michael German and Jane Hutt.
30 A
theme first elaborated in R. Rawlings, ‘The New Model
Wales’ (1998) Journal of Law and Society 461.
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