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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
5. For the less brave-hearted
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| 5.1. Designed from the viewpoint of the less
brave-hearted, the ‘Mark I’ model of legislative
devolution for Wales is charted in Annex
III to this Memorandum. The triple categorisation
of ‘reserved matters’ (in the Scottish sense),
the flexible intermediate class of ‘retained matters’
(where the devolved administration could make statute
law with the support of Parliament), and the residuary
‘devolved matters’, is seen to characterise
the scheme. |
| 5.2. Also incorporating ideas from Northern
Ireland, the Mark I model tailors local constitutional
development to increasing political and administrative
capacities –and so picks up on the familiar local
refrain of ‘walking before running’. To this
effect, it highlights the narrow equation in so much of
the contemporary public discussion in Wales of ‘legislative
devolution’ with ‘the Scottish model’;
and, further, the way in which a creative use of constitutional
technique can help to calm fears of legal and administrative
indigestion. |
| 5.3. Pinning colours to the mast, this ‘phased’
or ‘rolling’ scheme of legislative devolution
is not the author’s preferred option, which –
as discussed below - is a single and generous constitutional
instrument premised on a sustainable settlement and generally
clear lines of political responsibility and accountability
from the outset. Clearly, however, the powers-that-be
may for political reasons etc take a different view. |
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| 5.4. The core list of reserved matters presents
little difficulty. With minor exceptions, perhaps related
to the Language, it is idle to reckon on a Welsh scheme
of legislative devolution that does not entail the catalogue
of general and specific reservations set out in the Scotland
Act 1998. That is to say: not only the classic State functions
like defence and international relations, or the complex
web of ‘the welfare state’ that is social security,
but also a great swathe of the regulatory activities that
characterise modern government, such as employment legislation
and consumer protection. |
| 5.5. The key issue is the additions to the
catalogue. This is where the fact of the unified legal
system of England and Wales comes to the fore. Reflecting
a particular territorial history, so different in this
regard from Scotland, matters of general civil and criminal
law are natural candidates for inclusion in an expanded
Welsh list of reserved matters. Why, it may be asked,
would Wales wish to opt out of such a highly developed
form of jurisdiction?31 A different but related point: perhaps one
day the Assembly Government will wish to have responsibility
for the prisons, as also for the criminal justice system
at large. Now and for the foreseeable future, however,
there are many more immediate priorities. |
| 5.6. Picking up on the comparative experience
of the ‘Celtic cousins’, a measure of flexibility
is a vital ingredient. To this effect, the by-now familiar
machinery of transfer of matters through Order in Council
approved by Parliament would be made available for the
purposes of administrative adaptation and fine-tuning,
including in the case of reserved matters. |
| 5.7. The issue also arises of local entrenchment,
the preservation of certain fundamentals in the new ‘constitution’
of Wales. A ‘Wales Act’ that devolved broad
legislative competence, including in a phased way, could
thus be expected to follow its ‘Celtic cousins’
by guarding against modification by the Assembly of measures
like the European Communities Act 1972 and the Human Rights
Act 1998, as well as its own chief provisions.32 Take Assembly elections for example, presupposing
at least an element of proportional representation. A
vital constitutional guarantee, not least in the historical
context of Labour Party dominance in Wales, the devolved
legislature would be explicitly denied the powers to change
the electoral system. |
| ‘Retained matters’ |
| Turning to the intermediate category, the
novel terminology of ‘retained matters’ |
| is deliberately chosen. At one and the same
time, it leaves ‘reserved matters’ as the functional
Welsh equivalent to reserved matters in the Scotland Act,
and conveys the spirit of the classification as a ‘map’
of prospective devolutionary developments and/or facility
for Assembly statute-making subject to veto by Westminster.33 Again, while the model clearly draws inspiration
from Northern Ireland, the terminology carefully marks
the difference. 34 |
| 5.9. As to the substance, a cluster of matters
can be identified which could sensibly be made the subjects
of retained powers. The orientation is distinctively economic
in flavour, in contrast to the frontline service provision
for the people of Wales that predominates in the category
for immediate transfer under this phased scheme.35 A different but related point: the EU dimension
figures prominently in this context. Along with other
forms of secondary powers, the category of retained powers
would accommodate the use by the putative ‘Welsh
Executive’ of the important function of implementation
of EU obligations that arises from the designation of
the devolved administration under the European Communities
Act 197236. The phased model, it is worth repeating, is
about ‘walking’ and not retrenchment or ‘sitting
back’. |
| 5.10. Economic development is the archetypal
case. As a policy area, it is seen to be of the essence
of the Welsh devolutionary development, a chief motor
of constitutional change.37 But further, it reflects and reinforces the
importance of alternative policy levers in the effective
conduct of governance. Looking to the legal base, economic
development powers in Westminster legislation are classically
drafted in broad terms. A range of administrative activity
is authorised – grants etc – with comparatively
little in the way of subordinate lawmaking powers. In
practice, since the economic development powers have generally
been transferred to or made exercisable by the Assembly
in respect of Wales, the chief constraint is the need
for compliance with the overarching (EU) regulatory framework
on State Aid.38 |
| 5.11. To this effect, for those preferring
to ‘walk’ first with a view to building up legislative
and administrative experience, economic development does
not cry out for the immediate grant of general primary
powers. Of course there may be particular items where
a measure of Assembly statute law would be useful; on
the basis of the phased model this would be possible with
the acquiescence of Westminster. After all, if the standard
of intergovernmental relations is as good as Assembly
ministers generally say it is,39 the potential for conflict is more imagined
than real. It is then worth emphasising that the technique
would have the considerable practical merit of bypassing
the logjam that is the UK Government’s legislative
programme. |
| 5.12. Then there is transport, most recently
combined with economic development in a single ministerial
portfolio. As well as the power of the purse, planning
functions and in particular secondary powers of strategic
direction feature prominently here. It should also be
recognised that this is a particularly challenging policy
area for the devolved administration, not least by reason
of the many ‘cross-border’ connotations associated
with a geographical and historical context of predominately
‘east-west’ links. As illustration, the recent
establishment of a ‘Wales and the Borders’ rail
passenger franchise is a textbook example of both the
scope and demand for new organisational patterns and service
priorities in the light of devolution, and the need for
proper representation and protection of interests in England40 |
| 5.13. To expand the point, this is not a legislative
competence that Whitehall will let go easily, and for
understandable reasons. The fact that at the time of writing
there are no published proposals to implement the Assembly’s
request for a Passenger Transport Bill41 allowing the creation of a Wales passenger
transport executive may also be taken to illustrate the
sensitivities. In this context, bringing transport under
the rubric of retained powers can be seen as a way of
establishing a more genuine ‘legislative partnership’,
a formal framework for a maturing political and administrative
culture post-devolution of give-and-take, as the devolved
administration gains in experience. |
| 5.14. Legislative ‘space’ is seen
in especially short supply in the field of agriculture,
fisheries and forestry. As the saga of GM seeds reminds
us, EU requirements are never far away.42 Again, by the nature of these sectors, the
lawmaking is not only subject to the strong pull of uniformity,
but also tends to be geared towards the regulatory end
of the spectrum, a feature sadly highlighted by the mass
of Assembly subordinate legislation in relation to foot
and mouth disease.43 So in this sphere particularly, primary legislative
powers may be considered a less pressing priority than
certain key executive powers transferable by other means.
Indeed, it is in the area of rural affairs that the concept
of ‘retained matters’ may be said to come into
its own, since particular local requirements should be
capable of being accommodated via the special facility
for Assembly statute-making. |
| 5.15. Much the same can be said of the Environment
as a policy area, which tends in any case to be very closely
related in Wales with rural issues. In fact, the way in
which the EU dimension is likely to take on increased
importance here as an effective source of devolved powers,
in view of the fashion at supranational level for strengthened
techniques of decentralised governance,44 must be a chief consideration for the Richard
Commission. Often it may not be primary powers but designation
for the purpose of a ‘framework directive’ that
is the Holy Grail for the devolved administration in the
guise of Euro-style ‘regional’ government. |
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| 5.16. As the residual category, or what is
left once the ‘reserved’ and ‘retained’
matters’ are accounted for, one would not expect
to see ‘devolved matters’ specified on the face
of a ‘Wales Act’. A useful exercise in constitutional
symmetry, Wales should be treated as no different in this
regard to Scotland and Northern Ireland, the presumption
being that - unless stated otherwise - powers pass. This
sits comfortably with the doctrine of Parliamentary Sovereignty,
since Westminster can reclaim residuary powers which acquire
UK significance, and further with the idea of evolutionary
development which infuses the model, the sense that Wales
should now enjoy the fruits of flexibility and room for
growth. |
| 5.17. As for possible subject areas, the Richard
Commission does not have far to look. The original schedule
of fields of devolved competencies in the GWA rounds up
the usual suspects.45 Health and Education and Training head the
list. Both areas are seen to be at the heart of distinctive
Welsh policy-making post devolution, linked in turn to
novel Wales-only provisions in primary legislation.46 A peculiar demography and entrenched patterns
of disadvantage, and in the case of education a considerable
history of Welsh policy making, points firmly in the direction
of greater diversity and adaptation to local conditions
(over and above what Assembly Ministers currently contemplate).
Primary legislative powers, to underpin the administrative
room for manoeuvre and obviate the need for reliance on
Westminster, and more especially – including from
a Labour viewpoint – to provide a constitutional
guarantee of the traditional principles of the NHS in
Wales, can be seen as a natural development here. |
| 5.18. Legislative devolution of this kind
suggests not only a ‘deepening’ of devolved
competencies but also a ‘widening’, with additional
items being made Assembly responsibilities on the basis
of the subject-area classification. In turn, the question
is raised of specific reservations, which the Richard
Commission must grapple with on a case-by-case basis.
The issue of devolving powers on pay and conditions for
teachers - as part of an integrated framework of educational
policy in Wales - is one obvious example.47 |
| 5.19. What, it may be asked, of areas such
as housing and personal social services? Once again, full
statutory powers would sit comfortably with the basic
constitutional ideas of responsibility and accountability
on this major interface of the citizen and the administration.
As the First Minister says, ‘check against delivery’.48 But there is more to it than this. The practical
experience of devolved government can now be said to have
greatly strengthened the argument, by demonstrating the
increased potential for flexible and responsive approaches
to policy development and implementation that range across
departmental lines. Health and housing for example: it
is now of the essence of the emergent forms of Welsh governance
that such matters run together as part of an overarching
theme like social inclusion.49 A blocking up of formal legal powers across
the more traditional categories of public administration
is thus seen as a useful next step. |
| 5.20. Another leading candidate for inclusion
in the list of devolved matters is introduced. Local government
in Wales is the principal delivery agent of Assembly policies
across a broad swathe of public service provision, including
by reason of more traditional Labour policies in fields
like education and housing. From this it follows that
the devolved administration now funds local government
expenditure to a very considerable extent, as well as
being engaged with the principal authorities at many different
levels. But further, the partnership-style relations of
this democratically elected tier with the new devolved
administration are seen at the heart of a distinctive
form of political and administrative culture now emergent
in ‘the new model Wales’.50 For its part, in the face of this home grown
development, Westminster appears increasingly remote. |
| 5.21. Full primary powers, constructed with
a view to the Assembly establishing and reworking relevant
legal frameworks in close dialogue with local government,
can thus be seen as a valuable tool, one which reflects
and reinforces the many administrative advantages of flexibility
in this little country. In fact, on the constitutional
front, many of the key items already fall within Assembly
jurisdiction: internal structures, electoral arrangements
and boundaries, etc. |
| 5.22. Planning is a more difficult case. For
the purpose of a fully mature scheme of legislative devolution,
it clearly should come within the purview of transferred
matters as a prime field for greater sensitivity and understanding
of local conditions. If the devolutionary rationale of
‘bringing government closer to the people’ does
not entail land-use, what is it for? Supposing however
that the powers-that-be were minded to go for a phased
scheme, then this subject-area could sensibly be assigned
along with local government, where there are very close
administrative connections, or left with the environment
and transport etc as one of the ‘retained matters.’
On balance, and factoring into the equation the weight
of experience that the local civil service has in this
particular field, as well as the contemporary significance
of statutory reform as illustrated in the Planning and
Land Compensation Bill currently before Parliament, it
is listed as a devolved matter. In this case, the Welsh
Assembly Government already is jogging. |
| 5.23. Meanwhile, items such as ‘culture,
recreation and Welsh Language’ speak for themselves.
Fingered in an earlier age by the Kilbrandon Commission,51 it is inconceivable that a scheme of legislative
devolution for Wales would not include them. If the devolved
administration cannot be trusted with full legislative
responsibilities for such matters, which bear so directly
on the ‘particularity’ or national identity
of Wales, what sensibly can it do? |
31
A point developed in R. Rawlings, Delineating
Wales.
32 See for example Northern Ireland Act 1998,
s. 7.
33 A watered-down version of the
Northern Ireland arrangements, whereby an Assembly Bill
was made subject to negative resolution procedure prior
to being presented for Royal Assent, would help to limit
the likelihood of dispute between the UK Government and
the devolved administration.
34 There would of course be no power
for the Secretary of State to legislate for Wales on ‘retained
matters’.
35 As discussed below, paragraphs
5.16 -23.
36 See further below, paragraphs
5.14 -15.
37 A Voice for Wales (Cm.
3718, 1997), chapter 2.
38 See for details, the evidence
from Andrew Davies to the Commission.
39 Including as in the case of the First Minister in evidence
to the Commission.
40 See for the background, Welsh
Affairs Select Committee, Transport in Wales (HC
205, Session 2002-03).
41 As part of its list of (8) bids
for primary legislation targeted on the parliamentary
session 2002-03: see further below.
42 Discussed in the evidence to the
Commission from the Counsel General.
43 Ibid.
44 European Commission, White
Paper on Governance COM (2001) 428; and see for general
discussion, R. Rawlings, ‘Cymru yn Ewrop’ in
P. Craig and R. Rawlings (Eds.) Law and Administration
in Europe (Oxford: Oxford University Press, 2003).
45 GWA, schedule 2.
46 For example the Assembly policy document The Learning
Country (2001) and Education Act 2002 Part 7.
47 Winston Roddick, Counsel General to the Assembly, discussed
the legal background in his evidence to the Commission.
48 Rhodri Morgan, Check Against Delivery (Aberystwyth:
Institute of Welsh Politics, 2000).
49 As illustrated by the Welsh Assembly Government’s
flagship programme, Communities First.
50 M. Laffin, G. Taylor and A. Thomas,
A New Partnership? The National Assembly for Wales
and Local Government (York: Joseph Rowntree, 2002).
51 Report of the Royal Commission
on the Constitution, 1969-1973, Cmnd. 5460 (1973),
chapter 24. |
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