|
 |
| |
Evidence to the Richard Commission on the
Powers and Electoral Arrangements of the National Assembly
for Wales by Professor
Richard Rawlings
8. 'Wales' other Parliament' - Super-Sewel
|
| 8.1. Much of the current constitutional debate
in Wales proceeds on a false assumption: namely, that
having primary lawmaking functions means exercising them.
Westminster need not strain at a generous transfer of
powers because the fact is that an Assembly Government
worth its salt is not going to try to legislate across
the board. This in turn is another consideration in favour
of the Mark II model. |
| 8.2. The well-known Sewel Convention developed
for Scotland, whereby Whitehall acts on the basis that
Westminster ‘would not normally legislate with regard
to devolved matters except with the agreement of the devolved
legislature’,58 is seen here as an essential element in the
continuing dynamics of Welsh devolution. That is to say:
not only as a protective measure, but also as a major
tool for the efficient and effective conduct of legislative
business, and further as an important piece of machinery
underpinning Welsh constitutional development. ‘Walking
before running’, or growing into the part: Sewel
would allow a Welsh legislature and government clothed
with primary legislative powers to do precisely this.
59 |
| 8.3. As is well known, Westminster legislation
for devolved matters in Scotland has been far more frequent
than was originally envisaged. In the first three years
of its existence, the Scottish Parliament agreed almost
as many ‘Sewel motions’ seeking its consent
to such legislation as it enacted bills.60 The reasons are not difficult to understand.
First, there is the strength of the pull towards uniformity
in the devolution settlement(s). The sources of which
range from electoral expectations to reliance on UK bodies
for the purposes of administration, and on through subject
matter that does not lend itself to different regulatory
regimes to the need to give effect to international –
including EU – obligations. Second, this form of
legislative piggybacking may be convenient or attractive
to the devolution administration in various ways, including
a reliance on central government’s unique policy-making
capacity, avoiding disruption to the local legislative
programme, and more effective ‘judge-proofing’
(via the doctrine of parliamentary sovereignty). ‘Labour
in power’ in London and (in coalition) in Edinburgh
obviously is another factor. |
| 8.4. There are powerful echoes here in the
lawmaking for Wales under the scheme of executive devolution.61 But further, one would expect to see the general
effect magnified in the case of legislative devolution
for Wales. It is not simply that Wales lags behind Scotland
in terms of local developmental capacities. The exceptionally
strong geo-political concept that is ‘England and
Wales’ – a ‘pull towards uniformity’
unparalleled inside the United Kingdom – could also
find free expression in Sewel motions, most obviously
in the early years of a putative Welsh parliament. |
| 8.5. The point is worth pursuing. The Permanent
Secretary for example has indicated that were the Assembly
‘to settle down’ to producing no more than 4
or 5 important pieces of primary legislation a year, then
the local civil service would have the capacity to cope
without much further enhancement.62 As a filtering mechanism, a way of allowing
local actors to concentrate on what seem to them to be
the real areas of priority, Sewel would come into its
own here. |
| 8.6. An ever-present danger in the debates
on Welsh devolution, and especially at the current stage
of constitutional development, is too much emphasis on
formal legislative powers. Once again, in the words of
the Permanent Secretary, ‘I would hope that the acquisition
of primary legislative powers would not "squeeze out"
too much of the administrative and policy ingenuity which
is a feature of the present Assembly’.63 Sewel can also help in this respect. |
| 8.7. Then there is the political dimension.
Some day, the Welsh Labour Party may learn to appreciate
its good fortune. Legislative devolution coupled with
Sewel: from the viewpoint of the dominant political force
in Wales this might even be described as ‘win-win’.
Clear blue water or political cohabitation with London
– do your own thing; Labour hegemony - Sewel if you
want to. The trick then is to be clear about the use and
non-use of the local ‘legislative space’: target
resources, including in the light of growing ambition;
and look elsewhere to rely on Westminster, unless of course
there is good reason.64 |
| 8.8. ‘Super-Sewel’ or a strong recourse
to Westminster as ‘Wales’ other parliament’:
the idea also shows the famed flexibility of the British
Constitution to good advantage. Precisely because of parliamentary
sovereignty, Sewel allows for effective forms of co-ordination
and collaboration – legislative partnership65 - that are typically more difficult to achieve
in federal systems of divided competencies. Members of
the Commission should thus take note of the splendid paradox:
the way in which a more generous allocation of power to
Wales can now be accommodated by reason of the constitutional
quality of devolution – in the old phrase - as ‘power
retained’. |
58 Memorandum
of Understanding and Supplementary Agreements, Cm.
5240 (2001), paragraph 13.
59 One could even envisage ‘general’
Sewel motions, whereby Parliament would legislate on subject
areas of devolved competencies until the Assembly was
ready to become involved: in effect, another form of ‘phased
devolution’.
60 A. Page and A. Batey, ‘Scotland’s
Other Parliament: Westminster Legislation about Devolved
Matters in Scotland since Devolution’ [2002] Public
Law 501. And see Scottish Executive, The Sewel
Convention: Procedural and Practical Issues (January
2003).
61 A general theme developed in R.
Rawlings, Delineating Wales. See also D. Miers,
‘Law Making’ in J. Osmond and J. Barry Jones,
Birth of Welsh Democracy.
62 See the evidence to the Commission
by Sir Jon Shortridge. The evidence from the Counsel General
is in similar vein.
63 Ibid.
64 This is not to overlook the need to protect the position
of the devolved parliament in the Sewel process, for example,
via a special ‘scrutiny reserve’. See House
of Lords Select Committee on the Constitution, Devolution:
Inter-Institutional Relations in the United Kingdom (HL
28, Session 2002-03) paragraphs 126-134.
65 As distinct from the nascent
form of ‘co-legislating’ under the current scheme
of executive devolution: see K Patchett, Developing
a Partnership Approach to Primary Legislation between
Westminster and the National Assembly (Cardiff: Institute
of Welsh Affairs, 2002). |
|
|
|
