|
 |
| |
Evidence to the Richard Commission on the
Powers and Electoral Arrangements of the National Assembly
for Wales by Professor
Richard Rawlings
9. Executive devolution: phoenix from the ashes
|
| 9.1. Legislative devolution, it is well to
remember, is not only about primary powers. Implicit in
such a scheme for Wales is a major boost to the pre-existing
form of lawmaking activity that is Assembly general subordinate
legislation. In particular, and highlighting the interplay
of Welsh devolution with the strong administrative paradigm
of ‘England and Wales’, central government has
been seen making many regulations applying to Wales in
matters of health and education,66 now identified as the leading candidates for
legislative devolution. To the extent that secondary legislative
powers follow primary ones, by which is meant the substitution
of a unitary competence for the present (highly) fragmented
one, local subordinate lawmaking activity could thus be
expected to increase considerably, if only to keep up
with England. |
| 9.2. However, the Commission could usefully
scour the series of Scottish transfer of functions orders
with a view to determining which ministerial powers should
be allocated to Wales in respect of other reserved functions.
In addition, that is, to the many ministerial powers that
would remain devolved in those subject-areas not yet covered
by a scheme of phased legislative devolution (’retained
matters’), should that approach command acceptance. |
| 9.3. The tripartite model of ‘decoupling’
of executive functions, whereby the outright transfers,
the concurrent powers, and the consent or veto and consultation
requirements, are listed in successive columns in the
Scottish transfer orders, would come into its own here.
Take the regulation of the medical professions, an important
source of central government regulations applying to Wales
in the field of health, and also the subject of specific
reservation in the Scotland Act67 Instead of legislative devolution, or indeed
direct subordinate legislative activity by the Assembly
in much of this field, one could envisage a creative use
of consent provisions etc, so facilitating uniformity
while underscoring the authority of the devolved administration,
most obviously in the official discussions with Whitehall.
|
| 9.4. One should keep in mind that the Scottish-style
transfers of functions to ministers operate in one direction.68 So used in the event of legislative devolution
to Wales, they would not hit at the policy made evident
in the original Assembly transfer of functions order of
limiting the use of consent provisions etc in favour of
the UK Government.69 As a rule of thumb, central government can
be left here to its own devices. |
| 9.5. As part of a general clean-up exercise,
some important anomalies could usefully be rectified,
with a view to enabling Assembly ministers to pursue coherent
and rounded policies. By way of illustration, the
Assembly has not had powers of direction and guidance
over the Strategic Rail Authority (SRA) in relation to
services in Wales, being relegated instead to the status
of a statutory consultee. To quote the all-party Welsh
Affairs Select Committee, ‘the Assembly cannot pursue
an effective integrated transport policy without further
powers’.70 Courtesy of the transfer of functions orders,
the Scots in contrast have had their act together, aided
by additional resources from 2004 for the funding of local
services.71 To push home the point: this is not a question
of legislative devolution, but rather a classic illustration
of the mixed system of legislative and executive devolution
that now obtains ‘north of the border’. The
provision and regulation of railway services except for
certain grants etc is thus specifically reserved under
the devolution statute. 72 |
| 9.6. The case of the ‘wind farms’
is another well-known example. Decision-taking powers
for major projects in Wales, those generating 50+ megawatts
of electricity, have remained with the UK Government.
In the anodyne language of officials, this ‘raises
issues when the Welsh Assembly Government tries to implement
a coherent policy on renewable energy’.73 Whereas energy matters are generally reserved
under the Scotland Act, the relevant executive powers
have been in the hands of Scottish ministers since the
dawn of the Parliament. 74 |
| 9.7. With the development of a primary legislative
competence, central government objections to the Assembly
exercising broad forms of Henry VIII powers to repeal
and amend Westminster statutes would be further undermined.75 No longer could it be seriously argued for
example that the important powers arising under the Regulatory
Reform Act 2001 to remove redundant legislation or legislation
which imposes unnecessary burdens on businesses etc should
be denied the Assembly. On the basis, that is, of ‘equivalence’
to the making of new primary legislation and so of ‘inconsistency’
with the ‘devolution settlement’. 76 |
| 9.8. The current position is that the Assembly
must be consulted on any regulatory reform order that
extends to Wales and such an order can be made only with
the agreement of the Assembly.77 It thus illustrates the type of bridging provision
that could be developed more generally for the ‘Welsh
Executive’, as well as constituting a suitable case
for transfer into the category of powers exercised by
Welsh ministers in the event of a scheme of legislative
devolution. To this effect, primary powers for the Assembly
- phased or otherwise - should now be recognised as providing
a major opportunity for the qualitative enhancement of
devolved secondary powers, including at the top end. |
| 9.9. Substantial powers for Welsh ministers
may also be justified in some new areas, by which is meant
fields of government activity other than the fields of
devolved functions mentioned in the GWA. The policing
function is an obvious illustration. A striking feature
of the devolutionary development since 1999, the Welsh
Assembly Government has moved rapidly to develop contacts
and exercise influence in this sphere under the rubric
of crosscutting themes such as community safety and social
inclusion, culminating most recently in the Cabinet portfolio
of ‘Social Justice and Regeneration’.78 Funding, which involves the Assembly in channelling
grant from central government to the four police forces
in Wales, and in controlling their Council Tax precepts,
is then the visible element of what is an increasingly
large iceberg of working relationships involving both
ministers and officials. In short, the case for additional
powers sits comfortably here with the more holistic approach
to policy development and implementation currently being
pursued by the devolved administration. |
| 9.10. Yet coinciding with devolution, there
has been a very considerable centralisation of the police
service in England and Wales. Such is the era of a ‘National
Criminal Justice Board’ and a ‘National Policing
Plan’, as also of enhanced New Public Management
techniques applied to the police, the familiar paraphernalia
of standards, targets, and league tables that are centrally
driven from the Home Office. The fact that the Assembly
is not mentioned in the governing legislation, the Police
Reform Act 2002, says much. |
| 9.11. The Commission has the nice task of
squaring the circle. By reference, that is, to the democratic
imperative on the devolved administration to make a difference,
not least ‘on the streets’, and the lack of
a secure legal framework for doing so, a situation which
in turn raises significant issues of responsibility and
accountability in the new Welsh polity. Not forgetting
the customary leech-like qualities of the Home Office,
which no doubt extends to primary legislative power over
the police in England and Wales. Politically more feasible,
a transfer of functions to Welsh ministers could usefully
be targeted on issues of operational policing, for example
in the guise of a ‘National Policing Plan for Wales’
sensitive to local conditions, as also questions of organisational
structure such as the ‘fit’ with the other emergency
services.79 The Commission will also wish to keep in mind
the financial implications of such transfers of powers,
and in particular the coverage of any consequential amendment
under the famous ‘Barnett formula’.
80 |
66
See D. Lambert, D. Miers and M. Navarro, Memorandum
of Evidence to the Welsh Affairs Select Committee,
The Primary Legislative Process as it affects Wales.
67 Scotland Act 1998, schedule 5, section G.
68 With the caveat that new requirements
of agreement or consultation can be imposed on powers
transferred or made concurrent under such an order: Scotland
Act 1998, s. 63(3).
69 National Assembly for Wales (Transfer
of Functions) Order, SI No. 672, 1999: Welsh Office, Making
the difference in Wales (1998).
70 Welsh Affairs Select Committee,
Transport in Wales (HC 205, Session 2002-03), paragraph
38; a view reflected in the ‘Passenger Transport
Bill’ proposed by the devolved administration.
71 See especially Scotland Act 1998
(Transfer of Functions to the Scottish Ministers) Order
1999, SI 1999 No. 1750; also, Scotland Act 1998 (Transfer
of Functions to the Scottish Ministers) Order 2001, SI
2001 No. 954.
72 Scotland Act 1998, schedule 5, section E2; also Scotland
Act 1998 (Modifications of Schedule 5) Order 2002, SI
No. 1629, 2002.
73 See
the evidence from Andrew Davies, especially Annex
2. The powers are contained in ss. 36-37 of the Electricity
Act 1989.
74 Scotland Act 1998, schedule
5, section D1; Scotland Act 1998 (Transfer of Functions
to the Scottish Ministers) Order 1999, SI 1999 No. 1750.
75 The various approaches
are considered in detail in R. Rawlings, Delineating
Wales; see also the evidence to the Commission from
the Assembly Presiding Officer, Lord Elis Thomas.
76 As
explained in the evidence from Andrew Davies.
77 See for practical illustration,
Assembly Record 29 January 2003.
78 Following the 2003 Assembly Elections: see Welsh Assembly
Government press release 8 May 2003.
79 See further, Independent Review
of the Fire Service, The Future of the Fire Service:
Reducing Risk, Saving Lives (December
2002).
80 As discussed in the local context
by G. Bristow, ‘Finance’, in J. Osmond and J.
Barry Jones (Eds.), Birth of Welsh Democracy. |
|
|
|
