Select Committee on Welsh Affairs Minutes of Evidence


Memorandum submitted by Wales Legislation on-line, Cardiff Law School

LAW MAKING IN WALES: WALES LEGISLATION ONLINE

1.  INTRODUCTION

  Ron Davies famously described devolution as "a process not an event";[1] more recently, his successor as Secretary of State for Wales, Paul Murphy MP, spoke of the first three years' implementation of the Government of Wales Act 1998 (GOWA) as "evolution, not revolution".[2] As conceived by GOWA, executive devolution meant that the "single legal personality"[3] that is the National Assembly for Wales (NAW) would perform the functions both of Whitehall and Westminster. But it was clear before 1 July 1999 that the de jure coalescence of the executive and the legislative function would be difficult, if not impossible, to maintain in fact. [4]And so it has proved: "the constitutional history of the Assembly's opening period was dominated by an emphatic rejection of this mode of operation." [5]Within three years NAW has assumed the customary garb of parliamentary government, even if its present corporate status means that there can be no constitutional separation of powers. [6]The initial limiting conception of the role of the Assembly's Presiding Officer has been transformed, now holding a position equivalent to the Speaker, its deliberative, scrutiny and legislative functions serviced by a cadre of officials discharging responsibilities which would be familiar at Westminster. The Assembly Secretariat, responsible for the formulation, promotion and implementation of policy, comprises Ministers, not Assembly Secretaries, and the Executive Committee (comprising those former Secretaries) is now the Cabinet of the newly styled Welsh Assembly Government which came into being on 1 March 2002. [7]

2.  DEVOLUTIONARY TECHNIQUE

2.1  The Government of Wales Act 1998

  Whatever the successes and failures of NAW's deliberative process, [8]its legislative product is confined, unlike the devolution settlements in Northern Ireland and Scotland, [9]to secondary legislation. [10]This power is conferred by GOWA in a manner that is both unique and complex. Under the Scotland Act 1998, the Scottish Parliament's legislative competence is coterminous with the devolved subject areas, unless excepted by Schedule 5 to the Act. [11]There may be boundary disputes (devolution issues), but there is a boundary. By contrast, GOWA itself provides little clue as to what functions may be exercised by the Assembly. There is a small group of disparate powers in sections 27, 28 and 32 relating to its ability to reorganise health and certain other statutory bodies in Wales, and to do anything which may assist matters relating to culture, sport, historic buildings and the Welsh language; [12]in addition, there is a power in section 40 enabling the Assembly to carry out functions which are supplementary to its substantive functions, but these are nowhere to be seen in the Act.

  The potential scope of the Assembly's initial functions is contained in Schedule 2. This lists 18 "fields" within which existing ministerial powers contained in primary and secondary legislation may be transferred to the Assembly under the first Transfer of Functions Order. Although these "fields" mirror the devolved subject areas in the Scotland Act, GOWA does not confer any general legislative competence within them. By section 21, GOWA provides that NAW can only exercise functions where they are expressly given to it by or under the Act, or by or under legislation enacted since the coming into being of the Assembly in May 1999. Unlike the Scottish Parliament (or the Northern Ireland Assembly), NAW has, therefore, no general (secondary) legislative competence within the "fields" of, for example, agriculture, education, health or transport, but only discrete functions within them conferred in a manner provided by section 21; that is, primarily by means of Transfer of Functions Orders made under section 22 and in post-devolution primary legislation. The boundaries of NAW's legislative competence are not, therefore, coterminous with GOWA's "fields", but only with the much narrower confines of each individually transferred function. Until a complete analysis is undertaken of all the sources of such transfers (which includes, in addition to Transfer of Functions Orders and current and proposed primary legislation, subordinate legislation made under the primary legislation listed in the first Transfer of Functions Order made in 1999, discussed below), it will, literally, be impossible to say exactly what is the total of functions, and therefore the full scope of NAW's competence. By any measure, this is a remarkable outcome of executive devolution. It is the accurate and comprehensive identification of these functions with which this note is principally concerned.

2.2  Transfer of Functions Orders

  "The initial powers transferred to the Assembly under the first Transfer of Functions Order were essentially the ministerial functions exercised by the Secretary of State for Wales prior to devolution." [13]Like any other, the Secretary of State for Wales is a member of the collective office of the Secretary of State, "one and indivisible, with the consequence that each Secretary of State is capable of exercising any of the functions of the departments that make up the office (other than functions conferred on a named Secretary of State)." [14]Because there were no settled principles as to the division of powers between Cardiff and Whitehall, it was therefore not possible to say that the Secretary of State for Wales had responsibility for any subject area as a whole. In many cases, for example, education, transport, health and the environment, ministerial powers were exercised by and between different Secretaries of State in relation to Wales, sometimes solely, sometimes together and sometimes in consultation. None of this distribution of competencies was recorded save in agriculture, occasioned by the statutory appointment of a separate Minister. These competencies were often set out in detailed Transfer of Functions orders made under the Ministers of the Crown Acts 1964 and 1975. What executive devolution has required is the explicit recognition in legislation of the entire division of functions between Whitehall and Cardiff. Their explication is to be found, first, in the Transfer of Functions Order 1999. [15]

  This transfers powers to the Assembly by listing every relevant Act of Parliament, not by subject area, but by regnal year. In two thirds of the Acts listed, only some powers are transferred. Sometimes exceptions are expressed verbally and not numerically. A considerable number of powers can only be exercised by the Assembly with the consent of, or after consultation with, a central government Minister; sometimes the Minister can exercise a power concurrently with the Assembly. Apart from a specific reference to 51 statutory instruments, the 1999 Order does not attempt to set out the distribution of ministerial and Assembly functions in the subordinate legislation made under the Acts that it lists. Instead, the Order contains a general provision to the effect that ministerial powers in the subordinate legislation are transferred to the Assembly to the same extent as the enabling powers under which that legislation is made. Much of the subordinate legislation is made under Acts where only certain powers are exercisable by the Assembly. It will be plain that the exact identification of the powers contained in this subordinate legislation which are exercisable by the Assembly is, as it is with their identification in the primary legislation listed in the 1999 Order, a time-consuming and complex task. [16]

2.3  Primary legislation

  The initial Transfer of Functions Orders have gradually been superseded by primary legislation as the means by which functions are transferred to the Assembly, [17]but with no major difference in approach. Keith Patchett, for example, notes: "considerable additional powers have been given by legislation enacted since the Government of Wales Act came into force. These have shown little consistency in the ways they have been conferred, particularly those that were worked on before the Assembly was fully operational." [18]Diffusion is evident, for example, in the Education Act 2002. It is necessary to read each section in order to ascertain whether it gives a power to the Assembly or to the Secretary of State to exercise both for England and for Wales. There is no general provision in a composite section in the Act which sets out in one reference the powers which are exercisable by the Assembly. [19]The accretion of its powers continues to be by discrete allocation, with no overall attempt being made to simplify their structure.

3.  REMEDIES

  Leaving aside the major political question, should the National Assembly be given primary legislative powers, [20]two remedies to a clearer understanding of the Assembly's legislative competence may be identified. The first is longer term, and is also a political issue: the arrangements for the Assembly's engagement with Whitehall and Westminster as to the content of Bills. The second already exists, and is the core reason for this note.

3.1  Engaging with Whitehall and Westminster

  "It is scarcely surprising that in the first years of the National Assembly for Wales its working relations with Westminster and Whitehall have not always been straightforward." [21]As with Scotland and Northern Ireland, these relations are in important respects governed by the non-binding Memoranda of Understanding, concordats and Devolution Guidance Notes. [22]Space does not permit an extensive consideration of these complex and highly significant constitutional documents; [23]for present purposes, it is sufficient to note that they deal with such key matters as the selection of Welsh-related Bills in the legislative programme, consideration of policy options for Bills affecting the Assembly, the implementation of that policy in the Bill, and alterations during its parliamentary stages.

  In all of these respects, the view in Cardiff is one of varying degrees of disappointment. [24]Of the four requests which the Assembly made via the Secretary of State (who has a statutory duty under section 31 of GOWA to consult the Assembly about the Government's legislative programme and responsibility under the Guidance Notes to negotiate a place for them on the programme) for Wales-only Bills in the 2000-01 Parliament, one was enacted. [25]The UK government consults the Assembly but is not bound to accept its views. Because of the government's requirements for confidentiality in agreeing the Queen's Speech, that consultation is confined to the Assembly Cabinet; in the event, much turns on the Secretary of State's receptivity to the Cabinet's concerns, and his willingness to engage Whitehall departments on its behalf. On the preparation of a Bill affecting Wales, paragraph B5 of the Wales Office Concordat provides that Parliamentary Counsel will not accept instructions directly from the Assembly, and it is a matter for the lead department whether an Assembly official is included in the Bill team. [26]Of measures enacted in 2002, Patchett concludes that in the allocation of additional powers, "clarity in distinguishing the Assembly's powers has in a number of cases given way to the overall structural demands of the legislative scheme." [27]It is against this background that the Assembly's Review of Procedure Group, which reported in February 2002, recommended adoption of measures enabling it to influence Westminster primary legislation more effectively. Amongst his other suggestions, it also adopted Rick Rawlings' recommendation that agreement should be reached with central government for the acquisition by the Assembly of any and all new powers in a Bill where these relate to its existing responsibilities. [28]It remains to be seen what view the Lords Select Committee on the Constitution, which, at the time of writing, had taken evidence in Cardiff in pursuit of its enquiry, Devolution: inter-institutional relations in the United Kingdom, will take of these matters. [29]

3.2  Wales Legislation on-line

  It was apparent to the authors (and to many others, not least in the legal profession and the Assembly), that with the coming into force of the first Transfer of Functions Order in 1999, a structured analysis would need to be undertaken of its provisions, in turn to be applied to transfers made under subsequent primary legislation, if a clear statement of the exact powers exercisable by the Assembly were to be publicly accessible. The "fields" framework of Schedule 2 to GOWA, together with the nature of the general subordinate legislation which the Assembly started to make in the latter part of 1999, indicated that it was necessary to construct the analysis by reference to the powers which the Assembly was in practice using. This indication became more persuasive as the results of the exercise of its powers became evident; in essence, subordinate legislation in Wales and England differs to the extent that the Assembly has powers to make it. Post-devolution legislation for which the Assembly is given commencement powers is coming into force at different times in Wales and in England; also, the contents and the timing of subordinate legislation can be quite different. Whereas only a very few of the first 200 statutory instruments made by NAW differed in substance from their English equivalents, of the 230 enacted in 2001, some 35 per cent were "either unique to Wales or, where they paralleled similar legislation passed in England, involved significant differences in drafting reflecting Welsh circumstances." [30]

  In March 2002 Cardiff Law School launched a new website, Wales Legislation on-line: www.wales-legislation.org.uk. Substantially funded by a grant from the Arts and Humanities Research Board, the website precisely identifies the Assembly's powers using the 18 GOWA fields as the analytical framework.

The analysis differentiates:

    —  powers which the Assembly exercises exclusively in Wales;

    —  powers which it can only exercise subject to some central government involvement; and

    —  powers which are only exercisable by central government in Wales.

  General statutory instruments are classified by reference both to:

    —  the enabling powers under which the legislation is made; and

    —  whether it was the Assembly or central government which made the legislation.

  Work is proceeding on the analysis of the Assembly's powers transferred by general subordinate legislation made prior to May 1999 under the enactments listed in the first Transfer of Functions Order. The website is updated weekly and is the only known source of information which sets out in one comprehensive source the Assembly's current powers and the general subordinate legislation which it is making. It is free to any user, from whom the team would be pleased to receive comments on how it may be improved.

David Miers and David Lambert[31]

27 September 2002


1   Devolution: A Process not an Event (Institute of Welsh Affairs, 1999). Back

2   Devolution: the View from Whitehall and Torfaen (Welsh Governance Centre, Cardiff University, 2002). Back

3   W. Roddick QC, Counsel General, National Assembly for Wales, Crossing the Road (Law Society of Wales, 1999). On the Act and some background, see K Patchett, "The New Welsh Constitution: the Government of Wales Act 1998" in J B Jones and J Osmond (eds), The Road to the National Assembly for Wales (Institute of Welsh Affairs, 2000), 229-264; D Miers (ed), Devolution in Wales: Public Law and the National Assembly (Wales Public law and Human Rights Association, 1999); L McAllister, "The Road to Cardiff Bay: the Process of Establishing the National Assembly for Wales" (1999) 52 Parliamentary Affairs 634-648. Back

4   J Osmond, "The Enigma of the Corporate Body" in J B Jones and J Osmond (eds), Inclusive Government and Party Management (Institute of Welsh Affairs, 2001), 1-23; R Rawlings, "The New Model Wales" (1998) 25 J L S 461-509. Back

5   J Osmond, "Emergence of the Assembly Government" in in J B Jones and J Osmond (eds), Building a Civic Culture (Institute of Welsh Affairs, 2002), xvii. Back

6   NAW's civil service was not devolved; its civil servants remain within the Home Civil Service. Reflecting its corporate status, NAW's Permanent Secretary is responsible for both its legislative and executive functions. See M Laffin, "The Engine Room" in Jones and Osmond (eds), Building a Civic Culture, op cit, 33-55. The Assembly Review of Procedure (2002) recommended rejection of the Assembly's corporate status. Following its report, the First Minister, Rhodri Morgan, announced In April 2002 the establishment of an independent Commission to review the Assembly's powers and electoral arrangements. It is chaired by Lord Richard and commenced work in July 2002. See the National Assembly website, www.wales.gov.uk. Back

7   The modified configuration and associated functions have their origins in two internal reviews; National Assembly for Wales, Arrangements for Making the Office of the Presiding Officer More Independent (2000), and Assembly Review of Procedure, op cit Lord Elis-Thomas, A New Constitution for Wales? (Welsh Governance Centre, Cardiff University, 2000); R Rawlings, Towards a Parliament-Three Faces of the National Assembly for Wales (University of Wales, Swansea, 2002). Back

8   See National Assembly, Assembly Review of Procedure, op cit, and R Hazell, The Dilemmas of Devolution: Does Wales Have an Answer to the English Question? (Welsh Governance Centre, Cardiff University, 2001). Back

9   See generally, v Bogdanor, "Devolution and the British Constitution" in D Butler, v Bogdanor and R Summers (eds), The Law, Politics and the Constitution (Oxford University Press, 1999); N Burrows, Devolution (Sweet and Maxwell, 2000); R Hazell (ed), The State and the Nations (The Constitution Unit, 2000); A Trench (ed), The State of the Nations 2001 (The Constitution Unit, 2001); S Henig (ed), Modernising Britain: Central, Devolved, Federal? (The Federal Trust, 2002); J Hopkins, Devolution in Context: Regional, Federal and Devolved Government in the European Union (Cavendish, 2002). Back

10   The procedures governing the making of Assembly subordinate legislation are both novel and complex, designed to promote inclusivity and transparency. The Standing Orders governing the Legislation Committee have undergone substantial reform; see J Williams, "The Assembly as a Legislature", in Jones and Osmond, Building a Civic Culture, op cit, 1-16, pp 7-11. Back

11   The UK Parliament retains the power to make laws for Scotland on devolved matters. See A Page and A Batey, "Scotland's Other Parliament: Westminster Legislation on Devolved Matters since Devolution." [2002] Public Law 501-523. Back

12   The general obligation to provide bilingual texts of official documents is unique within the United Kingdom devolution settlement. Section 122 of GOWA provides that in the interpretation of Assembly legislation, the English and Welsh texts "shall be treated for all purposes as being of equal standing." Back

13   J Williams, "The Assembly as a Legislature", in Jones and Osmond, Building a Civic Culture, op cit, 1-16, p 8. Back

14   T Daintith and A Page, The Executive in the Constitution (Oxford University Press, 1999), p 33. Back

15   The National Assembly for Wales (Transfer of Functions) Order 1999 SI 1999/672. Back

16   For a detailed account of these difficulties, see D Lambert, "Legal Wales: Its Past, Its Future" (2001) 1 Welsh Legal Historical Society 167-181. Back

17   The National Assembly for Wales (Transfer of Functions) Orders 2000 SI 2000/253, 2000 SI 2000/1829; 2000 SI 2000/1830; 2001 SI 2001/3679. The transfers operate in both directions: SI 2000/1812 transferred functions back to MAFF. Back

18   K Patchett, "The Central Relationship: the Assembly's engagement with Westminster and Whitehall", in Jones and Osmond, Building a Civic Culture, op cit, 17-29, 25. Back

19   By contrast, see the Learning and Skills Act 2000 whose Part and section headings give clear indication of their application to Wales. Back

20   National Assembly for Wales, Assembly Review of Procedure, op cit; R Rawlings, "Quasi-Legislative Devolution: Powers and Principles" (2001) 52 NILQ. 54-81. Back

21   Patchett, in Jones and Osmond, Building a Civic Culture, op cit, 17-29, 17. See also M Laffin, A Thomas and A Webb, "Intergovernmental Relations after Devolution: the National Assembly for Wales" (2000) 71 Political Q 223-233. Back

22   Memorandum of Understanding, Cm 5240 (2001); Concordat between the Assembly Cabinet and the Wales Office (9 January 2001), and Cabinet Office, Devolution Guidance Notes 1, 4 and 9. All are available on the Assembly's website, op citBack

23   See further, R Rawlings, "Concordats of the Constitution" (2000) 116 LQR 257-286. Back

24   See Assembly Review of Procedure, op cit, and commentary by Patchett, in Jones and Osmond, Building a Civic Culture, op cit, and J Williams, "The Legislative Process" in Nations and Regions: The Dynamics of Devolution (Constitution Unit, Quarterly Monitoring Report, February 2002), pp 32-38. Back

25   Children's Commissioner for Wales Act 2001; see K Hollingsworth and G Douglas, "Creating a children's champion for Wales?" (2002) 65 MLR 58-78. NAW has proposed eight measures for 2002-03; J Williams, "The Legislative Process" in Nations and Regions: The Dynamics of Devolution (Constitution Unit, Quarterly Monitoring Report, May 2002), pp 31-34. Back

26   There is as yet no consistent pattern. Reviewing the immediate post-devolution measures, Patchett in Jones and Osmond, Building a Civic Culture, op cit, p 22 notes that such participation "appears not to have occurred." On the other hand, officials from the Office of Counsel General in the Welsh Assembly Government did contribute to the draft NHS (Wales) Bill, which was published in May 2002 in accordance with the pre-legislative scrutiny arrangements of the Commons' modernisation programme, and to the Education Act 2002. Back

27   Patchett, idBack

28   R Rawlings, "Quasi-Legislative Devolution: Powers and Principles", op cit. Back

29   House of Lords, Select Committee on the Constitution, Devolution: inter-institutional relations in the United Kingdom (2001-02). See also the earlier enquiries by the Commons Procedure Committee, The Procedural Consequences of Devolution (1998-99; HC 185) into the impact of devolution on Westminster-devolved bodies, and by the Welsh Affairs Select Committee, The Work of the Committee Since Devolution (2000-01; HC 81). Back

30   W Roddick, QC, the Counsel General, quoted in Williams, "The Legislative Process" in Nations and Regions: The Dynamics of Devolution (Constitution Unit, Quarterly Monitoring Report, May 2002), p 34. Back

31   Respectively, Professor of Law, Cardiff Law School, and Legal Advisor to the Presiding Office of the National Assembly for Wales. We are grateful to Marie Navarro and Keith Patchett for their comments on an earlier draft. Back


 
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