Written evidence from Emyr Lewis, Partner
in Morgan Cole Solicitors, Cardiff
1. Devolution of law-making powers to the Assembly
under schedule 5 has been, as many commentators have noted, inconsistent
and haphazard.
2. For instance, there is a notable contrast
between fields such as education or social welfare on the one
hand, and health on the other.
3. In the fields of education and social welfare,
there has been substantial and orderly devolution of powers in
some areas which would enable the Assembly to legislate in a mature
and targeted manner, using the powers purposefully when the need
arises.
4. In the field of health, only two focused
areas (redress and aspects of mental health) have been devolved,
despite substantial executive devolution to the Welsh Ministers
to reform the health service in Wales. In this case, the danger
of creating a democratic deficit is clear.
5. In other cases, the need to reach political
compromises both within and between London and Cardiff has given
rise to very complex constraints on and exceptions to the powers
of the Assembly to make laws in certain fields, notably the Welsh
language and housing.
6. If the Assembly Act provisions come into
force, so that the Assembly gets the broader powers contained
in schedule 7, then one beneficial effect will be to start to
iron out these inconsistencies and to remove these constraints.
7. The draft Order amending Schedule 7 of the
Government of Wales Act 2006 is to be welcomed, because it responds
in a constructive way to the growth of certain fields over time.
Paragraph 7.1 of the Explanatory Memorandum states:
This instrument amends Schedule 7 in order to
reflect legislative competence which has been conferred on the
Assembly under the current arrangements and certain exceptions
and restrictions which have been applied to that competence, since
Schedule 7 was last updated in 2007.
8. From this, the informing principle seems
to be that, where the Assembly has already acquired powers to
make laws which are broader than Schedule 7, these are kept. This
is a very important principle, since it would be totally anomalous
if the effect of implementing Schedule 7 were to be to remove
law-making powers from the Assembly which Parliament had already
decided should be devolved.
9. This paragraph also makes it clear that the
draft Order reflects only certain exceptions and restrictions.
Again this is sensible, since the exceptions to and restrictions
on current law-making powers reflect not only areas which might
properly be regarded as reserved matters (and therefore should
be reflected in Schedule 7), but also reflect the piecemeal way
and diverse processes by which the current powers have reached
the statute book.
10. One aspect which needs attention is the
exceptions in Schedule 7. Unlike Schedule 5 exceptions, these
apply across subjects, so that an exception to Health will apply
also to Education. This could lead to unintended loss of legislative
competence.
11. For instance, under Schedule 5, matter 20.1,
the Assembly has the power to legislate in relation to facilitating
and promoting the use of the Welsh language. On the face of it,
that must include use of the language in broadcasting. There is
a specific exception in matter 20.1, which states: "This
matter does not include imposing duties about broadcasting",
but other types of provision about broadcasting could be made,
for instance by giving the Welsh Ministers powers (but not a duty)
to fund or assist Welsh-language broadcasting.
12. One can also foresee circumstances relating
to other currently-devolved matters, where the power to legislate
in relation to broadcasting might be relevant (for instance education),
and where it is not currently excluded.
13. Schedule 7, however, excludes broadcasting
from subject 3, which contains the power to make laws about culture.
This exception extends, therefore, to the whole of Schedule 7,
so would remove the existing powers.
14. I have not analysed each current power under
Schedule 5 against each current (or envisaged) exception under
Schedule 7, so I cannot say to what extent the issue identified
here is extensive. Nevertheless, assuming that it is agreed that
Schedule 7 should not remove from the Assembly law-making powers
which Parliament has already devolved, I would recommend that
a saving provision be included so as to preserve the extent of
the current law-making powers. This should be done by including
a further amendment to Schedule 7. One option would be to state:
No exception from any Subject shall have effect to the extent
that it would prevent the Assembly from making a provision in
an Assembly Act which it could have made in an Assembly Measure
under its legislative competence as it was before the Assembly
Act Provisions came into force.
14 November 2010
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