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A SOLICITOR'S PERSPECTIVE ON PROBLEMS WITH
CURRENT LEGISLATION AND POLICY MAKING IN WESTMINSTER
AND CARDIFF
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Introduction
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| The National Assembly for Wales is a body
democratically elected by the people of Wales that makes
and implements policies which are suitable for Wales.
It has, essentially, two tools for doing this, money and
law-making. It can, and has, used the money available
to it in order to meet the special needs of Wales, for
example in the fields of training, economic development
and the Welsh language. The only practical (as opposed
to legal) constraint is the size of its budget.
Its ability to use its law-making powers is constrained
by the extent of those powers. Some of the policies
it wants to implement will need laws which it cannot make,
because it does not have the power. It must then
turn to Westminster to make those laws for it. |
1
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The drafting of primary legislation for Wales
and the treatment of Wales in primary legislation
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The piecemeal laws and law-making powers
which the Assembly has inherited belong to a context where
there was minimal democratic scrutiny of their exercise
(particularly where the Parliamentary negative resolution
procedure was used). That the new context, of a
democratically elected executive body, required a new
approach was recognised perhaps most significantly by
the then Secretary of State for Wales, Paul Murphy.
In his address to the Assembly last year, he said: |
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"In many cases, it may be most
effective to give the Assembly permissive secondary legislative
powers to enable it to act in a way that is right for
Wales within a broad framework of primary legislation"
2. |
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It is probably too early to say whether
this approach is the shape for things to come, and to
generalise from what has happened so far. It is
worthwhile, however, considering two examples which illustrate
different aspects of the current state of play: |
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Health Reforms 3 |
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The NHS (Wales) Plan set out the Assembly's
policy for the reform of the NHS in Wales. Two elements
of this policy (the provisions relating to Local Health
Boards and Health and Well-being Strategies) had to be
enacted in the NHS Reform, etc Act 2002 4
The remaining three aims (The reform of Community Health
Councils, the creation of a body to accredit training
of health related professions; and the creation of a
Wales Centre for Health) are to be enacted when the Health
(Wales) Bill receives Royal assent. Consequently,
a Wales-focussed policy is split between two Westminster
Acts, the one covering England and Wales, the other Wales
only 5. |
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The powers under section 4(1) of the Government
of Wales Act 1998 6, were used so as to enable Assembly
officials to work through the Welsh Office to advise and
instruct the Department of Health and Parliamentary Counsel
on the drafting of the bill. |
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The Care Standards Act
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The precedent for Assembly lawyers and civil
servants being closely involved with the passage and drafting
of primary legislation had been set by the provisions
relating to Children's Commissioner under the
Care Standards Act. 7 |
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The less celebrated provisions of this Act
are, however, possible more illustrative of the treatment
of Wales in primary legislation. Section 8 of the
Act places on the Assembly the general duty of encouraging
improvement in the quality of social work services provided
in Wales. The Assembly can make regulations specifying
additional functions which the Assembly may exercise in
connection with social work services. It can only
do this, however, if those functions are ones exercisable
by the National Care Standards Commission in respect of
social work services in England under section 7.
The Commission can only exercise additional functions
if the Secretary of State makes regulations empowering
it to do so. 8
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The consequence of this is that the Assembly
is only empowered to exercise additional functions in
respect of social work services if the Secretary of State
(a member of the Westminster Executive) has already empowered
the Commission (whose remit does not include Wales) by
regulation to do so. Setting aside the interesting
questions of democratic and constitutional principle which
this arrangement poses, there are practical consequences.
The two-stage process (Westminster regulations followed
by Assembly regulations) could of itself cause delay.
Other consequences could be far-reaching. What if
the Assembly, for example, wanted to exercise a certain
(perfectly reasonable) function, but there was no call
in England for the Commission to exercise that function?
The Secretary of State would have to pass regulations
empowering the Commission to exercise these functions
in order to enable the Assembly to confer these powers
on itself. |
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The implications for Assembly of the effect
of primary legislation may not always be so obvious.
A practical example is given by the admirable decision
to enable free admission to the museums and galleries
owned by the National Museums and Galleries of Wales (NMGW),
a policy adopted and implemented in Wales before England.
The problem with the policy is that it meant that
museum projects would be unable to reclaim VAT, and consequently
would cost 17.5% more than previously. In the case of
the new National Waterfront Museum in Swansea, for instance,
this would have meant about an extra £5 million of project
costs, which would return to the UK Exchequer. An
amendment has now been made to the VAT legislation
9 which enables museums and galleries to
be treated like local authorities, and reclaim their VAT.
Unlike local authorities, however, both the body in question
and the individual museum or gallery must be specified
by the Treasury by order, before the benefit of the legislation
can be claimed. For the large English metropolitan
single-site museums and galleries, such as the British
Museum or the National Portrait Gallery, this will pose
little difficulty. Their operations are likely
to be covered by a single initial Treasury order.
NMGW is, however, a multi-site organisation, with a brief
(both by reason of its Royal Charter and by reason of
its Assembly funding) to serve the whole of Wales.
The single initial order is unlikely to be sufficient,
and NMGW will have to return to the Treasury for a further
order or each new project. |
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It is arguable that the next step on from
the words of Paul Murphy quoted above would be a move
toward a more "European" style of legislation,
setting out a framework of broad principles, and allowing
the Assembly a descretion as to how to implement those
principles in Wales. |
2
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Consultation about draft legislation, the
drafting of legislation and the procedures for enactment.
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Given the extent of the obligations in the
Government of Wales Act to consult in advance of passing
legislation, and the extent to which the Assembly has
embraced the internet, it is hardly surprising that there
exist good systems for consultation. |
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As for drafting of Assembly
legislation, there are indeed examples of inconsistencies,
lack of clarity, errors and solecisms. This is,
however, not unusual for legislation of any kind, once
lawyers other than those who drafted it get their hands
on it. The impression is sometimes given that the
drafting skills of Parliamentary Counsel are a black art
which the humble Assembly lawyer would require a lifetime
to master. I hope it is not too iconoclastic to
suggest that the skills are ones that can be learnt by
any competent qualified lawyer, and that positive experiences
(such as the examples quoted above) of Assembly lawyers
collaborating with
Parliamentary Counsel will lead to an increased transfer
of skills to lawyers in Cardiff. |
3
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Finding and understanding the powers devolved;
the accessibility of provisions in primary legislation,
secondary legislation and circulars
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Ascertaining the powers devolved
involves being able to access the Government of Wales
Act, the transfer of Functions Orders, the original legislation
relating to the functions transferred, together with all
amendments and repeals of relevant sections, as well as
all primary legislation (with appeals and amendments)
which has conferred powers directly on the Assembly since
it came into existence. It is also necessary in
many cases to have access to relevant European treaties,
directives and (most frequently) regulations. |
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All of this material is available on the
Internet. Cardiff University's Wales Legislation
On-line project (http://www.wales-legislation.org.uk/)
has started the job of putting the information together
in a Wales-friendly way, by providing an extremely useful
digest of Assembly powers and secondary legislation, set
out by subject area. It does not currently, however,
link in to the texts of either the primary or secondary
legislation. These texts are freely available from
the HMSO website (http://www.wales-legislation.hmso.gov.uk/)
and for a fee with a commentary (but, significantly, not
the Welsh-language versions of Assembly legislation) via
subscriber services such as Butterworths. |
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Perhaps of equal practical importance is
the need for lawyers (particularly those advising public
bodies, businesses and voluntary organisations in Wales)
to understand the policy background, and the administrative
and bureaucratic mechanisms of the Assembly. An
understanding of who is responsible for what can be of
great benefit to clients who need the help or guidance
of the Assembly in what they are doing, or who rely on
Assembly funding. |
4
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The timing of implementation and divergence
from England
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The introduction of the health reforms (see
footnote no.5 above) provides an example of how the ability
of the Assembly to implement its policy in a timely fashion
may be frustrated or hampered by the Westminster legislative
timetable. The example of VAT and museums provides
an example of how an enlightened
Wales-based policy created the practical need for primary
legislative reform before it was needed in England.
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Divergence as a matter of policy has been
comparatively rare. The collaborative drafting by
the Care Councils of all four Home Countries of Registration
Rules for Social Workers under the Care Standards Act
has been an instructive example of how basic principles
can be agreed, while enabling divergence to occur where
that is required. |
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Divergence through inertia has, perhaps,
been more prevalent. In the field of planning, for
instance, the Assembly has not kept pace with changes
in England. Some practitioners view this as not
necessarily being a bad thing, since it enables Wales
to take account of the English experience in this most
sensitive of areas before promulgating its policies.
Others see it as a failure on the part of the Assembly
to use the powers it has in this field as a dynamic part
of achieving its policy objectives. |
5
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The cost of advising in a complex system
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Any lawyer should know the basic law.
Any lawyer advising in or about Wales should understand
the basic legal framework and not charge his or her client
for learning about it. After that, traditionally,
half the battle was getting to know where to find the
law. Once found, the hard work of interpretation
and advising began. The relative accessibility of
the relevant legal texts relating to the Assembly means
that this task is no more costly or difficult than undertaking
the same exercise in respect of any other legislation.
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| 6. |
The contribution of lawyers to policy
making in Westminster and Cardiff |
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The Assembly has, through its executive
agencies, set up ad hoc consultative bodies and working
parties. A recent example of such a body is the
Aerospace Forum established by the WDA to deal with the
opportunities which the Aerospace industry offers the
Welsh economy. Such bodies frequently have lawyers
as members. A close involvement of these bodies
with policy makers and advisers in the Assembly may well
assist in two respects: firstly in making the analytical
and forensic skills of the lawyers available at an early
stage in policy development, and secondly by making the
lawyers themselves better informed about the Assembly
and its policy-making role. |
1
Solicitor admitted in 1984. Partner
in Morgan Cole. The UK's Representative on the
Council of Europe's Committee of Experts
monitoring implementation
by the States Parties of the European Charter for Regional
and Minority Languages. Specialises in
Commercial and Public Law.
Has advised several public bodies in Wales, both before
and after establishment of the Assembly on
the extent of their powers
and on using their powers to achieve their policy goals.
2.
The National Assembly for Wales, The Official Record -
26th June 2001, pages 29 to 30.
3.
I am grateful to my former colleague, Simon McCann of
the Office of the Counsel General for background information
relating to
this legislation and the
procedures adopted. The opinions, views and analysis
are entirely my own.
4. 2002
c.17
5. The reason for
this is the fact that the Assembly's target date for achieving
the health reforms was 31st March 2003. Since the
June 2001 Queen's Speech
only provided for the publication (and not the introduction)
of a Welsh health bill, the Assembly's
deadline would not have
been met. Consequently, the most time critical elements
of the Welsh reforms were introduced into the
England and Wales bill.
6.
1998 c.38
7. 2000
c.14
8.
Section 7(6)
9. VAT Act
1994 (s 33A) added by the Finance Act 2001 s98(2) |
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