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44. Where the Assembly uses its legislative
powers to devise specifically Welsh solutions, the way
in which it does so also goes beyond that anticipated
by Lord Morris. Drawing, no doubt, on his experience
in the Welsh Office during the 1970s he spoke of the
Assembly "amending Westminster SIs". In practice the
Assembly often develops Welsh legislation in parallel
with or even in advance of the corresponding English
legislation. This is particularly so in those areas
where the Assembly has been given, under Acts of Parliament
passed post-devolution, powers to implement, in relation
to Wales, important reforms to the law. Examples exist
in the fields of education, transport, local government
and access to the countryside. In such areas the Assembly
does not merely react to initiatives emanating from
Whitehall, but is required to adopt a pro-active approach
and to develop the necessary secondary legislation in
consultation with relevant bodies in Wales. Its ambitions,
as demonstrated by the impressive body of "made in Wales"
legislation drafted within the OCG, go far beyond merely
amending a precedent set in London.
45. The Assembly makes its statutory
instruments in a way which is unique in the modern history
of the United Kingdom. It is a democratically open process
and, save exceptionally, it is made bilingually. There
are four procedures. Three of them involve scrutiny
of the legislation by the subject committees. This open
and democratic process offers a real opportunity to
influence the content of the Assembly’s legislation
and that of the policies of the Welsh Assembly Government.
There are a number of levers of influence that can be
pressed. There are the statutory ties which were created
by section 115 of the 1998 Act between the Assembly
and business including the consultation processes and
the partnership councils and then there are the AMs,
the ministers, and the subject committees. These levers
are there to be pressed and pressed for the right purpose
at the right time can produce the right results.
The form of Assembly legislation
46. The National Assembly is a new legislature.
It has no history or precedents of its own. There are
plenty of precedents elsewhere in the world from which
it might chose, but none which it is necessary for it
to follow. Largely untrammelled by practices of the
past, it therefore enjoys a greater freedom than more
established legislatures do to take its own course as
to the form of its legislation. I accept, however, that
it would be very unwise if it were to develop its statute
book without reference to experiences elsewhere. Its
aim must be to emulate the best practices and to avoid
poor practices. I say that Wales is largely untrammelled
by established practices because it is not entirely
free from the past or from external influences of which
the EU is the greatest.
47. Dealing first with the past, it is
tending towards adopting the style of the legislation
of the United Kingdom Parliament. The principal reasons
for this are:
- The Assembly inherited its first batch of legislative
drafters from the Welsh Office (which ceased to exist
when the Assembly came into being in 1999). Quite
naturally, their paradigm was Whitehall whose style
was the only style they had known.
- The content of secondary legislation is heavily
influenced by the content of the primary legislation
from which it is derived.
- In its form, there is a tendency to adopt a similar
form to that of the secondary legislation made in
England under the same primary legislation. Consistency
and uniformity are, in my view, too highly regarded.
48. We are therefore seeing Whitehall
practices becoming our own practices and the longer
we allow those practices to take root the more difficult
it will become for Wales to develop its own distinctive
style; one that is the right fit for its own particular
needs. This is not to say that the Whitehall model is
not right for the United Kingdom. I have no doubt that
First Parliamentary Counsel would say that it is a tried
and tested model which is wholly appropriate for the
purpose which it serves. In those claims, I am sure
he would be correct but Wales’ circumstances are
now different from those of the United Kingdom in some
very important respects. I shall return to this point
in a moment.
49. The fact that the Assembly is not
a primary law-maker and is part of two other legislatures,
UK and EU, is a real constraint on the Assembly’s
freedom to choose the form and contents of its legislation.
50. Subject to the points I have just
made, the National Assembly, being at the very early
stages of its life as a legislature, is in a particularly
good position to start off on the right foot in choosing
core drafting objectives which are appropriate to its
own needs and circumstances. What ought those objectives
to be? Those agreed upon by legislatures generally today
are clarity, coherence, effectiveness and accessibility
(see Ireland’s White Paper ‘Towards Better
Regulations’). Clarity in the sense that the statute
or other regulation must be well drafted; coherence
in the sense that it can be easily followed; effective
in the sense that it achieves its objective; accessible
in the sense that if it can be easily located. Core
objectives are an essential part of the quest for better
regulation and I would respectfully agree that "clarity"
and "effectiveness" should be amongst them. I should
like to suggest, however, that in the context of the
need for clarity in the law as opposed to clarity in
a specific instrument of law, the word "ascertainability"
more precisely describes the core objectives of "coherence"
and "accessibility". It is wide enough in its meaning
to embrace both accessibility and coherence but it also
implies certainty of meaning, certainty of meaning that
is not only of the individual instruments but of the
law in relation to the subject matter under consideration.
That law might be spread between a number of instruments
of one kind or another each of which is clear, coherent
and accessible in itself but it is only ascertainable
if the various pieces can be pieced together with ease
and facility and in a way which makes sense of the whole
which, I would argue, is the overriding objective.
51. Although there is broad agreement
as to what the objectives should be, it is unlikely
that all legislatures will work to them in the same
way or to the same effect. I would respectfully agree
with Robert Bergeron QC (Senior Legislation Counsel,
Department of Justice, Canada) that there cannot be
a universal style of drafting. Our circumstances, our
traditions, our histories, our constitutions are very
different. That the legislation of the National Assembly
must be bilingual when it comes to be made, unlike UK
legislation which is monolingual will wield considerable
influence on the form and content of the Assembly’s
legislation. That the three home countries of the United
Kingdom (Northern Ireland, Scotland and Wales) are devolved
rather than federal as in Canada or independent as in
Ireland will also have a marked influence upon the form
and content of the legislation of those three countries.
That Canada is bijural whereas the United Kingdom and
Ireland are not will influence how that nation will
work to these common objectives and the fact that the
UK and Ireland are members of the EU whereas Canada
is not will manifest itself in differences in the form
of the statutes made in those countries.
The European constraints on the drafting
of Assembly legislation
52. EU law has a considerable impact
on the content and style of the law that is made by
the National Assembly for Wales. The purposive approach
to drafting in Community instruments is very different
from the more precise drafting style of the common law
jurisdictions. Also, the process for ensuring "better
regulation" in terms of its content means that there
must be effective engagement with the EU law making
process with member state authorities and EU institutions
having access to proper assessment of community proposals.
Issues abound as to how our own political priorities
can be given effect in an EU framework which sets aside
national laws which are incompatible with Community
law.
53. The Government of Wales Act ‘98
makes any obligation of the UK under Community law an
obligation of the Assembly in so far as such obligations
can be implemented or complied with by the exercise
of Assembly functions. The provenance of a significant
proportion of Assembly legislation is some obligation
or right founded in EU law. In the case of agricultural,
economic development environmental and food safety matters
most, if not all, Assembly legislation and administrative
activity in any year is derived from Community legislation.
The Assembly has wide powers of implementation under
the UK European Communities Act 1972, whereby it can
make legislation to implement Community law for subject
areas or particular Directives, although these powers
depend on it having been designated by Order in Council
– that is, designation is in the gift of the UK
central Government. For example, the Assembly is designated
to make regulations in relation to the common agricultural
policy and the deliberate release of genetically modified
organisms. The Assembly may also use its other domestic
powers to implement Community obligations.
54. Central in this context is the issue
of the drafting approach we should take to the implementation
of EU Directives. The tradition in the UK has been a
"copy out" approach where the detailed European provisions
are reproduced in domestic legal measures. It may be
that a referential approach which gives effect to Directives
in a more straight forward way increases transparency
by making the user of the legislation connect more directly
with the key legal text which in all cases is the relevant
Community instrument.
55. Being part of the EU "club" necessarily
means that national laws and political aspirations can
be overridden by EU law. The most high profile example
of this in Wales is in relation to genetically modified
("GM") crops. The Assembly’s current policy, which
differs from the UK government’s position, is to
apply the most restrictive regime to GM crops that is
possible within the EU framework. The extent to which
EU law limited Assembly aspirations came as a surprise
to the many uninitiated members of the press, public
and political class. The Assembly is required to operate
a risk assessment based approach to the release of each
and every GMO and must accept that authorisation for
marketing at the European level means authorisation
in Wales. Some have misled themselves and others to
believe that the position is otherwise or that it is
vague and ambiguous whereas it is none of these. On
the contrary, it is clear and certain.
56. There has, however, been some success
for the Assembly in this area where it has engaged positively
with the Community system to the full extent of its
powers. The Assembly Ministers were particularly concerned
about the cross-contamination issues surrounding the
release of a particular GM maize which had European
wide approval. The Assembly acted to impose legally
enforceable separation distances which, under the EU
regulatory system, had to be notified to the Commission
and other Member States. A decision at European level
on the Welsh action is still awaited, but regardless
of the outcome of that, the Assembly’s work made
a positive contribution to the wider debate on how GM
crops are to co-exist with conventional and organic
crops.
57. The example of the GMOs is interesting
because although the voting power in regulatory Committee
and Council on these issues remains the responsibility
of HMG, the domestic powers to implement the Directive
on deliberate release are devolved to Wales. This gives
the Assembly scope to raise important issues at the
European level where perhaps the UK Government may not
share the same view or attach lesser importance to it.
58. Welsh devolution has thrown a number
of interesting sidelights on the problem of better European
regulation. One such sidelight relates to the aim of
clarity. A charge frequently levelled at EC legislation
is that it is insufficiently clear. I understand that
this charge comes in particular from the UK and Ireland,
and that many politicians and officials from mainland
Europe riposte that EC legislation is perfectly clear
to them, being more in line with their drafting traditions.
59. A perceived problem of clarity nevertheless
exists at EC level. Imagine then the impact that has
in a country where implementing legislation must be
made in two languages, one of which is an EC official
language and the other – Welsh – is not.
Yet the Welsh version is of equal validity in domestic
terms.
60. Our experience of bilingual legislative
drafting has taught us the benefits it typically brings
in terms of clarity. When you have to express the same
thing in two languages you really have to know what
that thing is. We have had recent experience of a provision
in a piece of EC legislation – a fascinating and
highly significant law controlling the import of peanuts
from China – which was so ambiguous that it appeared
impossible, for some time, to draft the Welsh version
of the implementing legislation. The rogue phrase was
"immediate packs" – which is ambiguous, to say
the least, in English. All the options in Welsh were
just that – options – they opted for one possible
meaning of the phrase or the other. Lawyers in my office
with linguistic skills examined the French, German,
Spanish and Italian versions of the Decision in question.
They did not help. We faced a situation in which the
Welsh version of our legislation would be clear but
the English ambiguous – in which situation a court
in Wales should base its judgment on the Welsh version,
a version which raised problems never considered when
the EC Decision was made.
61. The solution we decided on was to
insert an interpretative provision to the effect that
any term used in the definition of the expression "Chinese
peanuts" – which included the infamous "immediate
packs" – had the same meaning as in the Commission
Decision. Not very helpful to the court, but the only
thing we could do in the circumstances, we felt –
until it transpired that such was the urgency to make
the relevant Order, we had to dispense with a Welsh
version after all and make do with a mere translation
(which is not regarded as equally authentic).
Two perceived problems with regard to
the Statute Book in its application to Wales
62. Two complaints in particular are
levelled at the United Kingdom statute book in its application
to Wales. The first relates to the territorial application
of Bills and Acts to Wales. The gist of the complaint
is that it is difficult to ascertain which provisions
of a Bill or Act affect the National Assembly or otherwise
affects Wales in a way different from the rest of the
jurisdiction (the clarity problem). The gist of the
second complaint is that it is difficult to ascertain
and understand the state of the law in post-devolution
Wales on any particular subject (the ascertainability
problem).
The clarity problem
63. The territorial extent of an Act
of the United Kingdom Parliament is the jurisdiction
to which it applies. The assumption with regard to all
United Kingdom legislation is that its territorial extent
is the United Kingdom (ie England and Wales, Scotland
and Northern Ireland). If the territorial extent differs
from this, the Bill or Act will say so. It has always
been the case that from time to time, Acts have made
different provisions for different areas within a jurisdiction.
These produce differences in territorial application.
Following devolution, such differences have become much
more common as regards England and Wales. Often the
differences result from giving powers and responsibilities
to the National Assembly to do things where in England
similar powers and responsibilities are given to a minister
(see generally, Geoffrey Bowman, First Parliamentary
Counsel, in his evidence to the Welsh Affairs Committee,
November 2002).
64. It is a widely held view in Wales
that the territorial application of Bills and Acts is
not made clear enough and consequently it is difficult
to ascertain the effects of the Bill or Act on Wales
and the National Assembly.
65. Personally, I find it difficult to
measure this particular problem because I am not altogether
persuaded that it exists. I have not seen it demonstrated.
I have never experienced it myself nor has any other
lawyer in OCG experienced it. This is a fairly reliable
indication that either the problem does not exist or
that the extent of it is nowhere near as it is represented
to be.
66. Assuming, contrary to the evidence,
that it is a problem, what is the solution? The solution
most often pressed in argument is to group together
the provisions applicable to Wales in a separate part
of each Bill. The Bill should deal with all the English
provisions together and all the Welsh provisions together
irrespective of subject-matter.
67. I would very much agree with the
views of Geoffrey Bowman that grouping together the
provisions applicable to Wales would be a novel and
unstructured approach to the making of legislation.
It would be wasteful to set out the provisions for England
and then replicate them for Wales. It would produce
a distorted picture. What really matters is the subject
matter of the legislation not that it happens to be
English or Welsh. The central consideration is whether
the legislation which is produced is the best legislation
which can be produced in the circumstances in which
the particular Act comes to be made. I doubt that the
grouping together of the Welsh provisions in a separate
part of the Bill would produce better legislation save
in those cases where the Bill makes significantly different
provisions for England and Wales. Others have argued
that the Bill or Act should include information or explanatory
provisions explaining how or where Wales is dealt with.
That solution would be to risk clarity and might also
mislead the consumer (for instance, if a late amendment
of the Bill is accidentally omitted from the explanatory
provisions).
Explanatory notes
68. As a result of discussions between
the Office of Parliamentary Counsel of the United Kingdom
Government and my office it has been agreed that the
effect of a Bill on Wales will henceforth be set out
in explanatory notes. Generally, they are not part of
the Bill or the Act, but they will help the reader understand
the way in which Wales is effected. This is a welcome
step which does not threaten the clarity of the Bill
or Act.
The ascertainability problem
69. This is the problem of ascertaining
the state of the law on a particular subject at a particular
date. Potentially, it is much more serious a problem
than that of ascertaining from a single Act how, if
at all, it applies to Wales. I do not believe that it
is a real problem as yet but it is beginning to emerge
and I am sure it will become a serious one unless steps
are put in place immediately to deal with it. It arises
out of the nature of the devolution settlement and,
in particular, out of the process by which the Assembly
acquires its powers.
70. That process begins with the identification
in the ‘98 Act of the fields of responsibilities
but not the powers from which functions may be transferred
to the Assembly. Although the Act identifies no less
than eighteen fields from which responsibilities might
be transferred in the first transfer of functions order
it does not devolve all responsibilities in any field.
For example, not all responsibilities for agriculture
or health in Wales have been devolved.
71. The first transfer of functions order
transferred a very substantial number of functions.
Since then, further slices of powers in those fields
have been transferred by transfer of functions orders
and primary legislation. There will be more, I am sure.
What the Assembly, therefore, has is a collection of
powers given to it piecemeal in a number of Acts and
transfer of functions orders. This process of accretion
whereby the Assembly’s powers grow by gradual additions
occurs through Acts or orders which might at the same
time take back, modify or repeal powers transferred
in earlier orders and Acts. In addition to and lying
on top, so to speak, of these "slices" of powers conferred
in the manner I have just described will be the secondary
legislation made by the Assembly in exercise of those
powers. To ascertain the law on any subject as at a
particular date, it is necessary to work through all
these slices of legislation.
72. It would not be correct to conclude
that the devolution settlement is the sole cause of
the problem I have described. It was present in quite
severe form in the UK long before 1998 but the devolution
settlement has the potential to make the situation much
worse in Wales.
73. Three questions of particular importance
to the public, politicians, lawyers and Assembly officials
are what are the Assembly’s powers on the matter
to which the question relates; which of those powers
has the Assembly exercised; to what effect has it exercised
those powers? These are questions of considerable importance.
They have a constitutional significance. The Assembly
and especially those advising it need to know with some
measure of certainty what its powers are and the public
needs to know what the law is. Access to the law is
a basic right. If it is so unreasonably difficult to
ascertain what it is the validity of the law itself
becomes questionable.
What is the solution?
74. It is not a problem which can be
removed by making separate provisions for Wales in Bills
and Acts nor by explanatory notes. Understanding how
individual Acts of Parliament affect Wales and the Assembly
is not the problem. Ascertaining the state of the law
in a particular field on a particular date involves
not just one Act of Parliament; it involves the whole
statute book, all Acts and all instruments in exercise
of the Assembly’s powers.
Consolidation
75. I do not believe consolidation can
be an answer in the circumstances in which the Assembly
finds itself. The state of the Assembly’s powers
are far too fluid to contemplate consolidation which
requires a fairly settled state of the law. The Assembly’s
powers are almost certain to grow, I would think. I
emphasis "I would think" because I need to keep a clear
boundary between myself and matters of policy. I accept,
without question, that the latter is essentially for
ministers but it is pertinent to note that during the
last two months the House of Lords Select Committee
on the Constitution and the Welsh Affairs Committee
of the House of Commons have conducted separate inquires
into the procedures and powers of the Assembly. Then
there is your Commission which is also conducting an
inquiry into the adequacy of the Assembly’s powers.
Each of these bodies is likely to draw conclusions about
the Assembly’s powers and their efficacy. Your
terms of reference include the making of recommendations
for change. Also supporting the conclusion that further
changes are likely and, therefore, that the Statutes
Book in Wales is not in a settled state is the fact
that each time there is a new Act relating to England
and Wales, the question is bound to be asked –
how is this to impact on the Assembly and its powers.
76. On this evidence, I would think that
it is a very good bet even for an official to make that
the Assembly’s powers are and will continue for
some considerable time to be in an expansive phase.
I am sufficiently sure of this to conclude that consolidation
is probably out of the question as a solution to the
problem I am describing. There is another reason why
I do not consider consolidation to be the answer. The
object is not only to ascertain what powers have been
given to the Assembly but also to ascertain which of
those powers it has exercised.
77. What then is the solution? In my
judgement the measure which is most appropriate for
Wales at this stage is an electronic index on a subject
by subject basis of the Assembly’s powers and of
the powers it has exercised and, if possible, the instruments
by which those powers were exercised. We are presently
scoping the work and when that is completed it is proposed
that a project board be set up to take it forward. Such
an index could provide the Assembly and the public with
a source of information which is constantly updated.
Without such an index, a knowledge and understanding
of the law in Wales is likely to prove elusive.
Evidence - Part II
In this section of my evidence I deal
with the matters you have asked me to deal with and
with some additional matters raised by other witnesses.
The corporate nature of the Assembly
78. Can it now be assumed that the Assembly
has evolved out of its corporate shell? The relevance
of the question is obvious. If it has, there would be
no need for primary legislation to change its structure
into that of a parliament.
79. Being responsible for having introduced
the words "de jure" and "de facto" into the Assembly’s
vocabulary, I think I have an understanding of the sense
in which the Assembly has evolved in its working practices.
In my opinion, the Assembly has to all practical intents
and purposes evolved out of its corporate shell. I emphasise
"practical" because section 1 of the Government of Wales
Act 1998 remains on the statute book and whilst it does
the answer to the question, in the eyes of the law at
least, is that the Assembly is as much a corporate body
today as it was when it came into being. Whether decisions
are taken in Crickhowell House or in Cathays Park, they
are the decisions of the National Assembly for Wales
and it is that name which would appear as defendant
or respondent in any legal proceedings brought to challenge
those decisions or to any complaint of mal-administration
or misfeasance in public office. Proceedings alleging
the latter might also be brought against the individual
holder of an office if he/she were thought to be personally
involved in taking a decision known to be ultra vires
or otherwise unlawful. The Assembly cannot be liable
to prosecution (section 1(3) GOWA) for the corresponding
criminal offences but individual office holders are
so liable.
80. In addition to those reasons why
the corporate nature of the Assembly is still very real,
there are a number of other equally important reasons
why it must continue to operate corporately. Whilst
a number of its functions have been delegated to ministers
a number of them remain exercisable only by the Assembly.
These non delegable functions include salaries; pensions;
polls; making subordinate legislation and standing orders;
audit committee; auditors; voluntary organisations;
sustainable development; Schedule II paras. 1(4), 4(7),
and 7.
81. Certain important consequences flow
from the fact that the Assembly continues to be a corporate
body –
- Every decision, act or omission of the Assembly
whether under delegated authority or not has the potential
to incur liability on the part of the corporate body.
- The Permanent Secretary and the Counsel General,
as accounting officer and legal adviser respectively
to the corporate body, have a very real interest in
and a very real responsibility for its decisions,
no matter where or by whom they are taken. They, as
well as the Assembly, fall within the ambit of the
tort of misfeasance in public office and the corresponding
criminal offence.
- There being only one interest, the corporate interest,
that is the interest which they are duty bound to
serve.
- The notion that there is a conflict of interest
which precludes them from performing this duty or
renders it undesirable that they should seek to do
so is misconceived. There can only be one Permanent
Secretary, Principal Accounting Officer and one source
of authoritative legal advice. Conflicts of duty arise
only when the adviser acts in a representative capacity
and then only when representing different or competing
interests. The Counsel General does not REPRESENT
any element within the Assembly when giving advice.
For example, he does not represent the First Minister
when called on to give him advice or the Permanent
Secretary when called on to advise him.
82. The corporate nature of the Assembly
is not the problem some witnesses perceived it to be.
There is a great deal of flexibility within this settlement.
Were it otherwise, the officials and the politicians
could not have shaped it as they have in such a short
period of time. That does not mean to say that the settlement
has enduring qualities and that is a matter to which
I should like to turn to next.
83. In my view, the question of whether
the settlement does or does not have enduring quality
is one of central importance in any discussion as to
its future. If it does not, its demise is certain and
its replacement by some very different settlement is
probably inevitable, I would think, and, in those circumstances,
any perceived uncertainties in its existing powers would
not be of the greatest importance. I emphasise the words
"I would think" because I acknowledge that these are
matters of policy and therefore for ministers not officials.
84. To place a legislature and an executive
within the same corporate shell was to place too heavy
a strain on the settlement. Having created a corporate
body which was intended to function as a parliament
it was inevitable in my view that the strains which
occurred would occur. If I might respectfully suggest,
the officials and the politicians have addressed this
in a pragmatic way. What now obtains is probably as
good a solution as the circumstances will permit; to
go further would require primary legislation.
85. The legislature and the executive
have been living apart for more than three years. They
remain married but only legally. So far apart have they
grown, they have taken different names and different
identities. If they were human beings the law would
permit them to divorce and thereby formalise the separation.
If the legislature and the executive were to separate,
it would simply take the existing factual position to
its logical conclusion.
86. The other reason why the present
settlement does not have an enduring quality is that
it depends on the arbitrary difference between primary
and secondary legislation or, more particularly, on
what parliament decides, on a measure by measure basis,
shall be provided through primary legislation and what
through secondary legislation.
Can the Assembly acquire the capacity
to make primary legislation within a reasonable time
87. If there is a constitutional case
for devolving authority to make primary legislation,
the National Assembly for Wales must acquire that capacity
to enable that to be done. The interval between the
making of a recommendation that the Assembly should
have primary legislative powers and the date on which
the recommendation is to be carried into effect is likely
to be sufficient to enable OCG to develop or acquire
that capacity. I would respectfully agree with the Permanent
Secretary that "compared with the changes that have
already taken place, the acquisition of further powers,
including those of primary legislation, would represent
a manageable progression not a major step change, in
terms of demand upon most staff … . Policy officials
and the Office of the Counsel General already undertake
all the work needed to instruct Counsel on Assembly
legislation. So the additional work should be confined
to the drafting of making the legislation itself …".
88. I am quite confident that given reasonable
notice, the Assembly could produce high quality primary
legislation. The responsibility will lie not just in
OCG but will require team work between legislation and
policy colleagues. In this process OCG will have two
main roles.
The preparation of instructions to the
draftsman
89. This is an area in which OCG is already
acquiring significant experience because of our input
into Whitehall-led legislation.
The drafting of the primary legislation
90. If the Assembly is to produce primary
legislation, OCG may be invited to provide the legislative
competence. I have already commenced discussions with
First Parliamentary Counsel as to the methods whereby
this may be achieved and I am aware that a long training
period will be involved. The Office of the Parliamentary
Counsel itself was not established until 1869 and it
began with one single draftsman. Our position is not
dissimilar save that we have the Office of the Parliamentary
Counsel to emulate. The most likely, and not too difficult,
course is to engage one senior draftsman with Whitehall
experience and one junior draftsman to act as the nucleus
of a drafting team. It is also possible to supplement
that team with drafters from the commonwealth and it
is also possible to place OCG lawyers within the Parliamentary
Counsel’s office for training. In addition to all
this there are a number of firms of parliamentary agents
which specialise in the production of legislation and
the Assembly could procure their services.
91. Prior to devolution, there was considerable
uncertainty as to the resources which would be required
by the Assembly. This is as true of legal requirements
as other aspects of the Assembly’s business. The
Assembly was not fully equipped to operate as at 1st
July 1999. The parallels with future requisition of
new powers are clear. The Assembly may not be fully
equipped but with determination, flexibility and ingenuity,
the Assembly has already demonstrated how much it can
achieve and I would therefore strongly rebut any suggestion
that OCG will not be in a position to play its part
in assisting the Assembly in the delivery of primary
legislation. I have every confidence that it will.
Is there significant uncertainty as
to the Assembly’s functions under the TFO or any
other instrument by which the Assembly has received
its powers?
92. A number of witnesses have given
evidence to the effect that the settlement is unusually
complex and that the powers of the Assembly are ambiguous,
vague or uncertain or all of those things. If all those
opinions are sound then the Assembly lawyers have been
working in a legal minefield since May 1999.
93. I do not believe there is unusual
complexity or uncertainty. If there is it arises out
of the nature of the settlement rather than from the
drafting of the Government of Wales Act 1998 and from
instruments drafted in Whitehall rather than here at
the Assembly.
94. As I say, I do not believe that there
is unusual uncertainty as to the powers of the Assembly.
Indeed, the evidence is to the contrary. There have
been remarkably few legal challenges to the decision
of the Assembly and the lawyers in OCG have not experienced
significant difficulty in interpreting and applying
the Assembly’s powers to the situations which called
for their application. I looked recently at the number
and nature of judicial challenges to the Assembly’s
decisions and compared those statistics with the four
years immediately preceding the establishment of the
Assembly. The figures were provided to me by the Assembly
law librarian based on Lexus-Nexus database. They show
that in the four years preceding the Assembly, 43 actions
were brought against the Secretary of State for Wales
in respect of decisions made by the Welsh Office and
20 cases were brought against county councils in Wales
during the same period. For the four years commencing
with the Assembly, 15 actions were issued against the
Assembly and 49 cases against county councils in Wales
during the same period. Of the 15 proceedings issued
against the Assembly, 11 were appeals or challenges
to planning decisions (which are decisions of planning
inspectors). That leaves four cases since late 1999
involving decisions of the Assembly itself. Of that
four, one involved a decision made in October 1999 and
did not involve any post-devolution legislation. Another
was an unsuccessful challenge to the Assembly’s
policy of culling sheep during the foot and mouth epidemic
of last year and one did not involve Assembly legislation
or the transfer of functions order. That then leaves
only one case, namely R (on the application of S Wales
Sea Fisheries Committee) v NAW. This was a successful
challenge to a post-devolution order made by the Assembly.
For the sake of completeness, according to the same
source (Lexus/Nexus), five cases were brought against
the Secretary of State since devolution. Two of these
were in respect of decisions of planning inspectors
and three were not. These facts undermine the view that
the powers of the Assembly are significantly uncertain.
95. Those who argue that the Assembly
suffers a significant amount of uncertainty with regard
to its powers and functions pray in aid the disputes
surrounding the performance related pay of teachers
and GMOs. And I therefore come to deal with those two
matters.
Performance Related Pay and GMOs
96. I would respectfully suggest that
what some commentators have measured is not so much
the issues which surround these two controversial matters
but the reactions, of which they are part, to those
issues. The experience of the Assembly lawyers who were
involved in advising on these matters leads them to
very different conclusions on the issue of uncertainty.
The conclusion they draw is that despite the controversy
which surround these matters the law in relation to
them is not uncertain. The issues in relation to these
matters had little or nothing to do with the clarity
or otherwise of the Assembly’s powers and a great
deal to do with the political view that the Assembly’s
powers should be other than they were. It is true that
a number of legal opinions were sought on the teachers’
pay issue but that was because the legal advice given
by the education lawyer in OCG was unwelcome. When Mr
Widdrington’s advice was questioned by members
of the committee, I looked at the issue myself. I was
satisfied that the law was precisely as was represented
by Mr Widdrington in his advice. In all, I believe there
were no less than five legal minds which were brought
to bear on the issue including that of Mr Widdrington,
who is an expert in the law of education, two Queens
Counsel (including myself), the solicitor in the presiding
office and the junior counsel whom he consulted. Quite
remarkably, all advices were to the same effect. What
that demonstrates is not uncertainty, as Mr Osmond argues,
but certainty.
97. With regard to GMOs, I have already
explained in paragraph 99 above that there is no real
uncertainty as to the Assembly’s powers in this
area. Assembly lawyers have not had any doubts as to
the meaning and effect of the Assembly’s powers.
The idea that the National Assembly for Wales would
be able to ban genetically modified ("GM") crops in
Wales if it had primary legislative powers is also misconceived.
The real limit to the Assembly’s scope for action
is the wider European Union framework on the deliberate
release of genetically modified organisms and related
legislation on seeds marketing. There are circumstances
where Member States and sub-state authorities empowered
to act under the relevant Directives can provisionally
prohibit or limit the use or marketing of genetically
modified organisms ("GMOs") or crop seeds containing
GMOs, but the final decision on such measures is taken
at the European level().
98. The Community has adopted harmonising
legal measures, which have "occupied the field" in respect
of the deliberate release of GMOs and the marketing
of seeds. This means that Member States have no discretion
to introduce national laws that do not accord with the
relevant European Directives. It follows that the same
principle applies to sub-state authorities with devolved
powers such as the National Assembly for Wales.
99. The key Directives in respect of
the release and marketing of GM crops are Directive
2001/18/EC on the deliberate release of genetically
modified organisms, Directive 2002/53/EC on the common
catalogue of varieties of agricultural plant species
and a series of species specific marketing Directives.
Crop varieties intended for use as food must also comply
with Regulation 258/97/EC concerning novel foods and
novel food ingredients.
100. Before a food crop seed can be marketed
freely in Wales it must –
- have a European wide marketing consent under Directive
2001/18/EC;
- be on the UK National Seed List or the European
Common Catalogue as required by Directive 2002/53/EC;
- it must be approved for use as food under Regulation
258/97/EC; and
- be certified in accordance with the species specific
seed marketing Directive (e.g. Directive 2002/57/EC
on the marketing of seed of oil and fibre plants).
101. As far as issues of risk to human
health and the environment are concerned the central
Directive is 2001/18/EC (formerly Directive 90/220/EEC).
The Directive establishes a risk assessment based approach
to release in two stages. Individuals or companies wishing
to release or market unapproved GMOs must apply to the
competent authority of the relevant Member State. The
first stage is an application for consent to an experimental
release (called a ‘Part B consent’ after the
relevant Part of the Directive). The second stage is
an application for marketing which leads to assessment
of the application at the European level (called a ‘Part
C Consent after the relevant part of the Directive).
102. Applications for Part C consents
are sent to the competent authorities of the Member
States in which it is intended that marketing will take
place for the first time in the EU. Member State competent
authorities receiving applications make the initial
environmental risk assessment. The competent authorities
of other member States and the Commission can then comment
on that assessment and if there are any objections to
consent being given the decision is taken in accordance
with a "comitology" procedure(). This means that the
matter is referred to a committee of the representatives
of the Member States for a decision. In the event of
deadlock the decision goes to the Council of Ministers.
If the Council fails to reach a decision within a fixed
period the Commission takes the decision.
103. Once a GMO has European wide marketing
consent Member States and their devolved authorities
cannot prohibit or limit the marketing or use of the
GMO or products containing it, except in accordance
with any conditions on the consent set at European level.
There is however a safeguard procedure which allows
Member States and their devolved authorities to impose
prohibitions or limitations on the marketing or use
of GMOs which have EU wide Part C consents if there
is –
104. Directive 2002/18/EC is implemented
in the UK by Part VI of the Environmental Protection
Act 1990 ("the 1990 Act") and regulations made under
that Act. All of the Minster of the Crown functions
under Part VI of the 1990 Act are devolved to the National
Assembly for Wales, in so far as those functions are
exercisable in relation to Wales(). The Assembly is
also designated for the purpose of making regulations
under section 2(2) of the European Communities Act 1972
("the 1972 Act") in respect of the control and regulation
of the deliberate release of genetically modified organisms,
in so far as concerns human health or environmental
protection().
105. The transfer of functions under
the 1990 Act and the designation for the purposes of
regulations under section 2(2) of the 1972 Act means
that the Assembly is the competent authority in Wales
for the purposes of the Directive and exercises Member
State functions specified in that Directive, such as
the safeguard procedure. The following matters are Assembly
functions –
- assessment of applications for experimental releases
of GMOs in Wales (Part B releases)
- if it is proposed that a product is to be marketed
for the first time in Wales, the application must
be made to the Assembly and the Assembly makes the
initial assessment (Part C marketing consents).
- taking safeguard action to prohibit or limit the
marketing of authorised GMOs where there is information
that casts doubt on the existing environmental risk
assessment.
- Making regulations to implement EU obligations on
the deliberate release of GMOs, including power to
make modifications to the 1990 Act for that purpose().
106. Primary legislative powers will
not give the Assembly power to do things in respect
of the deliberate release of GMOs that it cannot do
already under Part VI of the 1990 Act or section 2(2)
of the 1972 Act and the existing EU framework, now contained
in Directive 2001/18/EC. The Assembly is obliged to
comply with European Law; both impliedly as a result
of its status as an emanation of a signatory Member
State to the Community Treaties the provisions of which
are given the force of law in the UK by section 2 of
the 1972 Act, and expressly by section 106 of the Government
of Wales Act 1998.
107. Primary legislative powers might
be a useful addition to the Assembly’ powers, but
only in limited circumstances. If the EU framework changes
significantly it might be necessary or desirable for
the 1990 Act framework to be completely recast. There
is no prospect of this occurring at present, but if
this should ever be done, it is arguably more appropriate
for that to be done by primary legislation rather than
regulations under section 2(2) of the 1972 Act. The
1972 Act also has a number of limitations set out in
Schedule 2 to the Act, which might make such regulations
an inappropriate vehicle for all aspects of legislative
change of this kind.
108. The advantage for the Assembly in
having primary legislative powers in this field would
be to give the Assembly the option of establishing greater
clarity for the public on the law that applies to Wales
on deliberate release. At present the law on deliberate
release of GMOs as it applies to Wales is a complex
mesh of provisions in primary legislation, secondary
legislation made under the 1990 Act, 2 transfer of functions
orders, and one designation order in respect of section
2(2) of 1972 Act. Even with primary powers, however,
the Assembly could only enact a system that was in accordance
with the relevant EU measures in force at the time.
It could not enact a wide-ranging ban on GM crops that
operated outside the product by product risk assessment
process created by Community law.
109. The Assembly has resolved to apply
the most restrictive regime possible under Community
law. This policy is lawful and has guided recent action
by Assembly Ministers. The Assembly has acted to impose
separation distances in the case of one GM maize variety
that has an EU wide Part C marketing consent. The purpose
of doing this was to prevent contamination of conventional
and organic maize with pollen from GM maize. The Assembly’s
action in respect of this product was notified to the
Commission in accordance with the Directive and a decision
of the relevant regulatory Committee is awaited. The
Assembly’s action has made a significant contribution
to the EU wide debate now on going in respect of the
co-existence of GM crops with conventional and organic
crops.
WINSTON RODDICK QC
Counsel General
National Assembly for Wales
December 2002
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