Submission to the Richard Commission:

The Scottish And Welsh Models Of Executive Devolution

David Lambert and Sarah Beasley of Cardiff Law School

Note: This submission contains material from Miss Beasley’s Ll B dissertation which is proposed to be published by Statute Law Review later this year.

1. The Similarities between the Two Models.

Schedule 5 to the Scotland Act 1998 sets out subject headings. Schedule 2 to the Government of Wales Act sets out fields. Both concepts are expressed in similar terms, though, because of the fundamental difference in the method of conferring functions in the two Acts, there is not always an equivalent in Schedule 5 to a field in Schedule 2.

2. The Differences between the Two Models.

a) The Scotland Act
The purpose of listing subject headings in Schedule 5 to the Act followed by descriptions of the subjects is to set out matters which are not within the legislative competence of the Scottish Parliament or within the Executive competence of the Scottish Executive. The Scottish Executive has total powers to exercise the functions of U K Ministers in pre 1999 Acts of Parliament applying to Scotland except where there is a subject heading in Schedule 5. Thus as there is no "Education" subject heading in Schedule 5, there are no exceptions to these powers. Consequently, the Scottish Executive can exercise all UK Ministerial functions in pre 1999 Education Acts which apply to Scotland.

b) The Government of Wales Act
The purpose of Schedule 2 to the Government of Wales Act is to set out the fields within which functions are to be transferred to the Assembly under the first Transfer of Functions Order to be made under section 22 of the Act.

Merely because "Education" is in the list of fields in Schedule 2 does not of itself enable the Assembly to exercise all UK Ministerial functions in pre 1999 Education Acts applying to Wales. Provisions in a particular Act have to be transferred under an Order before the Ministerial functions contained in such provisions can be exercised by the Assembly.

Furthermore, the heading "Education" in Schedule 2 does not guarantee that the Order will transfer all Ministerial functions under every pre 1999 Education Act to the Assembly. Not all Education Acts are listed. The Order has to specify the particular Act, before functions in that Act can be exercised by the Assembly. The Order can transfer an Act with provisoes restricting the exercise of the functions by the Assembly under that Act to certain Parts, sections or Schedules. The Order can also specify the manner in which the functions are to be exercised, for example with the consent of the Treasury or together with a UK Minister.

3. The nature of the reserved matters in Schedule 5 to the Scotland Act

a) General Approach
The Departmental Guidance Note No.14 (DGN 14) issued by the Scottish Parliament explains that the general approach adopted in setting out the reserved matters under the subject headings in Schedule 5 is not to list functions by reference to specific legislation but by general descriptions of the subject matter. An example of this is:

"Sea Fishing Regulation of sea fishing outside the Scottish Zone".

Where it is necessary to set out an exception to the subject description, the exception is usually also by reference to a general subject as well. Thus the exception to the above reservation for sea fishing outside the Scottish zone is "except in relation to Scottish fishing boats". Therefore in the case of any UK Ministerial function falling within this exception to the reserved matter, the Scottish Executive can exercise that ministerial function.

DGN 14 explains that the purpose of expressing the reservations and the exceptions to the reservations as far as possible in broad terms was deliberate. It was "to allow the courts to take a broad approach to the interpretation of Schedule 5 and in particular to consider the intended coverage of reservations instead of relying on an unduly literal approach".

b) Specific approaches
Under certain subject headings, because it was necessary to set out specific, not general exceptions, the reserved matters are not described by reference to general subjects. In these cases, reference is made to specific Acts or specific enactments such as sections of Acts or statutory instruments. Such descriptions, however, are few in Schedule 5.

An example is:

"B5 Entertainment.

The subject matter of -

(a) the Video Recordings Act 1984, and
(b) sections 1 to 3 and 5 to 16 of the Cinemas Act 1985 (control of exhibitions)"

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

This is the order which sets out legislation falling within the fields listed in Schedule 2 to the Act. A page from the Order is at the Annexe to this document. The page illustrates the complexity of the Order, which for the first time seeks to set out in a statutory form the functions which were exercised by the Secretary of State for Wales immediately prior to the making of the Order in March 1999. There were no generally agreed principles governing the matters of the responsibility of the Secretary of State for Wales. The extent of the powers which the Secretary of State for Wales would exercise under any particular Act was for administrative agreement between the relevant UK Secretary of State, the Welsh Office and the Cabinet Office. The extent of his powers varied from Act to Act and from Government Department to Government Department. From about 1970 onwards, it appears that no Act gave powers expressly to " the Secretary of State for Wales". Apart from Agriculture (where there was a statutory "Minister of Agriculture, Fisheries and Food") statutory powers were usually vested in "the Secretary of State" leaving it to administrative agreement as to which Secretary of State this would be in relation to Wales. Thus social services in Wales was a responsibility of the Secretary of State for Social Services until in 1970 an agreement was reached that this would become a function of the Secretary of State for Wales. The agreement was recorded in a letter, not in a formal legal document.

From the page at Annexe 1, it will be seen that the descriptions of the functions are expressed in very different terms from the majority of the descriptions in Schedule 5 to the Scotland Act. Thus:-

there are no subject headings in the Order;
there is no description of the Assembly’s functions by reference to general subject matters;
all descriptions of the powers given to the Assembly are by reference to Acts set out in chronological order according to the year that each Act was enacted;
of the 350 Acts which are listed, some one third contain no provisoes. In those cases all the Ministerial functions are therefore transferred to the Assembly;
for the remaining two thirds of the Acts which are listed on the Annexe 1 page there are provisoes to the transfer of Ministerial functions. Examples are:

the Food Act 1984 excepts a section, a subsection and certain general references in the Act to Ministers;
the Cycle Tracks Act 1984 transfers only one section;
the Food and Environment Protection Act 1985 gives certain powers which can be exercised both by the Assembly and a UK Minister "concurrently";
the Housing Associations Act 1985 requires Treasury consent to the exercise of two of the functions in the Act;

5. A comparison between the Fields in the Government of Wales Act and the subjects in Schedule 5 to the Scotland Act.

a) Fields in Schedule 2 to the Government of Wales Act having no equivalent subject headings in Schedule 5 to the Scotland Act.

There are 18 fields set out in Schedule 2 to the Government of Wales Act. Some of these fields have no equivalent subject headings in Schedule 5 to the Scotland Act. This is because Schedule 5 only lists the exceptions to the competencies of the Scottish Executive. The fields in Schedule 2 to the Government of Wales Act for which there are no equivalent subject headings in Schedule 5 to the Scotland Act are:

Agriculture

Forestry

Food

Ancient Monuments and Historic Buildings

Education and Training

Highways

Housing

Local Government

Social Services

Sport and Recreation

Tourism

Town and Country Planning

Water and Flood Defence

Where there are no subject headings in Schedule 5 to the Scotland Act corresponding with the equivalent fields in Schedule 2 to the Government of Wales Act, the result is that the Scottish Executive can exercise all Ministerial powers, without proviso, in pre 1999 Acts of Parliament.

b) Fields in the Government of Wales Act having equivalent subject headings in Schedule 5 to the Scotland Act.

These fall into 2 categories:

(i) Schedule 5 subject headings followed by general subject matter descriptions.

The fields in Schedule 2 to the Government of Wales Act for which there are these types of subject headings are:

Fisheries

Economic Development

Industry

Health

Transport

(ii) Schedule 5 subject headings followed by descriptions relating to the subject matter of an Act, or a section of an Act.

There are 3 such subject headings, each subject heading contains both lists of general subject matter descriptions and references to specific Acts or sections of Acts.

The following are the subject headings with their list of those enactments which also appear in the 1999 Assembly Order:

1. Trade and Industry:
A subject matter reservation of section 1 of the Industrial Development Act 1982.

2. Transport:

(i) Road Transport

The subject matter of:

the Public Passenger Vehicle Act 1981 and the Transport Act 1985, so far as relating to public service vehicle operator licensing.

Section 17 (traffic regulation on special roads) section 25 (pedestrian crossings) Part V (traffic signs) and Part VI (speed limits) of the Road Traffic Regulation Act 1984.

the Road Traffic Act 1988 and the Road Traffic Offenders Act 1989.

(ii) Other Transport Provisions:

The subject matter of sections 125(7) and (8) of the Transport Act 1985.

Grants to Railway services under the Railways Act 1993, except for 3 sections.

3. Health and Medicines
The subject matter of the regulation of health professionals, including the professionals referred to in the Nurses, Midwives and Health Visitors Act 1997.

5. To what extent could the structural complexities of the Assembly’s 1999 Order have been overcome by using the Scottish concepts?

(i) Could the 1999 Order have contained subject matter descriptions?

Section 22(1) (a) of the Government of Wales Act states "Her Majesty may by Order in Council –

(a) provide for the transfer to the Assembly of any function so far as exercisable by a Minister of the Crown in relation to Wales". As read with Schedule 2 to the Act it would seem to have been possible to contemplate transferring, at least certain subjects and subject descriptions thereby allowing all Ministerial functions under pre 1999 Acts of Parliament coming within those subject matters to be exercisable by the Assembly. For example there could have been this heading in the 1999 Order:

"Ancient Monuments and Historic Buildings – All Ministerial functions falling within this subject".

(ii) Could the 1999 Order have contained subject matter exceptions?

When a Transfer of Functions Order in 1970 transferred as a general subject matter primary and secondary education functions in Wales to the Secretary of State for Wales, it excepted powers relating to the pay, qualifications and training of teachers from the transfer. Thus a subject matter function was transferred with subject matter exceptions. In Schedule 5 to the Scotland Act there are descriptions of subject matters listed with subject matters excepted from the descriptions.

(iii) Cases where Schedule 5 refers to Acts and sections of Acts.

It is only in a limited number of cases, because of the particular nature of the description, that it was considered necessary in Schedule 5 to the Scotland Act to depart from the general subject matter principle. A particular example is that of Road Transport where one of the reservations is expressed by reference to Part V (traffic signs) and PartVI (speed limits) of the Road Traffic Regulation Act 1984. Two specific sections of the Act are also referred to. This was no doubt considered necessary to retain a unified approach to measures relating to road traffic in the United Kingdom.

However, it is suggested that these exceptions are expressed in a clearer way than the equivalent provisions in the Assembly’s 1999 Order in relation to the same Act particularly when a summary is given in brackets of the nature of the provisions. In the Order, the Ministerial functions under the Act are all transferred, except for some random eighteen sections, one Schedule, three subsections and two exceptions to the exceptions, one of which relates to the Assembly’s power to place the Welsh language versions of words on road signs. There are no summaries of the excepted provisions.

(iv) If Scotland, why not Wales?

Given the decision in the Government of Wales Act to confer powers expressly on the Assembly, why did the Assembly’s Order not adopt the same approach as Schedule 5 to the Scotland Act in the giving of these powers?

The answer to this can only be that a literal interpretation was given to the provisions of the 1997 White Paper – ‘A Voice for Wales’. The Assembly would initially only exercise the powers exercisable by the Secretary of State for Wales. Thus if, solely for administrative reasons, relating as much to the availability of staff as anything else, only the powers in section 5 of the Cycle Tracks Act 1984 were exercisable by the Secretary of State for Wales in March 1999, then that is all the Assembly received under the Act.

However, this approach of listing 350 specific Acts with many specific exceptions to them ignored the subject matters where the Secretary of State for Wales exercised statutory functions coming within general subject matter descriptions – primary and secondary education (with subject matter exceptions) and social services being examples.

6. Can there be a different approach to the nature of the powers exercisable by the Assembly in the future?

Schedule 5 to the Scotland Act shows that it is possible to express statutory functions by means of subject matters. The subject matters can be general, or specific. Where necessary, and this does not occur very often in Schedule 5, the subject matters can be expressed by particular reference to Parts or sections of Acts. Even here, however, the nature of the subject matter can be summarised by reference to a general exploration of the Part or section.

Thus "Part V (road signs)" of the Road Traffic Regulation Act or "sections 10 to 12 of the Industry Act 1972 (credits and grants for construction of ships and offshore installations)".

Future Acts of Parliament giving powers to the Assembly could be in terms of similar general executive subject competencies. These competencies could be based on the long title of the Act where it is sufficiently comprehensive or, if the title is too wide, the subject headings of the Chapters or Parts of the Act. For example, in the case of an Education Act whose general purpose was to make provision for the education of children between the age of 3 and 11, the Assembly could have a general subject matter competency to make such provision as it considered necessary for the education of children between the age of 3 and 11, including the making of orders and regulations in relation thereto.

If the Assembly’s powers under the Act needed to be constrained in any way, there could be subject matter exceptions such as an exception for "the subject of Part – (the control of teachers’pay and qualifications)", or, if really necessary, an exception for the subject matter of a section.

However, post-devolution Acts of Parliament do not adopt a general subject matter approach. A number even give powers to the Assembly in the same way as those given in the 1999 TFO, namely section by section, with some sections reserved to central Government. An example of this are many of the sections in the various Parts of the Education Act 2002, each section of which has to be read to ascertain whether or not the particular section gives powers to the Assembly.

However there is a possible way forward. The provisions of section 214 (1) of the Education Act 2002 demonstrate the concept of implementing provisions by reference to the purposes of an Act. Under this section, regulations may make such incidental, consequential, transitional or supplementary provision as appears to either the Secretary of State or the National Assembly for Wales "to be necessary or expedient for the general purpose of, or for particular purposes of the Act, or in consequence of any of its provisions or for giving full effect to it."

Under section 214 (2), regulations under section 214 (1), may amend, repeal or revoke, with or without savings, any statutory provision (including provisions in an Act of Parliament).

There seems to be no reason why, as the Assembly is a democratic body, it should have powers conferred on it only in the same manner as powers are conferred on a UK Minister by means of detailed enumeration in an Act. One of the main purposes of the Assembly was to democratise executive decision-making by changing the whole nature of Ministerial accountability, or the lack of it, to Parliament. Such a change could surely be accompanied by a fundamental change in the nature of the powers given to this democratic body, namely by the granting of subject matter responsibilties or by setting out the purposes of the Act within which the Assembly would have functions.