Draft Chapter by Professor Miers "Law Making in Wales"

Evidence by Professor Miers toWelsh Affairs Committee

The purposes of this submission are to analyse and exemplify the main areas of difficulty in the accurate identification of the Assembly’s functions. It details the general comments made in our earlier submission, Law making in Wales: Wales legislation on line. Following a summary of the nature of executive devolution and of the nature of the questions that are addressed here, this submission considers five matters:

1 The Transfer of Functions Order 1999

2 Post TFO Acts

3 Commencement Orders

4 Statutory Instruments made under post-1999 Acts

5 Examples of subject area competence

Unlike the Scotland Act 1998, which transferred general legislative and ministerial competence in the devolved areas respectively to the Scottish Parliament and the Executive, save where excepted by Schedule 5, the Government of Wales Act 1998 provided only that discrete powers could be transferred by Order or by primary legislation. Whereas, for example, the Scottish Parliament has a general (primary) legislative competence in agriculture (unless excepted), the Assembly has only those individual powers within the ‘field’ of agriculture (GOWA, Schedule 2) that have been transferred to it. To use the analogy of a jigsaw puzzle, in Scotland there is a picture of the full puzzle (for example, agriculture), from which some pieces may be removed. In Wales, by contrast there is no picture; only pieces. There may be a Minister for Health (formerly an Assembly Secretary) in the Welsh Assembly Government, but unlike her counterpart in Scotland, she does not exercise ministerial functions in respect of the whole of health, but only those functions that central government has allocated to the Assembly.

Our concern is with how, and not what, functions are transferred to the Assembly. Whether a function is to be transferred is a political question. Nevertheless, it should be recognised that the consequences of the political choice can create what, in law, appear anomalous or awkward legal questions for the Assembly. For example, sections 64 and 65 of the Road Traffic Regulation Act 1984 concern the information that may be placed on road signs. The TFO transfers to the Assembly power to prescribe a variant on a road sign as is provided by section 64. That transfer does not extend to the variation of any sign of a type prescribed by "the Ministers" and carrying words in English, being a variant identical with a sign of that type for the substitution or addition of words in Welsh. The Assembly cannot therefore decide what information is to be placed on road traffic signs, although it can decide what the Welsh version will be of the information that is prescribed by the Minister. Who should decide what information goes on road signs is clearly a political question; but in the distribution of powers there is a perhaps a need for their allocation to be reconsidered and redistributed.

1 THE TRANSFER OF FUNCTIONS ORDER 1999

1.1 The effect of transfer to the Assembly
We consider in this section the legal effect of the transfer of functions made under the TFO, using three groupings: the transfer of all functions in an Act or section(s), the transfer of functions to be exercised with central government, and the transfer of functions with exceptions. Within group three is a further category, the transfer of exceptions to exceptions. There is, therefore, a wide variety of possible permutations of transfers (with or without the involvement of central government), exceptions and sub-exceptions. A number of illustrative examples are given.

Group One: the transfer of all functions in an Act or section(s)
1  all functions in the named Act are transferred

• Animal Health and Welfare Act 1984

2  all functions in specific sections in the named Act are transferred

• Cycle Tracks Act 1984, s. 3

Group Two: the transfer of functions to be exercised with central government
3  the transferred functions are to be exercised with the consent of central government

• Food and Environment Protection Act 1985, sections 8(9), 16(2) and 18(4) (Treasury consent)
• Local Government and Housing Act 1989, section 80 (consent of the Secretary of State).

4  the transferred functions are to be exercised concurrently with central government

• Road Traffic Regulation Act 1984, s. 128: power to hold enquiries
• Food and Environment Protection Act 1985, functions under sections 1(1), 3(1) and (2), 13, 14(2) and (3), 17 and paragraphs 4 to 6 of Schedule 5 exercisable by the Assembly concurrently with any Minister of the Crown by whom they are exercisable.

5  the transferred functions are to be exercised jointly with central government

• This is particularly the case with a number of agriculture functions.

Group 3: transfer of functions with exceptions
This group is more complex. There are different ways in which the exception may be effected. In addition, some transfers involve exceptions to exceptions. We deal with each category in turn.

Group 3A: simple exceptions
The most straightforward is a statement of the excepted section, subsection or Schedule. They may also be effected by reference to a specific function, functions exercisable by central government, by reference to an area of Wales (and, in certain circumstances, England), or by reference to the matter to which the function relates. This last formulation is similar to the drafting practice of referential amendment, which requires the interpreter to work out what is being amended, or, in this case, transferred or excepted. The first four formulations (6-9) resemble textual amendment, in that the interpreter is told directly what has been transferred or excepted.

6  Exception by reference to specified parts of the Act

• Building Act 1984, except sections 1, 2, 3(1), 6, 8(2), (3) and (6), 11 to 13, 14, 16(9), 17 and 19(7)

• Agricultural Holdings Act 1986, except paragraph 4(1)(a) of Schedule 12

7  Exception by reference to a specified function

• Building Act 1984, except section 20(5) so far as it relates to the function of prescribing the time and manner of appeals

8  Exception by reference to functions exercisable by central government

• Food and Environment Protection Act 1985, except the functions of the Minister of Agriculture, Fisheries and Food under sections 16 and 18 and paragraphs 1 to 3 of Schedule 5

• Food Act 1984, the functions of "the appropriate Minister" under section 68 other than so far as they are exercisable by the Secretary of State for Wales

9  Exception by reference to area

• The Water Industry Act 1991 transfers functions to the Assembly "in relation to the Dwr Cymru water and sewerage undertaker and its area of appointment"- this includes parts of Herefordshire. This is recognised in GOWA section 44(4)(b) where there is a reference to the Assembly exercising subordinate legislative powers in relation to "an English border area."

10  Exception by narrative description of the function

• Food and Environment Protection Act 1985, functions under Part II so far as exercisable in relation to matters concerning or arising from the exploration for, or production of, petroleum.

Group 3B: exceptions to exceptions

• Building Act 1984, except sections 20(10), 38(1), 43(3), 44, 47 to 49, 50 (except subsections (2) and (3)), 51 to 58, 92, 120 and Schedules 1 and 4

• Industrial Development Act 1976: the TFO 1999 provides "Nothing is transferred in this Act, but it is directed that…." and then lists those exceptional functions which are transferred.

Every transfer is a discrete allocation. As transfers to do with the same devolved subject matter accumulate, they can, to assist an understanding of the Assembly’s powers, be categorised as belonging to one of the 18 ‘fields’ specified in Schedule 2 to GOWA (as we have done with Wales legislation online). But this cannot in law be equated with the competence in their subject areas that is exercised by the Scottish institutions. To adopt the distinction used in French public law, the Scotland Act 1998 confers competence generale on its institutions. GOWA confers competence limitee on the body corporate that is the Assembly. As we have noted, the nature of the devolution settlement in each case is pre-eminently a political question, but the systemic or structural consequences of the choice that is made has a direct impact on the ease with which users can determine the Assembly’s powers.

It should be noted that the Schedule 2 fields in GOWA were included only for the purpose of the making of the first TFO. Because they have no underlying subject area rationale, transfers to the Assembly will, as noted earlier, present apparent anomalies within these fields, even allowing for its lack of general competence within them. For example, in the Schedule 2 field, ‘Transport’, three consecutive instruments were made by central government in 2001. These broadly concern the condition and testing of public and privately owned motor vehicles. Two of them were made under the Road Traffic Act 1988 (the Motor Vehicles (Tests) (Amendment) Regulations 2001 (No. 1648) and the Goods Vehicles (Plating and Testing) (Amendment) Regulations 2001 (No. 1650)). It may be noted that other functions under this Act are devolved to the Assembly. The third instrument, which is the second in this sequence, (the Public Service Vehicles (Conditions of Fitness, Equipment, Use and Certification) (Amendment) Regulations 2001 (No.1649)) was made under the Public Passenger Vehicles Act 1981 under which no functions are devolved. For the user not privy to the decision that was made in Whitehall to allocate them in this way, this distribution of closely related functions within one of the GOWA fields is not readily comprehensible. This apparent lack of consistency in dealing with related matters is one obstacle to the task of identifying what are the Assembly’s functions. The user can never assume that what are apparently related matters within the GOWA fields will be treated similarly for devolution purposes. As with the other 17, a user who wished to determine exhaustively what powers the Assembly has within the field, transport, would have to examine

1. the initial and any subsequent TFOs
2. any post 1999 Acts of Parliament dealing with transport, and
3. all statutory instruments made under the Acts positively identified in (a) and (b).

Nor is it generally recognised that by virtue of article 3 of the initial TFO, all of the powers contained in the secondary legislation made under the Acts which it lists were also devolved to the extent that the primary legislative powers were devolved. It is impossible to say exactly how many statutory instruments or powers this transfer comprises, nor which of them has been amended or revoked.

Unlike all other Acts in the first TFO where powers are listed by reference to Parts or (sub) sections of those Acts, the powers in the Agriculture Acts passed before 1980 are only described by a general reference to the powers which the Secretary of State for Wales had under the TFOs made under the Minister of the Crown Acts. This means that it is necessary to look at the original TFOs that transferred powers in agriculture to the Secretary of State. There are considerable complexities here; for example Article 3(1) of the TFO (Wales) 1969 SI 1969 No 388.

 1.4 Postscript: functions exercisable by central government with the Assembly

Functions in respect of Wales retained by central government may have to be exercised with the consent of, or after consultation with the Assembly. These different forms of common action may be found in the same Act. For example:

• Race Relations Act 1976, section 71(B)(2): the Secretary of State must consult the Assembly before making an order under section 71(2)
• Race Relations Act 1976, section 71(B)(3): the Secretary of State must obtain the consent of the Assembly before making an order under section 71(2)

2.1  New Legislation: General

The patchwork transfer of functions evident in the initial TFO for the most part continues in subsequent TFOs made under GOWA. The Assembly is also given competencies under section 2(2) of the European Communities Act 1972 and by primary legislation enacted since 1999. In the case of section 2(2), the Assembly’s enabling powers are expressed by reference to subject area (section 5.1(b) below). In relation to primary legislation enacted since 1999, we give two detailed examples below (section 2.3).

The question considered here is whether, instead of these discrete allocations, it would be desirable for there to be a general provision in primary legislation where new functions are transferred, making that transfer. This can be done for Scotland because of the nature of the devolution settlement, which transferred general competence in subject areas, save for those excepted under Schedule 5. Thus post 1998 Westminster primary legislation dealing with matters devolved to Scotland shall, for some purposes, be deemed to have been enacted prior to 1999. This means that the subject matter in question, for example, in the Water Act 1999, is automatically a matter for Scotland.

This device is not possible under the Welsh devolution settlement, as the Assembly has no general competencies in any subject area. There are two devices which could be used to assist clarity in what is transferred to the Assembly. The first would be the inclusion of a general provision to the effect: ‘Every reference in this Act to the Secretary of State is a reference to the National Assembly for Wales, except …..’. A limited example of such provision is section 150 of the Learning and Skills Act 2000 (below, section 2.3(b)). More radical is a section which, following the sections applying to England, provides that "the National Assembly for Wales may make such orders as it considers necessary to implement the objects in this Act." This is the kind of framework formula that many envisaged would follow from the proposals for devolution made in the White Paper. Conventions about the manner in which transfers are to be expressed would pre-eminently be a matter for the Concordats or Memoranda of Understanding.

2.2 New and Amended Functions: General.

An increasingly important matter is the effect of amendments in post 1999 primary legislation on Acts listed in the TFO which transferred functions to the Assembly. Three main possibilities arise.

1. Any amendment to the transferred section (or subsection) is likewise an amendment to the Assembly’s functions under that section (or subsection)
2. Where the Act listed in the TFO transferred functions to the Assembly subject to exceptions, a new or an amended function is transferred to the Assembly unless it falls within those exceptions (this may be more complex where the transfer involved exceptions to exceptions)
3. Where the post 1999 Act amends the Act listed in the TFO by the addition of a new section, or a subsection to a section which was not transferred, that new function is not transferred unless the Act so states.

The Local Government Act 2000 and the Learning and Skills Act 2000 demonstrate two different ways in which functions may be transferred. In terms of clarity for the user, the Learning and Skills Act 2000 is a helpful model.

This Act contains 109 sections and six Schedules. Within Part VI section 106 (Wales) provides:

This section summarises the application to Wales of only some of its Parts; Part I for example makes its own provision. Only in the case of Chapter III of Part III is there an explicit reference to Wales (Chapter III: Investigations etc, Wales). It is therefore necessary to work through the entire Act to identify what functions are transferred. That exercise yields four groups.

• Functions which the Assembly may exercise independently of central government
• Functions which the Assembly shares with central government
• Functions which central government exercises with the consent of the Assembly
• Functions which central government exercises in relation to Wales.

The exercise also shows that some aspects of some sections fall into more than one of these groups; in particular, sections 2-5 fall into one or more of these four groups.

Sections 2, 3, 5, 6, 7, 11, 13, 17-20, 22, 25, 30, 32-36, 41, 45, 47, 49-50, 53-54, 68, 70, 73, 75-77, 81-82, 86-88, 93, 100-101, 105, 108.

Sections 3, 4, 82, 93, 100-101.

Sections 5, 6, 9, 49-50, 82.

Sections 5, 6, 44, 49-50, 53-54, 82.

This Act contains 156 sections and 11 Schedules. Section 150 provides

General Wales. 150. - (1) Where this Part of this Act confers a function on the Secretary of State (whether by amendment of another Act or otherwise)-

(a) the function shall be exercisable in relation to Wales by the National Assembly for Wales, and

(b) for that purpose any reference to the Secretary of State shall be taken as a reference to the National Assembly.

(2) Where-

(a) this Part confers a function on the Secretary of State by amendment of an Act, and

(b) any functions of that Act have before the passing of this Act been transferred to the National Assembly by Order in Council under section 22 of the Government of Wales Act 1998 (transfer of functions),

the Order shall be treated for the purposes of any varying or revoking Order as having transferred to the National Assembly the function mentioned in paragraph (a).
(3) Subsection (1)(a) has effect subject to any Order in Council made by virtue of subsection (2).
(4) This section shall not apply in relation to-

(a) section 90, 92, 104, 134 or 154 of this Act,

(b) the amendment of section 1(3) of the Education (Fees and Awards) Act 1983 (fees at institutions) made by Schedule 9 to this Act,

(c) the amendment of section 26 of the Employment Act 1988 (status of trainees etc) made by Schedule 9 to this Act, or

(d) the amendment of section 19 of the Disability Discrimination Act 1995 (discrimination in relation to goods, facilities and services) made by Schedule 9 to this Act.

This section only applies to Part V of the Act. But it does contain two Parts (Part II and Part IV) which expressly state that they apply only to Wales, although the functions in some of the sections within these Parts are not transferred to the Assembly, but are exercisable by central government. There are also sections in other Parts whose functions are transferred to the Assembly that are expressly stated in their individual headings as applying to Wales. This Act generates three groups in its application to Wales.

• Functions which the Assembly may exercise independently of central government
• Functions which the Assembly exercises after consultation with local authorities
• Functions central government exercises in relation to Wales

As in the case of the Local Government Act 2000, some functions in some sections fall into more than one of these groups, though the overlap is less pronounced. Sections transferring functions that specifically state ‘Wales’ in their headings or which fall within Parts II or IV are asterisked in the lists that follow. The conclusion we reach is that the manner in which this Act has been constructed, together with the clear signposting of the vast majority of sections which transfer functions to the Assembly, is more helpful to the user who wishes to establish what the Assembly may do under it, than the Local Government Act 2000.

Sections 30*, 38*, 40*, 43-44*, 46*, 48-50*, 75-76*, 81*, 83-85*, 91*, 93*, 99*, 102*, 107-8, 111, 123*, 127-128*, 140-141, 143, 148, 154.

Sections 81, 112, 127, 143.

Sections 92, 154.

A Commencement Order brings a statutory provision into force. In terms of their legal effect, we may, broadly speaking, distinguish

1. those provisions which, upon their commencement, bring into force some new or amended law which neither permits nor requires any further action by any named body (for example, the Court, the Assembly, the Secretary of State) for it to apply to its subject-matter; and
2. those provisions which, upon their commencement, require or permit a named body to undertake some further action in respect of the subject matter to which they apply; for example, section 75 of the Learning and Skills Act 2000, which permits the Assembly to make regulations adding other types of education to the remit of the Chief Inspector for Wales (Part II of the Act).

We deal in this section with the relatively simple case outlined in (a); the more complex issues arising in case (b) are dealt with in section 4.

There are a variety of possibilities concerning who has the authority to make commencement orders in respect of provisions affecting Wales under post 1999 Acts of Parliament.

1. Where the entire Act applies only in Wales, it may designate the Assembly the appropriate authority (Children’s Commissioner for Wales Act 2001).
2. Where Parts of the Act, or particular (sub) sections, apply only in Wales, it may designate the Assembly the appropriate authority for those Parts or (sub) sections.
3. Where Parts of the Act, or particular (sub) sections, apply only in Wales, it may designate central government the appropriate authority for those Parts or (sub) sections.
4. The Act may designate the Assembly the appropriate authority for any one or more of its Parts or (sub) sections applying throughout England and Wales, as they apply in Wales
5. The Act may designate central government the appropriate authority for any one or more of its Parts or (sub) sections applying throughout England and Wales, as they apply in Wales.

Two major consequences flow from these possibilities. The first is, in short, that the provisions of an Act as they apply in Wales may be brought into force in some instances by the Assembly (a, b, d), and in others, by central government (c, e). For example, in the case of the Care Standards Act 2000:

1. Central government brought some provisions of the Act into force in relation to England and Wales by the Care Standards (Commencement No. 1) Order 2000 (S.I. 2000/2544 C.72)¹
2. Central government brought other provisions were into force in relation to England only by the succeeding six commencement orders,² and
3. The Assembly brought other provisions of the Act into force in relation to Wales only.³

Commencement Orders under this Act in respect of Wales were therefore made by central government (1) and by the Assembly (3).

The second consequence is that, irrespective of whether central government or the Assembly is the designated authority, the provision may be brought into force for England but not for Wales, with the result that different laws apply as between the two. For example, the commencement of the Commonhold and Leasehold Reform Act 2002 is a matter for central government for England and for the Assembly for Wales. A Commencement Order has been made for England,⁴ but not for Wales. Consequently the new rights contained in the Act concerning land purchase are not yet available to people buying houses in Wales, wherever the purchaser may currently live. There is a further differential effect; namely, that the subordinate legislation made under earlier Acts repealed by the provisions of the 2002 Act will continue to apply in Wales until such time as the Assembly brings them into force.

Commencement Orders have two operative times: the date on which they are made, and the date that they specify for the commencement of the relevant section. The period of time between making and commencement may be short or long. This is a political decision that depends on a cluster of administrative and other factors that the designated authority considers important. In cases where equivalent provisions are applicable in England and Wales, it is apparent that different times may be chosen for the two jurisdictions by central government and by the Assembly (and sometimes for different purposes). Some of these possibilities may be depicted as follows, where M1-M3 are alternative dates for making the Order, and C1-C3 are alternative dates for the section to come into force:

Jurisdiction                Making                                            Into force.

England ------------------- M ----------------------------------------- C -------------

Wales ------------- M1---- M2 ------- M3 ----------------- C1 --- C2 ----- C3.

An example is provided by the Housing Grants (Additional Purposes) Orders made under the Housing Grants, Construction and Regeneration Act 1996 by the Assembly in relation to Wales and central government in relation to England. This example also shows that the time differences may be substantial; in this case, virtually a year.

Jurisdiction     SI No                        Made                     Into force.

England            2000 No 1492       6 June 2000             4 July 2000

Wales           2001 No 2070       24 May 2001             1 July 2001

It is also of course possible that, though they are made on different dates, the sections come into force on the same date. Our research suggests that approximately 50% of Orders made by central government and the Assembly respectively concerning equivalent provisions do coincide in time.

We have just noted that because of discrepancies in the timing of commencement orders made by the Assembly and by central government, the same provision may come into force at different times in England and in Wales. A number of other possibilities arise which flow from the substantive instruments made under post devolution legislation. Broadly speaking, there are now two sources of subordinate law applying to Wales: that made by central government and that made by the Assembly. These are:

1. In respect of non-devolved functions, central government continues to have absolute authority to make subordinate legislation for Wales.
2. In respect of devolved functions, subordinate legislation may, as set out in section 1.1 of this paper, be

(a) made exclusively by the Assembly (Group One)

(b) made by the Assembly jointly, concurrently or with the consent of central government (Group Two).

In the remainder of section 4 we examine some issues that arise:

• in respect of 1 (non-devolved functions exercisable by central government)

• in respect of 2(a) and (b) (devolved functions exercisable by the Assembly)

Central government continues to make the bulk of the secondary legislation applying to Wales (as well as England) in these two areas. This is so, even though a number of functions within these areas have been transferred to the Assembly. The number of instruments made by the Assembly and by central government per year for these two subject areas are:⁵

It is not always clear whether an instrument made by central government applies only to England or to Wales as well as England. This is because there is no routine mention of the words, ‘Wales’ or ‘Welsh’ in their titles. In the absence of clear indication, every general instrument needs to be checked to see whether it does extend to Wales. Moreover, there is at least one instrument which, though expressly stating in its title that it applies only to England, also applies to Wales. This is the Beef Bones (Amendment) (England) Regulations 1999, where the Secretary of State for Wales was involved in the making of the SI.⁶

(c) Supplementary Instruments for Wales

Within the one instrument made by central government, some provisions may apply to England and Wales and some to England only. A supplementary Wales-only instrument made by the Assembly is therefore necessary to be read in conjunction with the England and Wales instrument in order to obtain the full picture. In the Adoption of Children from Overseas Regulations 2001 SI 2001 No. 1251, regulation 1(2) provides that ‘this regulation and regulations 2 and 3 extend to England and Wales; regulation 4 extends to England only.’ The Explanatory Note states: ‘These provisions apply to England only; similar provision is to be made in relation to Wales by the National Assembly for Wales.’ Provision was made for Wales by the Adoption of Children from Overseas (Wales) Regulations 2001 SI 2001 No. 1272 (W.71). As a postscript to section 3.3, it may be noted that both instruments were made on the same day and came into force on the same day (30 April 2001).

When a section requiring or permitting the Assembly to make subordinate legislation is in force, the question arises, what is the timing of that subsequent action, and, in particular, if there is an equivalent function exercisable by central government for England, are or should they be exercised simultaneously? As with Commencement Orders, two operative dates may be distinguished: the date on which the Assembly acquires the function, and the date on which it exercises it. These dates may be the same as, or differ from, English only equivalents. Some of the possibilities may be depicted as follows, where A1-A3 are alternative dates on which the appropriate authority acquired the function, and E1-E3 are alternative dates on which it was exercised.

Jurisdiction              Acquisition                                               Exercise.

England ------------------- A ----------------------------------------- E -------------

Wales ------------- A1---- A2 ------- A3 ----------------- E1 --- E2 ----- E3 -----

The following two examples illustrate these points. The first shows the making of an order by the Assembly one month prior to central government making an order in respect of the equivalent provision (case E1: E). The second shows the making of an order by the Assembly six months after central government made an order in respect of the equivalent provision (case E: E3).

Wales: Countryside and Rights of Way Act 2000 (Commencement No 1) (Wales) Order 2001. 2001/203 (W.9): made 24 January 2001

England: Countryside and Rights of Way Act 2000 (Commencement No 1) (England) Order 2001. 2001/114: made 22 February 2001.

Example 2: later exercise by the Assembly: exercise of a power to exempt from rating on an additional class of plant and machinery under the Finance Act 1988

England: Validation for Rating (Plant and Machinery) (England) Regulations 2001, 2001/846: made on 8 March 2001 (came into force on 1 April 2001).

Wales: Validation for Rating (Plant and Machinery) (Wales) Regulations 2001, 2001/2357 (W.195): made on 26 June 2001 (came into force on the same day).

When a section requiring or permitting the Assembly to make subordinate legislation on a matter on which there is an equivalent function exercisable by central government, the question arises, is or should that legislation be the same as that made for England? Our research suggests that most of the instruments made by the National Assembly for Wales in their application to Wales are in fact very similar to those made by central government in their application to England only. Such coincidence may raise a number of questions. Some of these may have to do with the political independence of the Assembly in its implementation of the devolution settlement. Some may reflect what is no more than administrative convenience where the implementation is intended to be identical in the two territories. Not being privy to the decision within the Welsh Assembly Government as to whether the instrument is to be drafted in Cardiff, or a cut and paste from Whitehall, is not a matter on which we can comment. We estimate, however, that only about a quarter of the legislation made by the Assembly in 2001 was very different from that made by central government for England, though we have yet to undertake a full content analysis of all Assembly instruments.

Where the Assembly has functions to exercise that have equivalents for England, the following permutations in the law applicable in the two jurisdictions are, in summary, possible:

• the timing and content for both are the same
• the timing is the same but the content is different
• the timing is different but the content is the same
• both timing and content are different.

The Assembly is frequently required to consult other authorities as part of the exercise of a devolved function. Instruments may need to be made by several authorities acting together, either with consent, concurrently or jointly. This may also engage other devolved institutions. This is especially true in the field of agriculture. The following are examples:

• Pig Industry Development Scheme 2000 (Confirmation) Order 2001 SI.2001 No. 935: the Minister and the National Assembly act jointly, and with the consent of the Scottish Ministers
• Home-Grown Cereals Authority (Rate of Levy) Order 2002 SI 2002 No. 1461: the Secretary of State for Environment, Food and Rural Affairs, the Secretary of State for Northern Ireland and the National Assembly for Wales, acting jointly, and with the consent of the Scottish Ministers
• Horticultural Development Council (Amendment) Order 2002 SI 2002 No. 1676: the Secretary of State and the National Assembly for Wales, acting concurrently, with the consent of the Scottish Ministers

In section 1.2 we remarked on the fact that the TFOs and the post-devolution Acts transferring functions to the Assembly do so discretely. This is a principal cause of the difficulty that anyone who wishes to identify the full range of the Assembly’s functions will face. This need not always be so, as the following illustrate.

In the first place, GOWA itself provides two examples of the transfer of subject area competence.

Support of culture etc.

32. The Assembly may do anything it considers appropriate to support-

(a) museums, art galleries or libraries in Wales,

(b) buildings of historical or architectural interest, or other places of historical interest, in Wales,

(c) the Welsh language, or

(d) the arts, crafts, sport or other cultural or recreational activities in Wales.

Consideration of matters affecting Wales.

33. The Assembly may consider, and make appropriate representations about, any matter affecting Wales.

1. European Communities Designation Orders

   The European Communities (Designation) (No. 2) Order 2001 (2001 No 2555), the European Communities (Designation) Order 2002 (2002 No. 248) and the European Communities (Designation) (No. 2) Order 2002 (2002 No 1080) designate the Assembly in respect of the matters specified in Schedules to those Orders. These matters are expressed in terms of subject areas:

    

   2001 No 2555:

   Measures relating to the requirement for an assessment of the impact on the environment of projects likely to have significant effects on the environment in so far as they concern the use of uncultivated land or semi-natural areas for intensive agricultural purposes.

   The protection of waters against pollution caused by nitrates from agricultural sources

   2002 No 248

   The conservation of natural habitats and of wild fauna and flora, but not

   (a) measures for the purpose of implementing, or dealing with matters arising out of or related to, Community legislation regulating trade in species of wild fauna and flora; or

   (b) measures which, in the interests of conservation, concern the assessment of, and authorisation of, projects or plans likely to have a significant effect on natural habitats and habitats of species, unless a function relating to the authorisation of the project or plan, in the interests of any other matter, is exercisable by the National Assembly for Wales at the date of the making of this Order.
   

   2002 No 1080

   The implementation of the plans and programmes set out in the following documents –

   (a) the Welsh Office's Single Programming Document for Community Structural Measures in Rural Wales in respect of Objective 5b approved by Commission Decision No. C(95)4 of 6th January 1995,

   (b) the National Assembly for Wales' West Wales and the Valleys Objective 1 Single Programming Document 2000-2006 approved by Commission Decision No. C(2000) 2049 of 24th July 2000,

2. the National Assembly for Wales' Rural Development Plan for Wales 2000-2006 approved by Commission Decision No. C(2000)2932 of 11th October 2000,
3. the National Assembly for Wales' East Wales Objective 2 and Transitional Programme Single Programming Document approved by Commission Decision No. C(2001)657 of 26th March 2001,
4. the National Assembly for Wales' LEADER+ Single Programming Document for Wales 2000-2006 approved by Commission Decision No. C(2001)1379 of 2nd July 2001,

in so far as such implementation relates to the operation of the European Agricultural Guidance and Guarantee Fund.

5.2 Potential for Transfer by Subject Matter

It may be noted that unlike the discrete powers transferred to the Assembly under the Local Government Act 2000, section 2 transfers a general competence to local authorities.

Promotion of well-being Promotion of well-being.

2. (1) Every local authority are to have power to do anything which they consider is likely to achieve any one or more of the following objects-

(a) the promotion or improvement of the economic well-being of their area,
(b) the promotion or improvement of the social well-being of their area, and
(c) the promotion or improvement of the environmental well-being of their area.

(2) The power under subsection (1) may be exercised in relation to or for the benefit of-

(a) the whole or any part of a local authority's area, or
(b) all or any persons resident or present in a local authority's area.

3. In determining whether or how to exercise the power under subsection (1), a local authority must have regard to their strategy under section 4.

(4) The power under subsection (1) includes power for a local authority to-

(a) incur expenditure,
(b) give financial assistance to any person,
(c) enter into arrangements or agreements with any person,
(d) co-operate with, or facilitate or co-ordinate the activities of, any person,
(e) exercise on behalf of any person any functions of that person, and
(f) provide staff, goods, services or accommodation to any person.

(5) The power under subsection (1) includes power for a local authority to do anything in relation to, or for the benefit of, any person or area situated outside their area if they consider that it is likely to achieve any one or more of the objects in that subsection.

6. Nothing in subsection (4) or (5) affects the generality of the power under subsection (1).

Law Making in Wales: wales legislation online

Ron Davies famously described devolution as "a process not an event";⁷ 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".⁸ As conceived by GOWA, executive devolution meant that the "single legal personality"⁹ 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.¹⁰ 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."¹¹ 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.¹² 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 2002.¹³

2 Devolutionary Technique

Whatever the successes and failures of NAW’s deliberative process,¹⁴ its legislative product is confined, unlike the devolution settlements in Northern Ireland and Scotland,¹⁵ to secondary legislation.¹⁶ 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.¹⁷ 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;¹⁸ 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.

"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."¹⁹ 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)."²⁰ 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 1999.²¹

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.²²

The initial Transfer of Functions Orders have gradually been superseded by primary legislation as the means by which functions are transferred to the Assembly,²³ 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."²⁴ 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.²⁵ The accretion of its powers continues to be by discrete allocation, with no overall attempt being made to simplify their structure.

Leaving aside the major political question, should the National Assembly be given primary legislative powers,²⁶ 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.

"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."²⁷ 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.²⁸ Space does not permit an extensive consideration of these complex and highly significant constitutional documents;²⁹ 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.³⁰ 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.³¹ 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, para. 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.³² 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."³³ 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.³⁴ 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.³⁵

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% were "either unique to Wales or, where they paralleled similar legislation passed in England, involved significant differences in drafting reflecting Welsh circumstances."³⁶

In March 2002 Cardiff Law School launched a new website, Wales Legislation on-line: http://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 Lambert³⁷

2 Summarised in the Note to the Care Standards Act 2000 (Commencement No. 7 (England) and Transitional, Transitory and Savings Provisions) Order 2001 (2001 No. 2041; C.68).

3 Summarised in Welsh Statutory Instrument 2001 No. 2538 (W.213) (C.83): The Care Standards Act 2000 (Commencement No.6) (Wales) Order 2001.

4 The Commonhold and Leasehold Reform Act 2002 (Commencement No. 1, Savings and Transitional Provisions) (England) Order 2002, SI No.1912 (C.58).

5 Consultation for Plaid Cymru, Marie Navarro, December 2001.

6 Consultation for Plaid Cymru, Marie Navarro, December 2001.

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

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

9 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.

10 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.

11 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.

12 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, http://www.wales.gov.uk/.

13 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).

14 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).

15 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).

16 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.

17 The U.K. 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.

18 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."

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

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

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

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

23 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.

24 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.

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

26 National Assembly for Wales, Assembly Review of Procedure, op.cit; R. Rawlings, "Quasi-Legislative Devolution: Powers and Principles" (2001) 52 N.I.L.Q. 54-81.

27 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.

28 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.cit.

29 See further, R. Rawlings, "Concordats of the Constitution" (2000) 116 L.Q.R. 257-286.

30 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.

31 Children’s Commissioner for Wales Act 2001; see K. Hollingsworth and G. Douglas, "Creating a children’s champion for Wales?" (2002) 65 M.L.R. 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.

32 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.

33 Patchett, id.

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

35 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).

36 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.

37 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.