The final piece in this mini-series examining decentralisation within Wales after independence looks at perhaps the thing you’ve been waiting for – how many federal states, how many elected members etc.
In A Federal Wales III, I’d settled on the name “province/talaith” for the name of the devolved/federated regions – though that’s just a name for the sake of having one.
Making laws in the provinces
Under any form of legislative devolution or federalism, the provinces would be able to make primary legislation (Bills & Acts) in any area devolved to them or lower tiers of local government.
Similarly, they would have fairly broad regulation-making powers and would be able to create new criminal offences in devolved policy areas – much like the Senedd can despite criminal justice not being devolved to Wales. This usually won’t go much further than setting fines and other civil sanctions rather than imposing prison sentences.
The procedure for making laws would likely be similar to that of the Senedd. In short, that means:
- A debate on the general principles following committee evidence gathering (Stage 1).
- Amendments in the responsible committee (Stage 2).
- Amendments by the provincial assembly as a whole (Stage 3).
- Final vote (Stage 4) after which there’s either a report stage for extra amendments or the Bill goes to the Head of State to become law.
You would expect most provincial laws to be put forward and tabled by provincial commissioners. Though as in the Senedd, there ought to be opportunities for backbench members to table Bills.
The body of each province’s laws could be codified from the start as a Provincial Code – much in the same way US states have state codes. The code would be chaptered by subject/policy area and would include any relevant laws in devolved areas made by the Senedd or UK Parliament before independence.
Any Bill tabled in the provincial assembly would therefore amend the Provincial Code to whatever’s desired.
If you want examples of the kind of laws that could be introduced under this system – based on the powers you would expect to be devolved to the provinces (A Federal Wales III), it could include:
- Enhanced sustainability requirements in the planning system.
- Introducing a three-tier school system (primary, middle, high school).
- Creating a publicly-owned provincial bus operator or authorising a new light rail system.
- Granting everyone in the province a right to suitable housing and tightening rules on minimum standards for emergency accommodation.
The Senedd making laws in devolved policy areas
You would expect most laws in Wales to come from the Senedd. I doubt a provincial assembly would propose any more than perhaps a half dozen new Bills a term.
Most of the timetable in the provincial assemblies would be taken up managing and scrutinising day-to-day services. Law-making powers would only be there to ensure that if the provincial assemblies need to make wide-ranging reforms as part of an elected mandate or manifesto commitment they’re able to do so.
You would expect the Senedd and Welsh Government “to not normally” propose new legislation in policy areas under the control of the provinces – as the UK Parliament is supposed to do concerning the devolved parliaments.
There will, of course, be instances where the Senedd and Welsh Government sees a need to make laws in these areas – for example: to close a legal loophole, to meet an international obligation or to fulfil a manifesto commitment.
In an ideal situation, the Welsh Government and Senedd will have discussed their legislative plans with the provinces or local government long before any white paper or Bill that affects them is introduced (A Federal Wales III). This means any issues can be ironed out beforehand.
If there’s unanimous agreement between the Welsh Government and provincial executives on a need for a policy change, then a Bill co-drafted with the Welsh Government could be introduced in each of the provincial assemblies – though this carries a risk that it won’t pass in all of them or will be amended differently in each province.
If there’s no unanimous agreement – or the Welsh Government wants to assure themselves that the change needs to be introduced chapter and verse – then the Welsh Government would be able to introduce a Bill in the Senedd but would need to seek permission from each of the provincial assemblies before the Bill reached an amendment stage.
In any federal or devolved system, laws made by the national legislature are usually supreme and override any state/devolved law that conflicts with them; the UK has the principle of parliamentary sovereignty, the United States has its constitutional Supremacy Clause and the likes of Canada have similar doctrines.
That would apply in a decentralised Wales too if a provincial assembly refuses permission to a new Senedd-made law – though there are perhaps two ways to approach it.
- A “Veto” – If a provincial assembly withholds consent from a Senedd-made law in a devolved policy area, then they veto it becoming law in that province. It would, however, still become law in any province that grants consent. This upholds the principle of consent but could undermine the Senedd’s authority. The Senedd could be given the power to override a provincial veto by a supermajority vote but that risks being too confrontational.
- A “Forced Rethink” – Withholding consent would force a rethink or reconsideration of concerns raised by the provincial assemblies, effectively freezing the law-making process in the Senedd. This could include additional amendments, sunset clauses, negotiated “opt-outs” or properly addressing concerns over issues such as financing changes to the law at a provincial level.
The arrangements for making laws in devolved/provincial affairs could be formally set out in a compact or alike, being policed by a Supreme Court.
Law-making at municipal level
The present local councils can make local laws – by-laws/byelaws (what Americans would call ordinances) – to set rules in specific areas. They’re very rarely introduced and are often only done so as a last resort.
Under a system of devolution or federalism, however, each municipality could have its own Municipal Code, codifying all relevant legacy byelaws, rules, procedures and any other legislation applying in their particular area. This would be combined with a council’s constitution.
Municipal councils could be granted additional byelaw-making powers by the Senedd or provincial assemblies.
Any new major policy change would have to be tabled in the municipal council as a draft byelaw. This could include, for example:
- Requiring all licenced premises in a municipality to provide step-free access.
- Setting new rules on outdoor seating when positioned on a highway or pavement.
- Banning dogs from sports pitches.
- Requiring all new housing developments in the municipality to have Welsh language street names.
- Placing stricter requirements on developers to provide adequate public open space.
The process of making a byelaw could be changed to be similar to the Senedd or provincial assembly: debate on general principles and fact-finding; amendment by committee; amendment by the council; final vote.
Each Municipal Code would need to changed every time the Senedd or respective Provincial Assembly passes a new law in a policy area controlled by the municipal councils.
A municipality’s legal counsel could apply to the Attorney General (or equivalent) for an exemption if the municipality already has a provision in its Code that is identical or exceeds the minimum requirements of the new law.
