2. Dual, cooperative and organic federalism
2.1. Dimension 1: assignment of legislative competencies General concepts
Constitutional analyses of federalism refer to a number of terms or concepts that are not unambiguously interpreted. I shall first explain a few technical terms (though alternative definitions may have emerged), and subsequently apply them to our case studies.
Federal constitutions that provide for a large number of concurrentlegislative powers have an inbuilt tendency to cooperation. Federal constitutions that only specify exclusivefederal and/or exclusiveregional legislative powers tend to be closer to the dual end of the continuum. This is particularly so if the character of one or both of those lists is long and detailed. Concurrency should be contrasted with exclusiveness, as the central and regional govern- ments can act side by side in a given policy field.
Concurrent legislative powers come under many forms and guises.
Concurrent powers can be listed explicitlyorimplicitlyin the constitution. By
explicitly enumerating concurrent powers, a constitution clarifies that the federal andregional levels of government are authorized to operate in a particular policy field. Typically, the actions of one level of government take precedence over that of another level whenever norms that stem from different levels of government in a concurrent policy field contradict each other. Thus, concurrency implies a certain degree of hierarchy. In most cases the will of the central government prevails (‘federal paramountcy’; Watts 1996). However, where concurrent powers are listed explicitly, actions of the hierarchically superior government may require that certain constitutional criteria are met first.
Sometimes the way in which a constitution is phrased may lead to the emergence of a number of concurrent legislative powers, although these are notexplicitly listed as such in the constitution. This may be the case if the constitution (only) lists a number of competencies in which the centre may legislate. By implication, the regions are authorized to legislate in the same fields so long as the centre has not entered these domains. The opposite could also occur. The constitution may authorize the regions to legislate in a specific domain and allow the central government to do the same so long as the regions have not taken up their right to legislate. Once the central or the regional governments decide to legislate the same hierarchical principle as above applies. The implicitly concurrent character can apply to the entire catalogue of legislative competencies. Therefore, the conditionality require- ment which separates concurrent from exclusive legislative powers in con- stitutions that explicitly list the former (such as the German constitution) is generally missing from constitutions that do not formally distinguish between exclusive and non-exclusive legislative powers (such as the US constitution).
Framework legislation assumes a particular position within the group of concurrent legislative powers. Framework bills determine the legislative frame within which another tier of government is allowed to operate.
Framework legislation may be subject to conditions, preventing the level of government that is ‘setting the frame’ from hollowing out the residual legislative competencies of the other level. The more detailed a framework law, the less scope for supplementary legislative action. When the centre sets the frame, regions should be allowed to tailor centrally prescribed policy regulations to their own specific needs. If they live up to their name, framework laws result in legislative cooperation between the central and the regional levels of government.
The final notion that requires clarification is that of the residual powers.
Residual legislative powers are those powers that are not explicitly listed in the constitution. Usually a ‘residual power clause’ clarifies the level to which they belong. There is a clear connection between the origins of a federation and the allocation of the residual powers. For instance, if a federation emerged as the result of a ‘coming together’ of previously autonomous
entities, the constituent assembly is likely to determine the powers of the newly established federal centre. Consequently, the residual powers remain under regional control. Where regionalization occurred as the result of devolving legislative powers to newly established or empowered regions, the opposite is more likely. As I will demonstrate below, the reality is often more complex.
In the following paragraphs, I will apply the above insights to our case studies. The section pays attention to the methods of allocating federal/
regional competencies, but it does not yet analyse whichpowers are assigned towhich levelof government and why. These questions will be answered in Chapter 4.
Applying general concepts to our case studies
Switzerland, Germany and Austria. Reflecting the coming-together nature of Swiss federalism, Article 3 of the Swiss constitution stipulates that the can- tons remain sovereign, ‘to the extent that the federal constitution has not limited their sovereignty and exercise all those rights, which have not been transferred to federal power’. Hence, the residual power clause benefits the regions. Yet, the Swiss constitution lists federal alongside cantonal legislative responsibilities (cf. Title 3, Chapter 2).
When carving out federal and cantonal legislative competencies, we find that the Swiss cantons are left with only a limited number of areas in which they have fulllegislative autonomy (e.g. policing and education up to the level of university education are prominent examples). More than half of the constitutionally assigned policy spheres give a de facto legislativemonopoly to the centre (Wälti 1996: 120–1). In addition, in a large number of policy spheres (e.g. agriculture, electricity, infrastructure and trade policy, civil and penal law) legislative powers are genuinely sharedbetween the federal and cantonal levels. The sharing of powers does not imply that the federal level sets a federal frame within which the cantons may enact supplementary legislation. Rather it means that the centre and the cantons each regulate different aspects of a policy.
Although they have not emerged as centripetal federations, the German and Austrian constitutions also assign the residual powers to the regions.
Article 70 of the German Basic Law stipulates that the ‘the regions have the right to legislate insofar as this constitution does not confer legislative power on the federation’. Similarly, Article 15 of the Austrian constitution mentions that ‘in so far as a matter is not expressly assigned by the federal constitution to the federation for legislation or also execution it remains within the regions’ autonomous sphere of competence’.
German federal legislative powers are divided into two categories: exclusive andconcurrentlegislative powers. In the former, the regions can only legislate insofar as a specific federal law authorizes them to do so. In the latter, the
regions can legislate, ‘as long as and to the extent that the federal legislator does not do so’ (federal paramountcy). Federal norms prevail in the case of conflicting federal and regional legislation in the concurrent field. In this sense, the principle Bundesrecht bricht Landesrecht (‘federal law breaks regional law’) applies. However, federal actions must contribute to establish- ing ‘equal living conditions’ or to preserving legal and economic unity. The list of exclusive legislative powers comprises 11 subject headings. The list of concurrent legislative powers is much longer. At present it lists 27 policy domains. In practice, the federal legislator has had little difficulty in enter- ing all of these concurrent legislative areas. Usually it justified its actions by stating that they contribute to the constitutionally required goal of realizing a ‘uniformity of living conditions’. The German Constitutional Court (GCC) has mostly endorsed that point of view whenever federal concurrent laws became the subject of judicial litigation (Blair 1981; Blair and Cullen 1999).
However, in a recent case the GCC denied the federal government a right to regulate certain aspects of health care policy for elderly people, despite the fact that the federal government invoked its actions by listing the ‘unifor- mity of living conditions clause’ (Kramer 2005: 176).
Next to general concurrent powers, the German Basic Law (constitution) authorizes the federal government to introduce framework billsin seven sub- ject areas. Framework bills only contain detailed provisions in exceptional cases. Framework and general concurrent bills have emerged in areas that previously belonged to the exclusive legislative domain of the regions. In this sense, their more frequent occurrence illustrates the centralization of the German federation, at least in the period between 1949 and 1990. Since 1969, the constitution has made further reference to ‘joint-decision-making tasks’. These ‘tasks’ refer to a set of programmes which authorize the federa- tion to coordinate policy areas that previously fell under exclusive regional control (e.g. coastal planning, construction of university hospitals). Regions remain involved in the overall planning of these programmes, including part of their financing and their full implementation.
The Austrian constitution has some aspects in common with its German counterpart, but in legislative terms it is an even more ‘centralized’ federa- tion. The Austrian constitution makes reference to a large number of federal legislative powers. Unlike the German Basic Law, the Austrian constitution does not explicitly mention the concurrent nature of these powers. The list of exclusive federal legislative responsibilities is more extensive and detailed than the comparable list in the German constitution. Twenty-four subject areas are within the exclusive legislative remit of the centre; six areas are designated as federal ‘framework bills’. The latter leave the regions with a very limited scope of discretion. They merely provide the regions with an opportunity to set ‘implementing laws’ for federal legislation. Finally, a long and detailed article carves out federal and regional responsibilities in the field of education. Education is a competence matter which, unlike the position
in most other federations, is primarily federal in character. The residual pow- ers are allocated to the regions, but other than that the constitution does not explicitly list in which areas the regions may legislate. Sometimes, it does this indirectly by specifying to what extent certain regional policy areas are subject to federal legislative intrusion. For instance, Article 15 mentions that in cultural matters (theatres, cinemas, public shows and performances) the federal level retains legislative responsibility for securing the public safety of such events, prohibits regional intervention into ‘technical operation, build- ing police, and fire police considerations’ and in participating in the initial stage of the granting of licences as stipulated by such federal legislation.
Consequently, the regions are responsible for other aspects of cultural policy (they decide on the content of cultural policy, for instance, by determining which companies to subsidize).
Belgium, Spain and the United Kingdom. In line with the centrifugal character of Belgian federalism, Belgian policy-makers have kept the residual powers federal. The 1992–93 constitutional rewrite (which formally turned Belgium into a ‘federal state’) opened up the possibility of devolving the residual powers to the regions. Such a move requires adopting a constitutional article which lists the exclusive legislative powers of the centre first. Thus far, no such article has been endorsed (and no attempt has been made to draft one).
This illustrates the lack of agreement on where the Belgian state is heading and on which powers should be kept under federal control.
The Belgian constitution does not list the powers of the regions and com- munities in great detail. The constitution lists the core community compe- tences (Arts 127–9), but it does not even touch upon the competencies of the regions. However, this does not mean that the Belgian constitution (broadly defined) lacks a regional and community competence catalogue. Rather, community and regional competencies are listed in ‘laws adopted by a spe- cial majority, of the type listed in Article 4 of the constitution’. Such ‘special majority laws’ can only be approved with a two-third federal parliamentary majority, comprising a majority among the Dutch andthe French-speaking MPs in both chambers of parliament (House and the Senate). The Belgian Constitutional Court can annul any federal or regional law which violates the competence dividing rules that are specified in these ‘special majority laws’. Therefore, these special majority laws should be considered as a de facto part of the federal constitution. Perceived accordingly, the Belgian constitution leaves us with a very long and detailed description of community and regional legislative competencies.
The Belgian constitution does not explicitly list any concurrent legislative powers. One exception pertains to federal income tax legislation, a concurrent power with federal paramountcy (Alen 1995). Leaving aside this particular example, Belgian federalism does notprescribe a hierarchy between federal and regional legislative norms. Federal and regional laws stand on an equal
footing and are subject only to the federal constitution and the special majority laws. In this sense, Belgium tends strongly towards the dual end of the continuum. However, as I will discuss in greater detail in Chapter 6, the levels of required interregional or federal-regional cooperation are larger than is often assumed. The special majority laws frequently assign only aspects of a legislative policy field as regional (for instance, agriculture but not food quality control). By implication, the federal government retains control over adjacent aspects. This necessitates intergovernmental contact if coherent policy-making is the objective (Poirier 2002).
Nowhere is the method of distributing legislative competencies between the centre and the regions more complicated and ambiguous than in Spain. Such complexity stems in part from the lack of agreement on where the Spanish state should be heading: a federal, a regionalized or unitary decentralized state? No constitutional article expresses this ambiguity more clearly than Article 2: ‘The Constitution is based on the indissoluble unity of the Spanish Nation, common and indivisible country of all Spaniards andrecognises the right to autonomy of the nationalities and regions of which it is comprised and solidarity amongst them.’ The consti- tutional division of central-regional competencies was bound to create considerable confusion. Franciso Rubio Llorente, who as secretary of the Spanish Parliament (Cortes) took part in the drafting process of the con- stitution, described it as ‘the most serious of the many problems the constitution had to resolve’ (Rubio Llorente 1988b: 263). The matter could not be postponed to a later date: whilst the drafters were negotiating a Spanish constitution, the Basque separatist movement ETA committed several terrorist attacks. The constitutional drafters feared that not offering any concessions to the nationalists would lead to more widespread violence (Rubio Llorente 1988b: 264).
The Spanish constitution contains a double catalogue of competencies:
unlike the Belgian constitution, it enumerates the competences of the centre (‘the state’ in the wording of the Spanish document) and the regions. Article 149 of the Spanish constitution lists no less than 32 areas of legislative compe- tence in which the centre remains exclusivelyresponsible. In this sense, the condition for allocating the residual powers to the regions that is absent from the Belgian constitution is present in the Spanish text. Matters which do not belong to the state shall belong to the regions by virtue of their specific statute. Regional autonomy stems from two sources. Next to a mini- mum set of regional powers (Article 148 constitution), each of the regions also has a ‘Statute of Autonomy’. The Statutes of Autonomy must contain, amongst others, ‘the competencies assumed within the framework of the [central] constitution and the bases for the transfer of the corresponding services to them’ (Article 147.2d).
Article 148 lists 22 subject headings in which the regions may(thus does not a priori have to) assume responsibilities. De facto, many of these
competencies are not exclusive, but shared, since the Statutes of Autonomy have left the central parliament with some room for working out framework legislation in these matters. Arguably, the Spanish centre has retained a stronger input than just setting the legislative frame for some of these poli- cies. The veto powers which the regions can employ in the centre are too weak to prevent this from happening. Conversely, the regions frequently implement central legislation as they see fit, placing them on a collision course with the centre (Börzel 2002: 94).
Article 148 does not rule out the expansion of the regional list of compe- tencesbeyondthe number that is already enumerated in that article. In fact, by amendment of their Statutes (a process that always involves double, possibly triple, consent: the national and regional parliaments as well as the affected regional electorate), regions can enter competence areas which the constitution assigns as ‘exclusively central’ (Article 149). Regions have not developed along the same path of autonomy and have not each assumed the same set of legislative competencies (either drawn from the list of ‘poten- tially’ regional powers or from the list of ceded exclusive central powers). In sum, the constitution at best provides a framework within which the regions can organize their competencies but will face the competition of the central state. Sometimes, such competition occurs in areas in which the constitu- tion may be considered as regional but in practice ends up being shared.
Sometimes, competition emerges in competence spheres which the consti- tution assigns as exclusively central. This ambiguity leads to a large number of ‘concurrent legislative’ areas without explicitly determining who prevails in a situation of conflict. As I will discuss in section 4, the Spanish Constitutional Court has played an important role in clarifying these matters. However, ambiguity is not without its advantages. By keeping the allocation of powers and responsibilities open to negotiation, the Spanish process of devolution contained a high degree of inbuilt flexibility. In this way a definitive settlement on the scope of regional autonomy was foreclosed and constitutional asymmetry was almost made inevitable. If constitution makers had sought to come up with a more definitive settlement in 1978, the constitutive assembly may well have collapsed. Even the compromise text was not approved by the Basque Country, in contrast with that region’s Statute of Autonomy which emerged a few years later.
Finally, the UK is the odd fellow among our cases. First, the British devo- lution settlements only pertain to Scotland, Wales (and Northern Ireland).
Second, of these three regions, only Scotland and (until its autonomy was suspended) Northern Ireland had legislative powers. As I will discuss later, Wales has received executive autonomy only. Third, there is no supreme, written ‘British constitution’ in the strict sense of the word. The powers of the devolved authorities are listed in central parliamentary Acts, that were approved (and can be amended by) simple majorities. The parliamentary Acts which determine the autonomy of the devolved authorities are known
as the Scotland, Wales and Northern Ireland Acts. Fourth, the principle of conferring regional powers is different between each of these cases. The Scotland Act specifies the legislative areas in which the nationalparliament remainscompetent, that is, after devolution. The Wales Act specifies the exec- utive competencies in which the Welsh Assembly gains competence after devolution. The method of listing central powers in the Scotland Act is somewhat at odds with the logic of devolution. One would expect the centre to list the legislative powers which it devolves and to keep control of the residual powers. However, the Scotland Act is so detailed in its provisions – in particular section 5, listing the reserved matters for the centre – that a double list of competencies almost emerges when the list of exceptionsto these central powers is taken as a list of de facto regional legislative powers.
The method of allocating legislative powers is similar for Northern Ireland, but the Northern Ireland Act also prescribes detailed mechanisms of power- sharing for the way in which these devolved matters have to be exercised.
2.2. Dimension 2: administrative versus legislative federalism