2. Dual, cooperative and organic federalism
2.2. Dimension 2: administrative versus legislative federalism General concepts
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
departments or agencies administer most of the regional laws, the term legislativefederalism is used. Where the regional implementation of federal law is the rule, rather than the exception, cooperation is bound to be the rule as well. In this sense, administrative federalism pushes federal or regionalized states closer to the organic end of the continuum.
There is some connection between the first and second dimensions of the cooperative continuum. When one level of government sets the legislative frame of a policy but allows the other level to take supplemen- tary legislative action, it is also more likely to rely on that level for imple- menting that frame. However, this need not necessarily be the case.
Particularly in multinational states, such as Spain, the centre may like to implement, and not merely oversee, the legislative framework which it pre- viously adopted. If badly coordinated, the consequence may be policy duplication, administrative competition between the relevant central and regional administrative services and judicial litigation to sort out who is entitled to act.
Applying concepts to our case studies
Switzerland, Germany and Austria. The three ‘Germanic’ federations share one important attribute: to a large extent the federal legislator depends on the cooperation of the regions for the implementation of its policies.
For instance, Article 46 of the Swiss constitution specifies that ‘the cantons shall implement federal law in conformity with the constitution and the (federal law)’ but also that ‘the Federation shall leave the cantons as large a space of action as possible, and shall take their particularities into account … as well as … the financial burden that is associated with imple- menting federal law by leaving sufficient sources of financing to the can- tons, and by ensuring an equitable financial equalization’. The Swiss, unlike the German constitution, is not always explicit in prescribing which federal legislative matters must be implemented by the cantons. For instance, in the case of environmental policy (Article 74, paragraph 3), cantonal implemen- tation is explicitly envisaged. In other areas cantonal implementation is specified in a simple federal statute. Overall, the Swiss centre plays a limited role in implementation. Defence, monetary policy, customs and federal taxes (including VAT and federal fees) are the only subject areas for which the federal government has developed an administrative apparatus of its own (Wälti 1996: 122). Cantons often only agreed to the regulatory central- ization of a particular policy if they retained a dominant role in its imple- mentation or if they retained a right to formulate secondary legislation in such matters. They also wished to retain control of the means (revenue- raising) to finance the implementation of federal law. Cantons have not harmonized the administrative instruments for implementing federal legis- lation either. This has lead to policy divergence in the implementation of federal law (Wälti 1996; Vatter 2004).
Also Germany displays a pattern in which most federal legislation is imple- mented by regional administrations. The ‘administrative’ nature of German federalism has a long tradition which goes back to the early days of German federalism. Even today, only few federal matters are administered by federal administrative departments or agencies. These are the Foreign Service, fed- eral taxes, federal waterways and shipping, transregional social insurance institutions involving more than three regions (for instance, the federal employment service), defence, railways, federal waterways and the central bank. The regions implement federal legislation which does not pertain to the above subject matters. Thus, although the subject areas in which the regions can legislate (and implement) are limited to culture, policing, educa- tion and some aspects of regional economic development, the subject areas in which the federations legislate andimplement are limited in scope too.
The German constitution makes a distinction between federal legislation which the regions implement as matters of their own concernoras agents of the federation. The extent of federal supervision, but also of federal co-financing is lowest when the regions implement federal law as matters of their own con- cern. Any corrective steps in the case of perceived non-compliance by one or several regions must be agreed by the second chamber. The Bundesrat is sup- posed to act as the collective springboard of regional interests at the federal level. When the regions operate as agents of the federation, the federal gov- ernment may issue general administrative rules, which regulate the uniform training of civil servants and harmonize their salaries. Federal supervision not only entails the lawfulness but also the appropriateness of the actions taken, and the federal government has a right to instruct the highest regional authorities who must comply with the instructions. Also in this case, federal general administrative rules require the consent of the federal second chamber. Likewise, ‘joint tasks’ require the consent of the federal second chamber (and the de facto unanimous regional consent of the various planning committees which prepare and implement them – see further Scharpf 1988, 1994). The federal government commits itself to the payment of at least half of their expenditures.
Austria is the most centralized of the three Germanic federations. The Austrian constitution contains a list of 17 areas in which the federal level is authorized to legislate and implement. However, for each of 17 such desig- nated areas (including for instance cost-intensive posts such as public health) exceptions are listed. Furthermore, Article 11 contains six subject areas in which the federal level legislates, but the regions implement. For a further six subject areas which are listed as ‘federal framework laws’ regional implementation is required. It includes important matters such as social wel- fare policy (including maternity, infant and adolescent welfare and the administration of hospitals), public utilities (electricity) and labour relations in the agricultural and forestry sector. Federal ministries leave the regions with little discretionary powers in choosing the methods for implementing
federal legislation (Fallend 2003: 22). In this sense, the Austrian regions implement federal law, more ‘as agents of the federation’, than as ‘matters of their own concern’. As I will discuss at greater length in Chapter 6, the Austrian second chamber does not provide the regions with sufficient input in overseeing the implementation of federal law.
Belgium, Spain and the United Kingdom. States which have adopted a federal or regionalized structure as a means to hold together a multinational polity are more likely to opt for a ‘legislative’ than an ‘administrative’ form of federalism. Minority nations may be eager to acquire legislative and admin- istrative responsibility in policy fields which a federal government has agreed to devolve. For some time though, the regions may not assume full administrative responsibility in devolved matters. For starters, regional admin- istrations cannot be established from scratch. Administrative units that were controlled by the centre may continue to exist and only gradually come to serve different political masters. In addition, the centre may be reluctant to give up its administrative control at once. For some time then, regional administrations may face the competition of federal administrative units.
Possibly, the centre may seek to utilize its control of sub-regional units such as provinces as a means to ‘shadow’ the activities of the regions. In Spain, for instance, the provinces had accumulated some legitimacy as decentralized structures of the central state before devolution kicked in. Although such sub-regional structures exist in other federations as well, their control by the regional levels of government is normally beyond doubt.
Belgium is the multinational state in which creating regional administra- tions by splitting up formerly central departments was easiest to accomplish.
Unlike in Spain or the UK it is difficult to identify a Belgian ‘majority nation’.
By 1978, all major political parties had split along linguistic lines. Therefore, the incentives for retaining parallel central administrative units with the pur- pose of ‘shadowing’ regional agencies were relatively weak.
Belgian federalism is also quite ‘legislative’ in nature. The federal constitu- tion or the rules dividing competence do not provide a single federal legisla- tive power for which regional implementation is required. Similarly, regional legislative competencies are implemented by regional administrative depart- ments or agencies. Most of these were carved out of existing central depart- ments. Usually, the latter were neatly divided between Dutch- and French-speaking sections when legislative devolution kicked in. For instance, when education policy was first devolved, the Dutch- and French speaking sections of the education ministry gained responsibility for implementing education policies of the Flemish and French Communities. Flemish and French Community administrations gradually adopted divergent human resource policies (De Rynck 2002), and the Flemish administration has been influenced more strongly by Anglo-Saxon principles of ‘New Public
Management’. Despite these interregional divergences, all the regional administrations have retained certain practices that were prevalent in the unitary Belgian setting. For instance, like their compatriots at the federal level, regional ministers are surrounded by strongly politicized ministerial cabinets, rather than by a college of top career civil servants (Brans and Hondeghem 1999).
The federalization of Belgium has not rendered the so-called provinces obsolete. However, provincial administrations do not partially compete against or overlap with the devolved regional administrations. Rather, they operate as functionally decentralized bodies with responsibility in a rela- tively limited number of competence areas.2 Following the most recent round of constitutional reforms (2001), provinces have now become func- tionally decentralized bodies under the authority of the Flemish and Walloon regions. There is no distinct province in Brussels. Its provincial competencies are directly assumed by the Brussels Capital Region (Vlaamse Provincies, kerntakendebat, 2003).
As in Belgium, the implementation of regional law by regional adminis- trative departments should be the standard practice in Spain. Unlike Belgium, however, the Spanish state has not transferred all the administra- tive field services that were tied to devolved legislative matters (Börzel 2002).
Since the regional authorities nonetheless established or expanded adminis- trative services in the newly devolved areas, administrative duplication and intergovernmental friction has been the result. Decentralized central depart- ments (administración periférica del Estado) exist alongside regional adminis- trative departments. For instance, between 1982 and 1986, when all the regions assumed some legislative and administrative powers, 360,000 civil servants transferred from the central to the regional governments. The regions recruited some 40,000 civil servants themselves. By 1992, the total number of transferred civil servants exceeded 430,000. However, in spite of the expansion in regional staff, the number of central civil servants was not reduced accordingly (Heywood 1995: 156).
As in Belgium, Spanish provinces operate as intermediary layers of decentralization. Their history predates that of the regions. They are sand- wiched between the regional and local tiers of government. Once the regional structures fell into place, it was assumed that provincial adminis- trators would become answerable to the regional authorities for policies in which the regions can regulate. In practice, the provincial administrators still fell under the authority of the central ministry of public authorities and a director-general supervised by a central minister (Newton and Donaghy 1997: 112). Central governments have also continued to appoint civil governors, recently renamed as assistant provincial delegates of the central government. They act as the highest central delegates at the provincial level. They head the provincial administrations and are in control of state
police and security forces at provincial level (Newton and Donaghy 1997:
114). Next to civil governors, the central government appoints a central government delegate (delegado del gobierno) to each of the regions. These central ‘watchdogs’ count as the highest central representatives in the regions, and in official meetings they only rank second to the presidents of the regional executives. They seek to bridge central and regional administrative interests.
The civil governors (assistant provincial delegates) are directly answerable to the central government, not to the presidents or executives of the regions.
Finally, in Britain, Scottish (and so long as it applied) Northern Irish devolution are legislative in character.3 In contrast Welsh devolution is exclusively administrative. However, long before devolution was imple- mented, the centre established its own field administration for implementing UK policy for Scotland and Wales.
Scotland received its own Office (and Secretary of State, i.e. minister in the British Cabinet responsible for Scottish Affairs) as early as 1885. In areas such as agriculture, education, fisheries, health, local government, prisons and poor relief, Scotland had known a strong tradition of administration by independent boards. In the twentieth century these professional boards would give way to a strengthened Scottish Office and Scottish civil service.
Following devolution in 1999, the Scottish Office became the Scotland Office, still headed by the Secretary of State for Scotland (Rhodes et al. 2003:
83). A majority of its civil servants was transferred to the Scottish civil ser- vice, which turned into the implementing arm of legislative policies adopted by the Scottish Executive and First Minister.
A Welsh Office and Secretary for Wales did not come into being until 1964.
Although the Welsh Office gradually increased its authority, it never obtained the discretionary powers of the Scottish Office in issues such as health, education and agriculture. Following devolution in 1999, the Welsh Office became the Wales Office. Unlike the Scotland Office it remains a more centrally controlled administrative service. It is responsible for implement- ing policies in which the Welsh Assembly gained the power to enact supple- mentary or secondary ‘legislation’. Technically speaking, that autonomy is
‘executive’ only. In reality, one could argue that the Welsh Assembly must act within a legislative frame that is set by Westminster. Because of this complex (and arguably unsustainable) arrangement, the Welsh Secretary has retained a more important role as a liaison officer between the central and regional levels than his Scottish counterpart. Nevertheless, after devolution the combined supporting staff for both regional secretaries was reduced to some 110 civil servants (Hazell 2000b: 153). Since June 2003, the secretaries for Scotland and Wales have been made a part of a newly created Department of Constitutional Affairs. The Scotland and Welsh Office retain a separate status, and the secretaries are still full members of the British Cabinet (albeit that they may combine their ministerial functions with other portfolios).