THE CONSTITUTIONAL
DIVISION OF
POWERS IN
GERMAN FEDERALISM
(a) The Division of Legislative Competences
The Basic Law states that residual power lies with the Länder,
i.e., unless otherwise specified, governmental powers and functions
are exercised by the Länder (Article 30). Areas "otherwise
specified" are the exclusive legislative powers of the federation
(Article 73), areas of concurrent legislation (Article 74), areas
of federal framework legislation (Article 75) and joint responsibilities
(Articles 91a-b). All else falls under the exclusive legislative
power of the Länder.
The Scotland Bill reserves legislative rights in certain
policy fields for Westminster, leaving the residual power with
the Scottish Parliament. The scope of the residual (or devolved)
power is wide, though the list of reserved (and therefore devolved)
powers may be revised.
However, "all else" does not amount to much. The
exclusive powers of the federation include foreign affairs, defence,
citizenship, migration, currency, transport and communications
and aspects of policing. Concurrent and framework legislation
covers 37 separate legislative fields. Although the presumption
of residual power of the Länder applies here, the federation
has made extensive use of the possibility given in Article 72
of the Basic Law to claim the power to legislate in those fields.
Article 72 sets out a "national interest" test, which
justifies federal legislation wherever it is deemed necessary
to maintain "equivalent living conditions" throughout
the federation. The equivalence clause has been described as the
"mission statement" of German federalism and has been
invoked so extensively that there remains little scope for the
Länder to legislate in the fields covered by concurrent or
framework legislation.
There is no provision for concurrent or otherwise mixed
legislative responsibilities. Nor is there an overt requirement
that the Scottish Parliament's legislation be shaped in regard
to any notion of maintaining "equivalent" living conditions
throughout the UK.
The concern to maintain equivalence also underlay the joint
responsibilities of Articles 91a-b (introduced in 1969-70), which
allow federal participation in the joint planning and financing
of a range of high expenditure policy fields originally the preserve
of the Länder, but where the Länder were considered
insufficiently able to guarantee the delivery of equivalent standards
of public services across the federation.
The net effect is that the residual power of the Länder
in legislation now has a marginal scope, with exclusive legislative
competences remaining only in aspects of policing, education,
media regulation, regional economic policy, and local government
structure.
The different configuration of the residual power in the
UK-Scottish relationships means that the legislative autonomy
of the Scottish Parliament will be far more extensive than that
of the German Länder.
(b) Administrative Competence
The residual power also extends, though, to administration.
Unless otherwise specified in the Basic Law, the Länder implement
federal legislation with considerable discretion (Article 83).
Federal administrative authorities exist only in areas covered
by exclusive federal legislation (and even in some of these, administrative
authority is delegated to the Länder).
The Scottish Executive will be responsible for administering
legislation in some fields of Westminster's reserved powers and/or
in some EU matters.
This principle of Länder administration has been far
less subject to erosion by federal incursion than the residual
power in legislation. Its scope has also widened more or less
in proportion to the extent that the federation has taken on additional
legislative competences since 1949. The relationship is a straightforward
one—the more federal legislation, the more Länder administration—and
establishes the primary division of competence between federation
and Länder as a functional one with the federation
responsible for most legislation and the Länder for administering
most of that legislation.
The primary division of power between Scotland and Westminster
remains, though, separated legislative responsibility for their
respective devolved and reserved policy fields.
(c) Länder Participation via the Bundesrat in the Federal
Legislative Process
This relationship has further implications concerning the
role of the Bundesrat. The Bundesrat comprises representatives
of the governments of the Länder (which have between three
and seven votes roughly proportional to population size) and acts
as the second chamber in the federal legislative process. It formally
guarantees Länder participation in the federal legislative
process (Article 50). In comparative terms it is a strong second
chamber, possessing an absolute veto power over wide areas of
federal legislation, and a suspensive veto over the remainder.
Aside from constitutional legislation, the absolute veto typically
applies to bills which affect the Länder in their administrative
role. This applies to roughly 60 per cent of all federal bills.
The relationship noted above can therefore be extended: the more
federal legislation, the more Länder administration, the
greater the scope of the Bundesrat absolute veto.
No formal point of access for the Scottish Parliament
or Executive in the Westminster legislative process is foreseen.
The scope of the role of Scottish Westminster MPs, which will
no doubt develop strong informal links with the Scottish Parliament,
is an area of some controversy and may be reduced in the future.
Current proposals on House of Lords reform have not extended to
discussion of a Bundesrat model, though such a concept occasionally
surfaces as a longer term consideration in the wider constitutional
reform debate the present government has set in motion.
(d) The Länder and EU Policy
The constitutional division of power outlined above was established
and developed in a domestic political context. It became skewed
as the scope of European-level competence with direct effect in
the member states of the EU widened, especially after the mid-1980s.
European policy was regarded as foreign policy and as a preserve
of the federation even though both the process of transferring
sovereignty and the subsequent exercise of transferred sovereign
powers by European institutions eroded both the legislative and
administrative competences of the Länder. Given the privileged
access of the federal government to the European-level decision-making
process—most notably in the Council of Ministers—this
was accompanied by a de facto transfer of competence from
Länder to federation.
Relations with the EU are a reserved power of the UK parliament
and government. It is, though, recognised in all the current proposals
for establishing devolved units that the exercise of devolved
powers necessarily requires some form of access to the EU policy
process.
After a protracted campaign, the Länder secured a number
of constitutional amendments in 1992 which addressed these problems.
Essentially they extended the rights and role of the Länder
and in domestic politics to European policy matters (Articles
23 and 50). The most significant aspects of these rights, which
are formally exercised through the Bundesrat, are:
(a) that the Bundesrat can bind the federation to represent
its views in the EU in matters which impinge internally on their
exclusive legislative competences or their administrative powers;
and
(b) that a Bundesrat-nominated Länder representative
leads the German delegation in the Council in discussion of matters
"essentially" affecting exclusive legislative competences
of the Länder.
In the case of Scotland, the level of access under consideration
is the highest, extending from Scottish Parliament scrutiny of
EU legislative proposals, through (as yet unspecified forms of)
co-ordination between the UK government and the Scottish Executive
on EU matters affecting areas for which the Scottish Parliament
is responsible, to Scottish Executive Ministers speaking for the
UK in Council of Ministers meetings.
Excursus: The Role of the Länder Parliaments
As these forms of division of power have evolved over the
postwar period, they have had a major impact on the institutional
relationship between parliament and executive within the Länder.
Put simply, the Länder parliaments have become less important
as the scope of the exclusive legislative competences of the Länder
has narrowed. Conversely, the Länder governments have become
much more important in proportion to:
(a) the widening of the Länder competence administering
federal law (for which the executive branch in the Länder
is responsible);
(b) the consequently increased significance of the Bundesrat
veto in the federal legislative process (given that the Bundesrat
is composed of Länder governments); and
(c) the more recent embedding of the Bundesrat in EU
policy-making.
The Länder parliaments have no direct oversight over
the administrative role of the executive; nor do they have direct
input into Bundesrat decision-making in domestic or European matters.
This raises concerns that government action in the Länder
is insufficiently accountable and poses questions about the efficacy
of citizen participation in parliamentary elections in the Länder.
The precise nature and balance of relationships between
Parliament and Executive in Scotland will remain fluid until the
new devolved arrangements have bedded in. There are certainly
areas in which the Executive's work will develop away from direct
parliamentary scrutiny (in the administration of Westminster legislation,
and in co-ordination with the UK government on EU matters). However,
the main feature of devolution to Scotland—the separation
of legislative powers between the UK and Scotland—will invest
the Parliament with a central role and place significant barriers
before the development of an executive preeminence analogous to
that in the German Länder. One can expect a much clearer
sense of accountability of decision-making than in Germany. This
may be conducive to high levels of citizen interest and participation
in the work of the Scottish Parliament.
(e) Adjudicating Disputes over the Division of Powers
In any system of decentralised government there will be disputes
over the division of powers. Binding adjudication of disputes
is provided by the Federal Constitutional Court, which is independent
of both federation and Länder and is the highest legal authority
in Germany. Given the legal complexities of the division of powers
in the federal system it has frequently been called upon to resolve
disputes. While its decisions have at times favoured the federation
over the Länder and vice versa, each has accepted its authority
without challenge. It has also used the adjudication process to
develop a constitutional doctrine of federal "comity"
which obliges all the institutions of the federal system to co-operate
sincerely with one another to reach common understandings.
The UK has no constitutional court, nor any tradition
of independent adjudication of disputes between different tiers
of government. German experience suggests that effective and authoritative
formal mechanisms of conflict resolution are a vital prerequisite
of the operation of a decentralised form of government. Given
the UK constitutional doctrine of parliamentary sovereignty, it
remains to be seen what level of authority decisions of the adjudicating
body proposed in the devolution legislation—the Judicial
Committee of the Privy Council— will attain, and whether
some conception of Scottish-UK "comity" can develop.
These are arguably the areas in which the UK devolution proposals
are at their vaguest and in need of fleshing out.
