Examination of witnesses (Questions 46
- 59)
WEDNESDAY 10 FEBRUARY 1999
PROFESSOR VERNON
BOGDANOR, PROFESSOR
DAVID MIERS,
MR BARRY
JONES and MR
RICHARD RAWLINGS
Chairman
46. Can I thank the Study of Parliamentary
Group for coming to give evidence to us about the procedural consequences
of devolution, and I welcome, on my right, but the left of the
table, Professor Vernon Bogdanor. Next to him, Mr Barry Jones;
no relation, I presume, to the distinguished Member of Parliament?
(Mr Jones) Only by territorial association.
47. Only by territorial association; thank
you, Mr Jones. Professor David Miers, and Mr Richard Rawlings.
Can I thank you for coming and can I thank you, obviously, for
the paper, the memorandum, which you sent to us, which has been
particularly helpful. Can I, therefore, from the Chair, put the
first question to you. The impression is sometimes given that
the Welsh Assembly will have very, very limited powers, yet the
list of functions to be transferred, under the Government of Wales
Act, I believe, having read the list, is really quite extensive.
How much power will the Welsh Assembly have to set its own policy
in these areas, where power has been transferred, rather than
implementing those laid down by the United Kingdom Parliament
in Westminster?
(Professor Bogdanor) It is very difficult to answer
that question in advance, because Welsh devolution is a new and
untried form. Primary legislation, as you know, Chairman, is remaining
with this place, secondary legislation is being transferred to
the Welsh Assembly. Thus, for each matter, the power of the Welsh
Assembly will depend on the precise division of power between
primary and secondary legislation; this division is not, as it
were, laid out in heaven, it has to be devised, and the Welsh
Office have done a heroic job in dividing powers. It seems to
me that every new piece of legislation affecting Wales will, in
a sense, be devolution legislation, in that there will be a need
to divide powers between Westminster and Cardiff. That, in a sense,
involves a political decision, a decision that will be made here.
So it is difficult to answer your question in advance. I think,
if I may say so, that your question draws attention to a crucial
point about Welsh devolution, namely that it is an untried form
in this country, and therefore poses very considerable challenges
both to the Welsh Assembly and to Westminster if it is to work
satisfactorily.
48. Are you saying, though, if I may just
follow that up with a very quick supplementary, that you think
it is going to create conflict between the United Kingdom Parliament
in Westminster and the Assembly in Cardiff?
(Professor Bogdanor) Not necessarily in my view.
I believe that co-operative relationships can be worked out, and
it is a challenge for everyone, both here and in Cardiff, to make
sure that devolution works successfully. I feel that it will.
49. I think that reflects your written evidence.
Barry Jones: do you have a view on that; is it the same?
(Mr Jones) It is similar. I have one or two points
I would add, I think. Executive devolution, in many ways, is more
complex than legislative devolution, which is much more of a clean
break; but executive devolution puts a tremendous responsibility
on the shoulders of the Westminster Parliament, because there
will be a need for relationships to be established, or linkages
to be forged, in order to ensure that the executive devolution
runs in an easy and comfortable fashion. I do not think there
will be conflicts, there may be tensions, from time to time, but
tensions are part and parcel of politics. But I do want to emphasise
the point that executive devolution does not mean that Wales is
ceasing to have significance in Westminster; in some respects,
Westminster will have to be more involved in certain aspects of
the executive devolution process.
50. Thank you. Professor Miers?
(Professor Miers) Thank you, Chairman. I think
I would echo that. You began by asking about the range of political
freedom, in a sense, that the Welsh Assembly in Cardiff would
have. If one looks at it in terms of history, it will acquire,
of course, commitments in health and education, in all of the
activities that are devolved to it, and its range, at least initially,
the scope that it will have for new initiatives, strikes me as
being fairly limited, at least in terms of the amount of money
that it would have available to spend, because most of the money
from the block grant will have been committed to existing activities.
The point about conflict between the UK Parliament, or between
this place and the Assembly, one of the matters which we have
certainly been discussing is to what extent tensions might arise
as a consequence of decisions taken by the Welsh Assembly which,
as it were, spill over into England. And the kinds of areas that
we have been discussing among ourselves would be areas such as
education or health, where decisions by the Welsh Assembly with
regard to primary schooling, or the provision of health care,
even if these things are dealt with at an official level; nevertheless,
there is the potential, we think, for some degree of, if not conflict,
but some degree of tension there.
51. Thank you. Mr Rawlings?
(Mr Rawlings) There is a very nice phrase floating
about, Mr Chairman: every Bill a devolution Bill. And that phrase
expresses the point that, with Welsh devolution, as Professor
Bogdanor has said, every time legislation comes before the Westminster
Parliament which bears on one of the areas in which the National
Assembly is to have responsibility, the Westminster Parliament
will have to take a decision as to the amount of, in effect, discretion
which is being passed down to Cardiff. Now, I think it is interesting
to draw the Committee's attention to the Government's White Paper
in relation to this point. The Government's White Paper, the original
White Paper, really pushed the line that the Government was predisposed
to framework legislation, in the sense of maximising the discretion,
to the extent that that was possible, for the National Assembly.
And I think this raises a whole series of questions about the
appropriate relationship between primary and secondary legislation,
about the likelihood that under a different Government a rather
different approach might be taken, and also the opportunities
for input into the Westminster legislative process of the National
Assembly. Because I think that with a scheme of executive devolution
there are particular demands, particular requirements, for the
National Assembly to have an input into the Westminster process,
that do not arise in respect of Scotland and Northern Ireland.
52. Thank you. That really leads me on to
my second question, and, again, if you feel you do not all need
to answer, perhaps those that really want to put a positive point
will indicate accordingly. How much, therefore, do you think we
should concentrate on general principles, which would apply, in
considering devolution, to any Parliament or Assembly, and how
much do you think procedures will need to be revised, here, at
Westminster, to reflect the different devolution arrangements
for each part of the United Kingdom? And I do have a very quick
supplementary, depending upon the way that you would like to deal
with that question. Have I made myself clear? Professor Miers?
(Professor Miers) Mr Chairman, in the paper we
prepared, we sought to indicate that, firstly, there are clearly
different kinds of devolution arrangements within the United Kingdom,
that the kinds of changes that you would want to introduce here
would reflect, if you like, what level of generality you want
to address. If you want to address broad questions about the relationship
between one Assembly, or legislature, and this place, in terms
of Parliamentary Questions, that may be one way of approaching
it; if you want to look at it in terms of, well, what is it that
Westminster, to pick up on Mr Rawlings' observations, will need
to take on, in terms of legislation in Wales, then that is at
a rather different level, a rather lower level of generality.
So it seems to me that, to answer your question, it is not necessarily
the case that there is going to be one set of rules, or one set
of procedures that will address all the questions that are going
to arise.
53. Then let me put my supplementary straightaway.
If you are saying the answer is to reflect the differences between
the Parliament in Scotland and the Assembly in Wales and the Assembly
in Belfast, in Northern Ireland, what are the key points that
this Committee, representing the House of Commons, should bear
in mind particularly about Welsh devolution and the way we handle
Welsh affairs here, in the House of Commons?
(Professor Bogdanor) One of the things which the
Committee might do is to review the working of the division of
powers in legislation, which, as I said earlier, is new and untried,
to try to draw out principles from the way in which primary and
secondary legislation are divided in existing legislation and
in future legislation, to draw up principles which perhaps might
act as conventions. These conventions could limit any future Government
which might be unsympathetic to Welsh needs and would therefore
draw up primary legislation so tightly as to leave the Welsh Assembly
with little room for manoeuvre. That has happened in the past
between Governments and local authorities; when Governments have
not trusted local authorities, they have drawn up legislation
very tightly, so that local authorities have little room for manoeuvre.
One would not want that to happen with the Welsh Assembly, and,
therefore, this, it seems to me, is one important area, in an
untried constitutional situation, where the Committee arrangements
at Westminster with regard to Wales could play a most valuable
part.
54. But what about the lower level, where
Professor Miers talked about the time for Welsh Questions, and
things like that; do you think there should be an adjustment to
reflect the, as some people will perceive, overrepresentation
of the Welsh, and the Scots and the Northern Irish, both in actual
number terms and in time terms, in Parliament, as against what
is described as the "down-trodden English"? That is
emotive, and intentionally so, to try to draw you out?
(Professor Bogdanor) I think that Wales is in
a different position from Scotland, in that Westminster remains
statutorily responsible for all Welsh legislation, as I understand
it, and the Secretary of State for Wales will be responsible not
only for primary legislation but also for the way in which it
is drawn up for Wales. Therefore I think it will be very difficult
to alter the arrangements for Question Time with regard to Wales;
Scotland and Northern Ireland may be quite different, indeed,
probably will be different, after devolution, because they are
to have legislative devolution, which cuts off large areas, broadly
speaking, from the purview of Westminster. But Wales will not
have legislative devolution, and therefore Question Time will
still remain as lively an institution as it has been in the past
with regard to Wales. You raised the question of England; well,
it is for England to decide what she wishes to do about devolution,
how she wishes to respond. Perhaps the Welsh might say "Well,
whenever we think we've solved the English question, the English
change the question", but it is for the English to decide
what they wish to do.
(Mr Jones) I think that Welsh Question Time should
remain, but I think it will have a different character. A large
part of what the Welsh Question Time is concerned about at the
moment will be the responsibility of the Assembly; but I do think
that there are certain principles about devolution which may be
raised by constituents with their MPs which will still need to
be raised at the Westminster level. But I think the analogy I
would draw would be rather like the way in which Ministers used
to deal with questions relating to nationalised industries, that
the day-to-day business of nationalised industries was left to
nationalised industries, but the principle behind it could be
discussed in the House of Commons. And that is the distinction
which I would draw to explain how Welsh Question Time could still
run.
Chairman: That is
very helpful.
Lorna Fitzsimons
55. Given that you were saying, the lack
of clarity, really, about how it is going to happen and the differentiation
between primary and secondary legislation, would you then think
it would be wise, rather than, there might be a desire to throw
out the baby with the bath water, especially with some English
reactionary colleagues that I have, now we have despatched our
responsibility, to keep the Welsh Affairs Select Committee as
part of being able to provide scrutiny, or a forum for scrutiny,
for back-bench Members?
(Professor Miers) You will know, from our paper,
that one of our proposals is that you would actually dispose of
the Welsh Affairs Select Committee, along with the Grand Committee,
and the Standing Committee too. Our view, perhaps if I might just
take a couple of minutes to say why we think that a territorial
committee——
Chairman
56. And is your view shared, Professor Miers,
by your colleagues?
(Professor Miers) Yes, it is something we have
discussed, on the way in, so it does represent a shared view,
yes. We take the view that we think it is not really an option
to sit and wait for things to fall out, to see how things are
just going to happen. Perhaps there are four or five points that
I would like to make, if I may, briefly, Mr Chairman, just in
relation to that. Firstly, devolution is the biggest thing that
has happened here for centuries, and I think we are strongly of
the view that, in the first instance, there is a political symbolism
about not carrying on with, if one puts in a negative, not carrying
on with the existing traditional modes of procedure but rather
introducing a new procedure, which is a single committee. So I
think there is an important shift, if you like, to be marked in
that way. To do nothing is also going to be, we think, potentially,
creative of further difficulties, some of which I think the Chairman
has already alluded to. What is going to happen, initially, is
that there will be a boundary, albeit it will be one that is porous
and one that is perhaps difficult to be definitive about, between
what happens in this place and what happens in Cardiff, and that,
indeed, is part of what this process is about, trying to identify
at least some of the markers of those boundaries. So you have
one boundary already, which is a new boundary, between the Welsh
Assembly and Westminster; it seems to us that maintaining the
existing, three other, boundaries, between the Welsh Affairs Select
Committee and the Standing Committee and Grand, that is just going
to exacerbate, rather than assist clarity, in terms of the main
boundary. The third point we feel quite strongly about is that
a single committee would be able to take a holistic view about
devolution, and we think this is very important, that if certainly
the Government is keen on this, to make sure that devolution works,
one needs, I think, to have a view of what its impact is, how
it affects individuals, how it affects institutions, bodies, and
so on, within Wales. And a single committee, after a while, develops
a corporate, collective experience, a corporate history, which
we think is important, in two other ways. Firstly, because it
would give such a committee perhaps a stronger and more credible
voice, when it comes to dealing with other matters to do with
devolution, to do with, say, devolution to the English regions;
or to take, again, the Chairman's point about higher level principles,
a single committee, speaking with one voice, because it has been
looking across the board, is more likely to be seen as a credible
body. And it is a way of cutting across, of examining the different
devolution arrangements in Scotland and in Northern Ireland, and
trying to draw together some of those. So I think there are some
important, future consequences of having a single committee. So
the answer to your question, rather long-windedly, is that we
would not see a future for the Welsh Affairs Select Committee.
Lorna Fitzsimons: You
are obviously all very well versed in sort of forms of government,
in terms of the position of a Welsh backbencher, I quite understand
the need, and I think they would quite see the merit in the proposal
of a devolution committee, but that, therefore, clouds the issue,
in terms of the particular instance of Wales, in the sense that
a lot of power is still left within this House, rather than the
Assembly, and that, therefore, their interests could get lost
within that, and they want a specific focus. Now, have you thought
of actually separating out in that, because Wales is very different,
to that of Scotland and Northern Ireland, because of the boundaries
in terms of legislative boundaries, primary and secondary? In
writing the paper and submitting your evidence, did you give any
thought to the possibility of having a Welsh ... ?
Chairman: Before you
actually answer, can I ask my colleagues, Andrew Stunell, to come
in, because the questions I know that he wishes to put are not
dissimilar to the area that we are now covering, and also Barry
Gardiner, the questions link in; and it might be helpful, because
then you can all have a bite of the cherry, you can deal with
the questions, and I know David Drew wanted to come in as well.
Perhaps then, if my colleagues put these questions to you, you
might see how you can deal with them, as a group. Andrew first.
Mr Stunell: Actually,
your answers succeeded in confusing me a bit, because you have
referred very much to the need to have sort of a unified look
at all of this, and made quite a powerful case; separately, you
have made the point that there are a lot of differences between
Wales, Scotland and Northern Ireland, and yet you have argued
for a devolved powers committee, which appears to be something
which complicates it again and crosses all those boundaries. And
I wonder if you could say something about the reasoning for the
devolved powers committee and its membership, because it does
seem to me that that is rather on the same topic as Lorna has
just brought to your attention?
Mr Gardiner
57. Really, continuing that sentence, not
only about its membership but also its agenda, what is going to
be the agenda of this committee, and is there not a danger that
tensions would develop as that committee was seen to be second-guessing
what was going on, on the ground?
(Mr Jones) When you say "committee",
which committee do you mean?
58. Your devolution committee?
(Mr Jones) The Welsh devolution committee.
Mr Stunell
59. I am sorry; if I can come back. Maybe
I have completely misunderstood the point you are making, but
you have talked about a joint committee.
(Professor Miers) If I may, Chairman, perhaps
it might help to clarify; and I apologise if I have confused the
matter here. Our primary proposal in the paper is that there should
be a Welsh territorial committee. We also raise in the paper the
possibility that there might well be another committee, which
looks at devolution throughout the United Kingdom, but these are
not to be confused, the one is the committee which looks at devolved
powers throughout the UK, but our main proposal is a territorial
committee for Wales, alone. And that, I hope, clears that up.
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