Select Committee on Procedure Minutes of Evidence



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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