Select Committee on Procedure Minutes of Evidence



Examination of witnesses (Questions 80 - 88)

WEDNESDAY 10 FEBRUARY 1999

PROFESSOR VERNON BOGDANOR, PROFESSOR DAVID MIERS, MR BARRY JONES and MR RICHARD RAWLINGS

Chairman

  80.  But does not that, Professor Miers, pick up the point made by Andrew Stunell about duplication, overlap; because the point that Barry Gardiner has made and which you raised, about Builth Wells and hip operations, is so typical of what is going to happen, and perhaps, also, the feeding ground of conflict?
  (Professor Miers)  If I may say something about that, which was Mr Drew's question.

  81.  Yes, and it picks up Mr Drew's point as well.
  (Professor Miers)  Indeed so. The point about devolution is that it cuts both ways; to make devolution work means ensuring that the Welsh Assembly is in a position to exercise the powers that are devolved to it, but it also means that it does not overstep the boundaries. And, again, we were talking earlier and alluded to this, what will happen about decisions taken by the Welsh Assembly which have spillover effects along the Welsh/English border. And, in answer to the question, well, how would you differentiate, or, how would you make a matter such as the impact on English primary schools of decisions by the Welsh Assembly about Welsh primary schools, how would you make that matter fall within the jurisdiction of this place; well, one way of doing it is, just to use an old lawyer's phrase, which is that, if the matter, wholly or primarily, falls within the jurisdiction of the Welsh Assembly then that is where it remains, but if it has a "substantial" impact on people on the other side of the boundary then it is properly a matter to be debated here, and that would apply equally to Parliamentary Questions. That, of course, is a decision, is it not, for the Table Office, for the Speaker. But, to answer Mr Drew, I cannot say, here and now, how that porosity, if you like, how that lack of definition, at the moment, could be made more definite, without resort simply to some kind of phraseology, say, beloved of lawyers, like "wholly or primarily", or words to that effect.

Mr Efford

  82.  I think it relates to what you have just been saying, in a sense, because you suggest in your paper that the implementation of devolution could be seen as a co-operative venture between Whitehall and Westminster, and that the territorial committee could perform a role that is analogous with the deregulation committee, which is why I referred to it earlier on; but could you explain that in a little bit more detail? And you envisage the committee monitoring the work of the Assembly, and I just wondered if you could talk a bit about the conflict that might come about, in performing that role?
  (Professor Miers)  If I may, Chairman, the analogy with the deregulation committee is driven by this thought, that the Deregulation and Contracting Out Act permits Government to proceed with certain kinds of policies with regard to removal of burdens from business, and does so with the co-operation of the committee in this place and in the House of Lords, it does so with their co-operation, but, at the same time, with fairly clearly marked boundaries, in terms of what kinds of proposals will, or will not, may or may not be laid, or, at least, recommendations as to what may or may not be laid. That is a co-operative venture, which seeks to advance a Government policy but, at the same time, marking out some boundaries, some limits, beyond which the proposal cannot go. In the same way, we see the Welsh Assembly, or devolution to Wales, that the Government wants to see devolution work, but, equally, and this picks up on a point I have already made, if the Welsh Assembly oversteps the mark of the powers that have been devolved to it, because it takes decisions which, although they are, at least, without getting into any kind of legal challenge, they appear to be within its remit, it may be that these decisions have such an impact on people living in Hereford, in Cheshire, in Shropshire, such an impact, that Westminster would turn round and say "But, wait a minute, you can't go that far, you are ultra vires", if you like. Now it seems to us that that is the monitoring role; it is not monitoring in perhaps the way the Welsh Affairs Select Committee might monitor at present, but it is a monitoring, nonetheless, because devolution is something that is new and it has its boundaries, and you need some procedures at Westminster to check where those boundaries are going to be. At the moment, it is very difficult to say where they will be; we are in, as we have said on more than one occasion, wholly new territory, and, if we cannot give you clear answers on that, that is because we think, at the moment, there are no clear answers.

Chairman

  83.  Have you a brief comment, Professor Bogdanor, on that?
  (Professor Bogdanor)  I want to come back, if I might, to the point Mr Stunell made earlier, which he has emphasised a number of times, about the confusion between the two committees. I think that it depends on the extent to which you believe there are common issues facing the devolved areas; and it seems to me it might be helpful to name one or two of the common issues. The financial arrangements, for example, are roughly similar—Scotland has a power to vary income tax slightly—but they are roughly similar, in that all the finance, in the case of Wales and Northern Ireland, and most of the finance, in the case of Scotland, comes from Westminster. Therefore, the territorial committee might well want to discuss the principles by which the block fund, is determined, the Barnett Formula, and whether there should be another needs assessment survey for the four parts of the United Kingdom. It might well want to discuss how the devolved areas should be represented vis-á-vis European Union matters. That is a problem, to some extent, common to the devolved areas. So I think we take the view that there are some problems that are common to the devolved areas but also some specific ones, and that is our argument for having the two committees, the territorial one and the devolution one. I just did want to stress that point, because I can see that Mr Stunell is worried; but I think there is a case for the distinction.

Chairman:  I think that we are at the end, well, I will say now that our Clerk will be in touch with you, because we would like you to prepare a short paper in amplification of this particular area, but our Clerk will be writing to you. David Drew, then Clive Efford, who has got a further question, I think.

Mr Drew

  84.  I can understand, in a sense, where we are going to; what we need to grapple with, those of us who are not quite there, is how formal do you make the formal, and how flexible the informal can be. At the end of the day, if it is kept very informal then you can have whatever you want, as long as there comes a time when both the Welsh Assembly and here know where the lines are going to be drawn. Now that may be the way in which Britain has always evolved, because of the lack of a written constitution, on which there are eminent people here who could wax lyrical.
  (Mr Jones)  I think part of the problem is that we have been talking necessarily about institutions, and institutions, of course, are arid entities unless they are peopled. Welsh politicians, from my understanding, seem to get on very well with each other, and I think there is such a thing as a Welsh territorial interest, which frequently overcomes party alignment and party differences in Wales; indeed, it is increasingly the case at the moment in Wales, that seems to be a broad consensus across all the four parties in Wales. So that I think that the potential conflicts which you have referred to, from time to time, and the difficulties of liaison really are possibly greater than one would expect, given the nature of Welsh MPs to talk to Welsh Assembly people, and vice versa. An awful lot depends on personal interaction, personal chemistry, and I understand this is the case in Westminster, at the moment, and I would expect that, in the fullness of time, the arrangements that are evolved will evolve because of those personal relationships, it may be that the institutions will acquire a kind of dynamic which we cannot anticipate at the moment. So I do not wish to suggest in any way that, talking about institutions in the way we have, the personal factor is ignored; it is obviously very important.

  85.  But can I come back, could this be almost like you write the rules, to some extent, as you go along, as they need to be, if you like, bolted into place; but there are dangers with that, are there not, because, obviously,——
  (Mr Jones)  There has to be a framework within which pragmatism operates, perhaps.
  (Professor Bogdanor)  Inevitably, in any system involving divided powers, there are going to be uncertainties and unclarities, and one perhaps should not exaggerate the uniqueness of the Welsh system in that. In federal systems abroad, however tightly you try to draw the powers, and the Canadian constitution, I think, draws them as tightly as any, you are going to get disputes. Some of those disputes are dealt with politically, others are dealt with by the courts. So, inevitably, as with any political arrangement, there is conflict. There is conflict, of course, at Westminster, and the question at issue is whether the conflict is to be creative or not. I think a book has been published about Welsh devolution called Creative Conflict. That is not something which can be guaranteed by institutions. It depends on people—people at Westminster and people in Wales and how they are willing to relate to each other. It depends on the political culture of this country, which, on the whole, we are fairly optimistic about. We believe there is a willingness to make these institutions work. But it cannot be done by institutions and rules, however tightly you draw up the rules; that would not itself be sufficient.

Mr Efford:  In the reforms that are going to be required, presumably, some forms of change are going to more urgent than others, and is there anything in relation to the devolved legislature that you think should be dealt with more quickly, or urgently?

Chairman

  86.  And that is a very good question on which to finish, because we do have our next witness. Perhaps each member would like to respond fairly succinctly?
  (Mr Rawlings)  I think that, in the case of Wales, you just do have to start with the system of executive devolution, and the system of executive devolution does make the National Assembly peculiarly dependent on Westminster. And it seems to me that the Committee has directly to address the way in which the Assembly can access the law-making process in Westminster; it seems to me that that connection is absolutely fundamental to the working of this unique model of executive devolution. So I would really single that out, if the Committee is trying to develop some kind of time-frame for what needs to be done sooner rather than later; it seems to me that that is an area that really has to be targeted.

  87.  Thank you very much. Professor Miers?
  (Professor Miers)  I think I would echo that, Chairman. Whatever does happen, it seems to me that you need to have in place, when the Assembly starts up, some formal system here, if to do no more than say "Well, okay, now it's started, what are they doing, how are they putting into practice the powers that have been given to them?" Whether you do that in the form of a shadow committee, or existing committee structures, or what, I do not think it is perhaps important, but I think what is important is keeping tabs, if you like, or seeing what is happening from day one; that, I would think, is the urgency.
  (Mr Jones)  I think the most significant innovation in the Welsh Assembly will be the establishment of policy committees, and my suggestion would be, urgently, that the Chair of the six to eight policy committees in the Welsh Assembly should establish an immediate working relationship and personal contact with either the Welsh territorial committee, when it is in being, or the Welsh Select Committee, because I think that is crucial.

  88.  Thank you; very sound and constructive advice. Professor Bogdanor?
  (Professor Bogdanor)  To draw up a basis of principle for the division between primary and secondary legislation, and to hold Government to account to ensure that successive administations observe that basis of principle, so that the Welsh Assembly is not unnecessarily constrained.

Chairman:  Well, I think that is a super way to end this session of evidence. Can I thank Professor Vernon Bogdanor, Professor David Miers, Mr Barry Jones and Mr Richard Rawlings, very much for the evidence which they, on behalf of the Study of Parliament Group have given to us this afternoon. Gentlemen, thank you very much indeed.


 
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