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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