Select Committee on Welsh Affairs Minutes of Evidence

Written evidence from Barry K Winetrobe, Reader in Law, Napier University



  1.  I apologise for this very late submission, but I understand that your Committee is still willing to receive evidence at this stage. I am very grateful for the opportunity of making this submission to this important inquiry, especially from the perspective of a student of Scottish devolution.

  2.  For your convenience, I attach my submission of 26 July to the Wales Office's consultation on the White Paper. Many of the points made there have now been examined in more depth in the Assembly Committee inquiry and report on the White Paper, and, doubtless, in the evidence to your inquiry. I wish to make two particular points, where a Scottish perspective may be helpful to your deliberations, and to suggest that, if you have not already done so, you should consider taking evidence from the Scottish Parliament itself and its related staff and Commissioners.


  3.  I deal with this in my submission to the Wales Office (p 1). It seems that this fundamental and essential proposal has generated little controversy or discussion, its implementation being regarded as mainly a technical, administrative matter, other than in areas such as the relationship between the new "parliamentary" and "executive" bodies, and the degree of self-regulation accorded the former. Although clearly based on the House of Commons Commission model, and in many ways an improved version of that body, the use of a Scottish Parliamentary Corporate Body (SPCB) to be the legal face of the Parliament is not without its practical difficulties and complexities.[2] For example, in addition to the Presiding Officer, there are four "appointed members", who are MSPs appointed (in practice, elected) by the Parliament. Although it is nowhere stated that these MSPs represent their parties on the SPCB—and a legal entity such as the SPCB would presume a collective responsibility and representation of members as individuals, rather than a partisan one—in practice, the idea of "party representation" seems to have taken root to some degree, assisted by the "coincidence" of there being four major parties in the 1999-2003 session. When designing the regulatory, especially the self-regulatory, arrangements for the new "parliamentary" Assembly, care should be taken in understanding the apparent analogies of the Holyrood and Westminster situations.


  4.  This (perhaps unexpected) proposal in the White Paper (para 2.19) is generally to be welcomed. Again however, the Holyrood situation should be examined carefully to assess the constitutional and practical implications of this apparently uncontroversial initiative. As noted in my submission to the Wales Office (p 2), it can create continuing burdens on the Assembly, ones which it may not be well-placed to cope with, especially as it develops its new independent role in the early days, with other demands on its limited Members and staff. It can also create new and complex webs of accountability, where independence from the executive can mean a situation of relative dependence on the Assembly. As the report of the Assembly Committee on the White Paper demonstrates,[3] there will be a demand from existing (and proposed) public officials of the ombudsman/commissioner/inspector type to be constituted or re-constituted on the new basis, with anything different becoming regarded as somehow a "second-class" status or degree of independence. In addition to the scope for growth in such offices, there is the risk that the status will be accorded to ones which, being outside the area of constitutional oversight of core governmental activities, are not appropriate, but which are, in practice, politically difficult to oppose.


24 October 2005

1   It has become common-even in official documents, such as the White Paper-to use the term "corporate body" (s1(2) of the 1998 Act) to denote not (or not just) the legal personality and status of the Assembly, but the idea of a unified, single parliamentary/executive entity, on the lines of the traditional (now more uncommon) local government model. This double meaning of the term may cause difficulties if and when analogies with the Scottish Parliament situation are made, as the term is used clearly to denote the legal status of the SPCB (Scotland Act 1998 s21(1)), as the Parliament itself is not a body corporate (this is described succinctly in the Explanatory Notes: £21). This is equivalent to the position of the House of Commons Commission under the House of Commons (Administration) Act 1978, sch 1 para 1. Back

2   Scotland Act 1998 s21, and sch 2. Back

3   See, for example, para 124, on the Auditor General (a proposal which is in the White Paper, para 2.19), and para 135 on the Children's Commissioner (which is not). Back

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