Written evidence from Barry K Winetrobe,
Reader in Law, Napier University
SUBMISSION TO WELSH AFFAIRS COMMITTEE'S BETTER
GOVERNANCE FOR WALES INQUIRY
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.
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 SPCBand a legal
entity such as the SPCB would presume a collective responsibility
and representation of members as individuals, rather than a partisan
onein 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
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: http://www.opsi.gov.uk/acts/en1998/98en46-c.htm
£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
Scotland Act 1998 s21, and sch 2. Back
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