Examination of Witnesses (Questions 40-59)
SIR KENNETH
CALMAN, MR
JIM GALLAGHER
AND MR
DAVID MIDDLETON
11 JUNE 2008
Q40 Mr McGovern: I do not know if
you are aware of it but Tam Dalyell, a well-respected former MP,
has recently said that if a referendum were to take place there
should be four questions: one would be for the status quo, one
would be for independence, one would be for further powers for
a devolved Scottish Parliament and one would be is there any need
for a Scottish Parliament. You would not agree with that.
Sir Kenneth Calman: No. First
of all, Mr Dalyell has written to me and we have had some correspondence
about this. He is aware of that, that that is one of the questions.
It is not up to this Commission to set the referendum, it is up
to other people to do that and it would not be within our remit
to consider that at all. He is aware that we would not think that
sending the Scottish Parliament away again would be within our
remit, so we have had that discussion with Mr Dalyell.
Q41 Mr McGovern: Did you have any
comment or observation about the other point I made about the
ring-fencing of funding and the Barnett formula.
Mr Gallagher: It might be helpful
for the Committee to understand that you described the fact that
money set aside for one purpose in Westminster which as it were
generates Barnett consequentials and is available to the Scottish
administration to spend, is not ring-fenced. That is not so much
an anomaly—though you might not agree with the outcome—but
the nature of the system. The nature of the system is that the
Scottish Parliament or the Scottish administration has entire
flexibility on how it spends the money it gets. Whether that is
the correct system or not is a different question, but that is
the nature of our system and the particular point that you raised
could not fairly be described as an anomaly within it. It is the
nature of the business that the money is not ring-fenced or earmarked,
that is the way the system works.
Q42 Mr McGovern: I campaigned for
a Scottish Parliament before it was established and I am fully
supportive of having a Scottish Parliament. My concern is that
no one has ever come to my surgery to say I think it needs increased
powers; no one has ever come to a public meeting I have been at
and raised this as an issue with me, and I am concerned with the
point that Ian was making earlier on about the weighting of the
submissions that you are going to get. Tam Dalyell was my MP for
25 years; he is a lovely individual but at the end of the day
he fell out with his constituency, partly because his constituency
party wanted a Scottish Parliament. I am just wondering what weight
you put to Tam's letter compared to what is without any doubt
the silent majority.
Sir Kenneth Calman: It is partly
the quality of the argument and we are still waiting, if you like,
to see in which areas people would like to have increased devolution.
It may be that there are none, but in the National Conversation
there are actually quite a lot of things and in other submissions
there are quite a lot of things that people would like. We will
look at these but again, in a sense, we have no presumptions to
begin with, what we have to do is to look at the evidence that
comes in.
Q43 Mr Davidson: Can I just follow
that up, and it relates to the point of principle as well. Clearly,
those who want to see an independent Scotland will identify every
particular power and say that should be devolved so you have independence
by salami as it were. How are you going to decide which powers
can be devolved without threatening the integrity of the union?
Sir Kenneth Calman: We have not
got to that stage yet but in terms of the principles behind how
you would make these decisions, it will be partly on the evidence
that would say, if we did this it would be useful to the people
of Scotland and it would not disturb the union. That is the area
where we have to convince people.
Q44 Mr Davidson: The definition of
useful to the people of Scotland is very much a value judgment,
is it not?
Sir Kenneth Calman: Yes.
Q45 Mr Davidson: Essentially the
Commission is making political decisions based on opinion, supported
by evidence—you can get evidence I am sure to support any
opinion that you want to hold. We cannot have much faith actually
in the objectivity of this, can we?
Sir Kenneth Calman: I disagree
with that. Someone like myself who is used to handling evidence
in other areas—quite often you get quite a lot of evidence
in a particular area but you do not have all the evidence that
you need to make a particular decision. Under these circumstances
you do have to come to judgments. These judgments are based on
what you think would be the most appropriate outcome, but that
is the kind of area where I think it is very important that we
then discuss these issues—that is in a sense stage 2 of
the process, it is discussing it with the Scottish Affairs Committee,
Members of Parliament, MSPs to see what the judgment would be
like.
Q46 Mr Davidson: Your point about
coming to the most appropriate outcome, that will contain a whole
number of values and therefore it is a nonsense, is it not, to
suggest that this has got to be in some way an objective analysis
because it is bound to raise issues about personal predilections
of those who are involved. There is a whole number of people on
there whose opinions are known and therefore I would be astonished
if they did not argue for particular positions on particular cases—you
can almost predict those now. By totting up the known views you
can almost work out just now what the score is going to be on
a number of issues, and therefore to what extent do you think
it is fair for us to assume that, rightly or wrongly, this is
essentially a rubber stamp?
Sir Kenneth Calman: I am hoping
that people like you will give us your advice.
Q47 Mr Davidson: I am sure you are,
but that is not a response to the question I was asking.
Sir Kenneth Calman: I think it
is a response to the issue. We are looking for views and evidence
and you are very much a part of that process; I would hope that
you would give us your advice in terms of what would happen. That
is the part of the process that we are in at the moment.
Q48 Chairman: Ian, to be fair with
the Commission members, their inquiry is in its initial stages
and I am sure they will be happy to come back and give further
evidence.
Sir Kenneth Calman: We are more
than happy to come back.
Q49 Mr Wallace: I wanted to ask two
questions, first of all about the conduct of the Commission. It
is not a secret commission, there is nothing special; will it
be entirely transparent, will minutes be on-line, will submissions
be published throughout the process so that we can understand
the discussions that are going on in that Commission?
Sir Kenneth Calman: Yes and they
are.
Q50 Mr Wallace: We will be able to
see all the submissions.
Sir Kenneth Calman: Just click
on the website. Later on today I hope that a slightly newer version
of the website will be available and the minutes, yes.
Q51 Mr Wallace: The second thing,
and it slightly goes back to the presumption thing—your
original statement was that we have a presumption that no powers
will return, not all powers but no powers. That certainly is a
presumption, but I am not yet sure what evidence that could be
based on.
Sir Kenneth Calman: I did qualify
that and it is quite important that I did qualify that, because
if there is evidence coming in that it would be useful for a particular
power to come back to Westminster then we will very seriously
consider that. What I want to know is what it is you would like
to come back.
Q52 Mr Wallace: If you had contacted
us on the Committee we might have had an initial stage—
Sir Kenneth Calman: This is the
initial stage. I am here asking for your views right now.
Q53 Chairman: Can I ask you your
view then on planning permission for nuclear reactors? The Scottish
Executive is clearly against granting any planning permission
for nuclear and it might be that the British Government has some
different approach on this issue.
Sir Kenneth Calman: That is an
issue which we have not considered. It is likely that we will
be asked to consider that; it is currently part of the reserved
powers and I have no views at the moment as to what the outcome
of that discussion would be.
Q54 David Mundell: In terms of the
issue about anomalies, I do not accept Jim's point either in the
sense that right from the start of the Scottish Parliament Donald
Dewar made it clear that monies coming to Scotland could be distributed
by the Scottish then Executive now Government as they chose. In
the past when Jack McConnell, for example, spent money which in
England had been ring-fenced for council tax rebates on other
matters, we did not get the same reaction that we get now to some
spending that is not in accordance with what the UK Government
is doing. Clearly, there are anomalies within the operation of
the Scottish Parliament which are probably rather more anorak
issues than the big picture that we have been talking about so
far. How are you going to get to the core of that in terms of
the sub-clauses or whatever, in terms of the tidying up of the
devolution settlement, because whatever position you take on return
or non-return of powers I think there is a general consensus that
there is a tidying up exercise which is required 10 years on,
particularly as we are seeing new issues emerge when we do have
these different political persuasions running in Holyrood and
Westminster.
Sir Kenneth Calman: Would that
be a general consensus of the Scottish Affairs Committee that
there is a tidying up exercise to do? That is the kind of issue
I would like you to help me with and, indeed, the answer to your
question is that if there are anorak issues, which actually might
be quite important issues which need to be flagged up, the Commission
would be delighted to hear about them. That is the part of the
evidence-gathering that we are at at the moment.
Q55 Mr Wallace: I was actually halfway
through my original questioning but it slightly ties in with the
anorak issue. What is clearly unfolding, having been a former
Member of the Scottish Parliament and now a Member of Parliament
here, is there are two issues: there is the policy issue which,
as my colleague Mr Davidson said, is the abortion issue and maybe
Scotland does not like what it is at the moment, and there is
the process issue, which is actually a lot of work. Over the next
10 years will your Commission trawl through, effectively, the
legislative processes between these two Houses, between the Scottish
Parliament and Westminster, that have thrown up anomalies or unfinished
business—and a good example of that would be counter-terrorism
legislation, statutory instruments coming in where we suddenly
devolve more power. I was on a statutory instrument yesterday
where we devolved more power to the Scottish Parliament unopposed,
really because the European directive had knocked all these consequences.
That is a laborious, boring and very anorak-like thing, but bit
by bit it contributes to either a significant shift or an un-thought-through
policy process. The best example was the statutory instrument
yesterday; it was devolving the implementation of a directive
to the Scottish Parliament—no problem, it was perfectly
logical with the devolved agency doing that—but of course
the punishment for breaching a directive falls on the UK Member
State.
Sir Kenneth Calman: Of which Scotland
is part.
Q56 Mr Wallace: Yes, but there is
no mechanism in place between the Scottish Executive and the Treasury
to take on a fine if it breaches the European directive, at all.
All you have to add into the mix is a political and nationalist
mix that says Scotland is being fined because there is no clear
mechanism, concordat. That is a process that is boring—people
will not be writing in about that—but it is actually the
bread and butter of how the Scotland Act has worked out in the
last few years.
Sir Kenneth Calman: But you might
be writing in about that might you not? This is your opportunity;
it seems to me this is exactly why I am here today, to say here
are some interesting processes, you have the detail so let us
have a look at that. Jim Wallace's group is the group that might
well be looking in more detail at how these processes add up.
I do not accept that they are necessarily boring—they are
boring to some people but they are actually quite important processes.
Q57 Mr Wallace: I am a bit of an
anorak on that but my point is that I can write in. I have not
witnessed every piece of legislation and I have certainly not
witnessed the relationship between the Scotland Office and the
Scottish Executive, but you are the Commission and so I can give
you the examples that I know of, but that will be a small amount
of examples that will not cover how the Scotland Act has impacted.
Sir Kenneth Calman: We have actually
got all that data. My colleagues in the Scottish Office have got
a really big annex with all the things that have come and gone,
so we have got that and we want to look at that and see if there
are any principles that come out of that in terms of the ways
in which the two Parliaments operate. It is a very important point
and I happen to agree with it. I also hope that you in this Committee
and indeed beyond this Committee will give us some examples, from
which we can then look at better ways of managing the relationship.
When you put Europe into the frame as well you get quite an interesting
relationship.
Q58 Mr MacNeil: You have said that
you do not have a predetermined remit at all; will anything therefore
not be considered for returning from devolvement to Scotland?
Sir Kenneth Calman: Sorry, could
you say that again?
Q59 Mr MacNeil: You do not have a
predetermined remit, will anything not be considered for returning
from devolvement to Scotland?
Sir Kenneth Calman: Not at this
stage. At this stage in the process we are looking at section
5 of the Scotland Act which goes from the Crown to defence to
foreign affairs, right through to firearms control, whatever you
like. We will look at all of that, so at this stage I have not
an answer to your question.
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