TUESDAY 13 JANUARY 1998

PROFESSOR ALICE BROWN and THE REVEREND CANON KENYON E WRIGHT

  60.  Obviously from the debate yesterday on the floor of the Chamber the Government was saying there would be nothing to stop a Member of the Scottish Parliament being the lead Minister for instance in a British delegation. However it was pointed out in the opposition how can that be because there is the problem of accountability because a Member of the Scottish Parliament could not be accountable to the Westminster Parliament. Who would ultimately take the decisions and on whose behalf would they be negotiating. Do you see any problems?

  (Professor Brown)  I am not a constitutional lawyer but I would have thought that objection seems to be quite sensible.

  61.  The Scottish representation only if the UK Government agrees.

  (Professor Brown)  Yes.

  62.  How would a Scottish devolved Parliament overcome the present problem, let us say for example on the BSE crisis or on fishing. It is really MAFF which decides what will happen and takes the lead and Scottish Ministers have been represented on several occasions when asked to do so by the UK. How would that be overcome by a devolved situation?

  (Professor Brown)  I do not think it will entirely.

  (Canon Wright)  The Bill is a kind of statement of hope and aspiration on this, is it not?

  63.  There is nothing in the Bill.

  (Canon Wright)  It talks about consultation, it talks about full consultation on these issues with the Scottish Parliament and the Scottish Executive in European matters and also it talks about the lead minister, yes and I can see the problem there. I am not an expert in any way on this. I can only give the answer that I get when I ask any of the European devolved or autonomous regions and the answer that I get, although they all have very different arrangements, as Alice has said, I have never heard any of them say other than that their influence has been increased through the fact that they have a regional element as well as the ability to work with their national delegations, in some cases in statutory and constitutional ways. They have to be represented constitutionally. That is impossible in the British constitution.

  64.  We are talking about the ability to be represented, to make sure your views count when decisions are made. Consultation is very much an abused word, it can mean a whole heap of things. Do you not suspect there may be frustration, for example, by a Scottish Agricultural Minister when Scottish views are represented through the UK into Europe when he or she sees 240 million pounds annual export trade being destroyed by for example the ban on exports? Would there not be a sense of frustration?

  (Canon Wright)  Yes, probably.

  65.  Which will not be overcome by devolution.

  (Canon Wright)  Probably. For me there is an absolutely crucial central question here about this. Will every party, will all of the four major parties at least in Scotland come into the Scottish Parliament with a firm determination to try to make it work or will any of them come in to it—and I do not mean the SNP necessarily—saying "It would be better for us politically if it did not work?" Now I think even the Conservative Party in Scotland is coming to the position now where it seems to be saying not just we accept, they actually to my delight use the words of the late John Smith, even the Conservative Party, they say: "Yes, this is now `the settled will of the people' we accept that and we will make it work". From their point of view to make it work in order to protect the union. Okay. This is crucial. Of course there will be issues like that, there will be constant tension from time to time, there is in every system of government. There will be anomalies, there will be difficulties but I hope that all of us will go into the Scottish Parliament, all of us who do go into it will go into it determined to make this work if we possibly can.

  66.  Do you not feel there is an obligation that they ought to ensure that it can work, in other words that to build up the expectation and make the Parliament work to truly represent the wishes of the Scottish people, is it not important that the Bill does not frustrate that? In other words that Parliament does have an opportunity to think, act on the expressed will of the Scottish people which was the original question of sovereignty. If this Bill frustrates that and does not allow, for example access to Europe, that is not a question of not making Parliament work, it is a question of Parliament not working for the Scottish people.

  (Canon Wright)  I take your point. My only answer can be that I think the Bill allows for that as far as the British constitutional system permits it to allow for that. That is a very careful answer.

  67.  Can I ask another general question: do you think Scotland's Parliament can learn any lessons from foreign models and if so which ones?

  (Professor Brown)  There are a number but I think none of us is an expert on other countries. I have given some names of people who you should consult because they will give you much shorter and concise and more effective answers to that question. Clearly there is no model we can transfer directly, and I think that relates to my point right at the beginning, the context in which this thing has taken place. Nonetheless there are important lessons that can be learned from other countries and the ones which are normally quoted clearly are the German system, for some reasons, and the Spanish system for others. I have actually got something I can leave with Alda, it is a piece of work that was done looking at the Spanish system and Spanish decentralisation. I think the important point for the Committee is to think about the criteria that they want to pursue when they speak to the experts on these different countries and also related to the principles that Kenyon Wright was referring to. If I give you an example of how we approached this in the Commission in relation to altering the electoral system. Clearly we are starting from a particular system, we are trying to talk about moving to another but also we have to take into account that there are political realities involved about what was potentially feasible, what would be ideal and what is possible, and it is a question of negotiation and compromise. However, within that we drew on the experience from other countries to look at how different systems have worked. We started with certain principles underpinning it, in other words there should be a greater relationship between the number of seats and the number of votes cast, there should be a proper relationship between the MP and the constituency, etc. So again, give your starting point with which to judge those systems. There is a great danger of collecting lots of information and thinking "Well what have I got here". Also you need to put it in the context of what kind of Parliamentary system, what kind of electoral system, party system, all that kind of thing, does it have a second Chamber or is it in parallel. All of these factors are going to impact on the kind of analysis that you get. You need to get your principles clear and then determine criteria on which you will judge the systems. You will be looking at things like divisions of power, administration of the system, the financing of it, all these types of things. I think it will be most useful to get people giving evidence to try and categorise their presentations in particular sorts of ways. I think it would make it easier for you as a Committee to assess different countries in relation to the whole. One example of a way of doing this is work done by the people at Essex University on democratic audit. They were asked to carry out a study asking how democratic are different systems. They compared the UK with four other countries, I think there was Australia, Germany, the US and one other that I forget but that is beside the point. They looked at things like how easy is it to change the constitution, what is the role of Parliamentary committees, what is the electoral system and they were able to put these kinds of things in boxes and I think it gives you a much clearer view of what is potentially possible and conditions that might be similar and therefore the lessons which can be learned. Everyone can pick their favourite country and there are always elements of any particular country that are attractive but they cannot all be transferred overnight. I think if you approach it in a particular way which you are looking at then I think you will be able to compare different systems. Clearly the Spanish model is given as a way of showing that you can have decentralised systems at a different pace and different levels depending what particular people in particular areas want etc., etc.. That is an obvious example used in relation to the situation we are facing here. There are other models and we are unusual in having such a centralised system. There are lots of different models from which one can learn but which you cannot transfer directly.

  68.  Would I be right in thinking Scotland is unique in the sense that it starts off from being an equal partner in the Treaty of the Union? Is there any parallel anywhere else?

  (Canon Wright)  Germany before it became a unified state, a federal state, before it was broken up and Bavaria was a kingdom.

  (Professor Brown)  Spain.

  69.  People do not understand the Treaty of the Union.

  (Canon Wright)  I am not arguing there is a parallel.

  (Professor Brown)  No, there is not.

  (Canon Wright)  You asked a direct question.

  70.  Scotland is quite unique.

  (Canon Wright)  Any Scot will believe Scotland is quite unique.

  71.  It is quite unique in the sense that it signed the Treaty of Union and starts from a different basis.

  (Professor Brown)  There has been the unification of Germany and Italy.

  72.  The Kurds do not sign treaties either.

  (Professor Brown)  It puts it in a rather different perspective.

  (Canon Wright)  I agree with what Alice has said, of course. This Committee could have a very interesting agenda looking at the way in which various regional governments relate to their national state governments to the European Union and indeed to local government at other levels and the various patterns. If you had some kind of criteria which you wanted to apply to those questions in advance, that would be very helpful indeed. I think that would be a way that worked. But the one crucial difference is that the British system is, as I described it at the very beginning, centralised, constitutionally centralised not just centralised by accident but centralised by a constitution which theoretically does not allow any other source of power to exist, that is the one crucial difference it seems to me. Not the only, there may be others but it is the one crucial difference with every other European situation where there is some kind of constitutionally secured power at different levels, some kind of subsidiarity. I do accept what the Church of Scotland argued in its report of 1989 that I have already referred to, I do accept that after the Treaty of the Union the system that was adopted for the united Parliament in Westminster, the Parliament of the Union, was in effect the English tradition and the English system and showed almost no trace of the traditional Scottish understanding of constitutional power. We are in the business of one of the most fundamental changes, at the beginning of one of the most fundamental changes which certainly I believe is a change for the better for the whole of the United Kingdom not just for Scotland.

  73.  On a totally different matter: do you think that once it is up and running the Scottish Parliament should have a Select Committee system perhaps somewhat similar to the one which exists at Westminster now? More specifically do you see any future role for this particular Select Committee after the Scottish Parliament comes into being?

  (Professor Brown)  It depends on other arrangements. It comes back to your question about what is the relationship between the Scottish Parliament and Westminster Parliament. In the absence of anything else this Committee should definitely continue. In relation to the Scottish Parliament I would be interested in the Select Committee system yes. Another argument that has been made is in relation to other Parliamentary committees and I think the point has been made by some groups that if you have Parliamentary committees—and this still has not been discussed in depth and decided, far from decided—if they mirror different ministerial responsibilities— health, housing, whatever—how do you get broader issues discussed like poverty, which would clearly cover different ministries, and that is something I think we have to think about very clearly when we are looking at the Standing Orders and the role of Select Committees in that process. I think one of the key points is about who is represented on these different committees, what their powers are in terms of initiating but also in monitoring what goes on afterwards. There is a whole process in which things start but obviously the opportunity to see and reflect on what has happened and put that back into the next round of changes. So I want to see it is a dynamic process that is as inclusive as possible.

  74.  This Committee would still have a valuable role to play in perhaps looking at the Scottish aspect of Westminster?

  (Professor Brown)  Absolutely.

  (Canon Wright)  Back in 1992 a Committee of the Convention produced a paper on procedures for the Scottish Parliament in which they clearly suggested that the Committees should be something between the Standing and Select Committees. For example, the Committees should have the right to initiate legislation and not simply to scrutinise government proposed legislation. These ideas have partly been incorporated in Crick and Millow and these are the kinds of ideas that will be coming to the group looking at the procedures, Standing Orders, they are matters for the Standing Orders. I would think that any ideas, whatever people have, for how the Standing Orders or Committees might work from your experience would be most welcome to this new group that has been set up in Scotland. As far as your question about this Committee, given the fact that there is no structure, I think the role of this Committee could be crucial. Have you considered the possibility of this Committee meeting with certain Members of the Scottish Parliament regularly rather than by invitation occasionally in some way to perhaps be the embryo. I am thinking aloud, off the top of my head, it might be nonsense.

  75.  The link.

  (Canon Wright)  At least to begin by being that link which we identified earlier in this discussion which is probably the missing link.

  76.  If we can get the nomenclature sorted out so that the Standing Committees are the Standing Committees and the Select Committee are the Select Committees.

  (Canon Wright)  Absolutely.

  77.  Professor Brown and Canon Wright, we have examined all the questions we wanted to put to you. We have taken a great deal longer than perhaps we anticipated at first and I think that is a tribute to the quality of your answers which you have given us. Are there any points you feel we have not covered or are there any final submissions either of you would like to make?

  (Professor Brown)  I have no substantial points. There are other things I can submit on paper to the Committee if that is helpful?

  78.  Certainly. Thank you.

  (Canon Wright)  The same is true, thank you very much indeed. If there is anything in future that we or the Convention can do to help do ask.

Chairman:  Thank you. We are grateful to you for that. On behalf of the Committee can I thank you for your evidence this morning. This has been very helpful to the Committee and I am sure it will be of great interest to a far wider audience. Thank you very much.