WEDNESDAY 25 FEBRUARY 1998

PROFESSOR PAUL HEYWOOD, DR CHARLES JEFFERY and MR UWE LEONARDY

  79.  Good morning, gentlemen. May I welcome you to this session and on behalf of the Committee may I say how grateful we are to you all for coming, and also to the Friedrich Ebert Foundation for making it possible for you, Mr Leonardy, to be present this morning. Would you please convey our thanks. The background to our meeting is that with a Scottish Parliament and Executive now imminent we thought we should inform ourselves and perhaps contribute to the debate about how they might relate to other democratically-elected bodies at national, European and local level, and how they might conduct their affairs. We did feel that it was appropriate to consider how the experience of other countries might be relevant, which is why we have invited you to give evidence. We feel that the German Länder system and the Spanish system have particular interest to us. We have read the papers which we have received from you and will proceed directly to questions. Some of these will be directed at one of you, others will be perhaps open to all three of you, so please feel free to supplement what others say from your own experience. There will be an opportunity at the end to draw our attention to any matters which you feel were not covered in full detail or at all. I will give you at this time the chance to make a very brief opening submission to the Committee but I would not want you to make it too long and pre-empt many of the questions that we would like to put to you. For the purposes of the record could I ask each of you to introduce yourselves to the Committee.  (Mr Leonardy)  My name is Uwe Leonardy. I am a lawyer by vocation and a political scientist by some additional study in the United States. My professional position is to be the Head of the Legal and Constitutional Division in the Mission of Lower Saxony. You might know that the German Länder have representative organisations in Bonn linking up the structures of the Land with that of the Bundesrat in particular and also the Federal Government and the Bundestag. That is my position in what is a practical federal gathering.

  (Professor Heywood)  I am Paul Heywood. I am Professor of Politics at the University of Nottingham and Head of Department there. I am an expert on the Spanish political system and have acted as an adviser to the constitutional unit[13] and to the Scottish Constitutional Affairs Convention on Spanish systems of devolved government.

  (Dr Jeffery)  I am Charlie Jeffery, Reader in German Politics and Deputy Director of the Institute for German Studies at Birmingham, which is a research centre also centrally engaged in making available information and expertise between Britain and Germany in both directions about all matters of politics and government.

  80.  Would any of you like to make a brief opening submission?

  (Dr Jeffery)  I have submitted some written evidence specifically for this session plus a number of additional materials. As an opening I wanted to draw out the two main themes which run through those. The first is of course that federal Germany and a post-devolution UK are based on very different foundations. In Germany we have 16 Länder of equal constitutional status. In the UK we will have an array of asymmetrically empowered devolved bodies with the Scottish Parliament by far the strongest. In Germany the Länder are entrenched in a highly formalised and structured constitutional order. The UK situation does not allow entrenchment and UK devolution will be located within an unusually unformalised constitutional structure. The main but not only division of power in German federalism is between federal level legislation and administration of that legislation in the Länder. The UK/Scotland division of power is primarily based on the separation of legislative responsibilities at the two levels. The German Länder have formal access to the federal legislative process in Germany via the Bundesrat. There is no equivalent mechanism foreseen in the UK in the devolution process. Conflict in the interpretation of division of powers in Germany is subject to authoritative and independent adjudication by the constitutional court. We have no such tradition of authoritative and independent constitutional adjudication. Despite those differences I think I can draw attention to a second theme of commonality and that is that any system which divides power between the national and a sub-national levels requires co-ordination mechanisms. The German system of primarily inter-governmental co-ordination, though rather more formalised than that in the UK is ever likely to be, does point to some of the key issues in the co-ordination of the activities of the UK authorities and the Scottish authorities after devolution. As a final few words I will point to four of these. First, most of that kind of co-ordination will be technical and politically uncontroversial. Secondly, however, points of conflict and controversy may be injected into that co-ordination by the operation of partisan politics on the two levels and by competition for resources both between the devolved units and the centre and also, I expect, among the various devolved units in the UK. Thirdly, the role of UK level authorities in European Union decision-making may well be challenged and re-calibrated as the Scottish Parliament and executive realise the commitments which have been made to allow them access to European decision-making processes. Finally, the role of local government in Scotland may well be challenged and re-calibrated as a result of the establishment of the Scottish Parliament and executive authorities.

  81.  Thank you, Dr J

  (Mr Leonardy)  First of all I would like to thank you for the privilege of being heard as a witness before a British parliamentary committee for the second time. I was in this building in 1973 when I gave evidence to the House of Lords Select Committee on Procedures for the scrutiny of proposals for European instruments, and when I was heard there with two other colleagues from Germany their Lordships told us that this was the first time since Napoleon's days that foreign civil servants were heard before a British parliamentary committee, but I am sure this is not so any more. I would like to stress two basic differences between the systems which we are viewing today. First of all, the transfer of legislative competences in Germany has happened historically of course from bottom to top because it was the Länder who formed the Federation in 1949, as it was also the predecessors of the Länder who did the same in 1871, while in Britain devolution of power is coming from top to bottom. The striking thing about the British legal technique to do so is that although normally the transferring level remains the seat of residual power (which means the rest of all legislative power) as it does in Germany under the basic law, this is not so under the devices of the Scotland Bill where you have the reserved powers for the national level while the residual power goes to Scotland. Secondly, there is of course the difference which Dr Jeffery has already emphasised, that we have a fully organised federal system while Britain only has a devolved system partially, or is going to have that system, which of course accounts for many institutional differences. The fact that legislative power is divided between the Federation and the Länder on the basis that the Länder have the residual power also is the explanation behind the system of the categories of different legislative functions which we have. There are enumerated in the Basic Law the exclusive powers of the Federation, the concurrent and the framework powers. Using the word "concurrent" I have learned that it needs to be explained because, particularly in the Anglo-Saxon world, it is often misunderstood, at least the German use of it. Concurrent powers in our understanding are not competitive powers so that the two levels cannot legislate simultaneously on the same matter as, for instance, they can under the new South African constitution. Concurrent power means the definition of a certain number of fields in which the Federation can claim legislative power under certain constitutional conditions and then fill in that claim by legislating on them in most cases with the consent of the Bundesrat, but in some cases not at all, but there is also the need of the Federation fulfilling certain constitutional conditions. There is then the characteristic of the implementation of federal law predominantly by the Länder, as Dr Jeffery has emphasised already. Local government—and I think that cannot be made clear enough— is strictly a part of the Länder's organisation so Germany does not have a three-tier system of government but a doubly two-tier one. It is the Federation formed by the Länder and local government autonomy making up much of the Länder sphere when it is completely an exclusive field of the Länder legislative powers. A very important thing about any regionalised or federalised system, name it as you like, is the fact that inter-governmentalism is a strong element in it and, looking at German federalism, it would be a mistake to think that you could read that from the constitutional text only. There are three realms of working structures in the German system. One is the strictly constitutionalised federal state, as it is in the Basic Law, with the Bundesrat in its centre. Then we have what we call the Whole State with institutions like the conferences which the Federal Chancellor regularly holds with the heads of the Länder Government, under his chairmanship of course, and then we have what we call the Third Level which is horizontal co-ordination between the Länder. At the top of it there is the Minister-Presidents' Conference but you have numerous conferences of departmental ministers like those of the interior, education, health and so on. They all have their own co-ordinating institutions. For the future development in Britain these areas of the Whole State and of the Third Level might be of particular relevance. I will not talk in detail about the legal safeguards of federalism. I will only refer you to my paper here. I must however once again refer to the central position of the Bundesrat. It is the central federal organ both in legislation, including European law, where it has had a strong say ever since the constitutional amendment of 1992 which went along with the Maastricht Treaty in its ratification, also deals with statutory instruments. The function which may be even more relevant for you is the fact that the Bundesrat is a national public forum for debate on federal issues in general, for regional administrative, economic and financial interests and, last but not least, on inter-governmental processes and decisions. If I may, Chairman, I might finally leave the area of describing our system for making a comparative observation, which is that I think there is a case for a reflection of Scottish autonomy at the national parliamentary level. Of course the problem is how should this be done. Certainly it should not be done in the form of a third chamber which would complicate things in a manner which would not be proportional. I think it might be worth some consideration to establish a Joint Scottish Affairs Committee of both Houses consisting of either all Scottish MPs or a certain number elected by them, plus the Scottish Ministers who in a new capacity would be temporary members of the House of Lords. That Joint Scottish Affairs Committee would then not be a legislative body in the sense of a third chamber, but it would have to serve as a publicly deliberative institution, first of all in order to be a window into the intergovernmental structure, which I think you certainly need in any regionalised form of state (the Canadians and the Australians do not have senates who fulfil that function; the Bundesrat fulfils a lot of those functions). It would also have to discuss overlaps of reserved and devolved powers politically because you will not have any system which can secure a watertight demarcation of legislative powers. It could thus also help avoid solving disputes on such matters politically and leaving them to legal standards of courts, and it could facilitate further development of devolution in general. That of course will all presuppose this idea of having Scottish Ministers as members of the House of Lords, which at first sight might sound like a queer idea to you, but I think it would reflect the intergovernmental element of devolution on the national parliamentary level. Hardly can this be done in the Commons, and the chance would be to bring regional interests to the attention of a national institution in both the House of Lords and the Joint Committee on matters of national importance in the fields of reserved legislation as also on budgetary and financial issues, and, last but not least, on European secondary legislation where you will have many zones in which you will have overlappings of reserved and devolved powers because the European drafting does not care about the internal constitutional situation of particular Member States. Finally, I think that solution could avoid prejudicing the question of House of Lords reform generally while admittedly adding to it a regional element but doing so in a very limited manner. Thank you, Chairman.

  82.  Thank you, Mr Leonardy. Professor Heywood?

  (Professor Heywood)  I am sure the Committee would like to ask us questions so I will keep my comments on Spain very brief. Superficially there are far more similarities between the Spanish system and what has been proposed for the United Kingdom than there between those proposals and the German system. Indeed, there are distinct parallels between the notion of asymmetric devolution to Scotland and Wales and the Spanish system of asymmetric devolution to the regions. The critical difference which can hardly be over-stressed is that in Spain you have asymmetric devolution but you do have devolution to the entire Spanish territory. You have 17 devolved regional assemblies which cover all of the Spanish state. There is a clear difference between the idea of having devolved power to parts of the state as opposed to having devolved power to the entire state even though the power is asymmetrical. The second key point which is very important to bear in mind in regard to the Spanish example is that an asymmetric system of devolved power to the regions, since it is not federal, since it does not involve any transfer of sovereignty, and since it does not imply the regions in co-decision making through a specific chamber at the national level, cannot be a firm, stable system. It is a system which is evolving and has to evolve because of the nature of the transfer of power between the central state to the regions, which is on the basis of statutes negotiated between each region and the centre, so there are 17 separate statutes in a process which, through its very design, has a built-in evolutionary element trying ultimately to have some degree of level competences for all the regions, but in which certain regions jealously defend their privileged status. By its nature it is not a static situation. The fact that it is constructed on the basis of 17 individual statutes with the 17 different regions means that problems of co-ordination are increased. Problems of co-ordination in an asymmetric system are by their very nature more difficult than problems of co-ordination in a federal system. It does mean that there is an extremely important role for the constitutional court in Spain and, echoing what Dr Jeffery said, the lack of proposals in the UK for any such equivalent body suggests that there may be difficulties in the case of competing interpretations as to actual competence. Similarly to the UK system, the Spanish system was a top-down process of legislating from the central state to allow devolution to take place. Similarly to the German system, there are exclusive powers, concurrent powers, and devolvable powers. I will not say any more at this stage. I am quite happy to answer questions.

  83.  Thank you all for setting the scene for our session this morning. You have thrown up a number of issues which will be taken up by members as we go through our structured programme of questions. There is a lot that you have said that we have not covered in our previous discussion privately. May I begin with some general questions and put it to you that it is argued that within the UK there are two concepts of sovereignty. One is that the UK view is that sovereignty lies at the top with the Crown in Parliament. Another view is that in Scotland sovereignty lies with the people. This difference of view might ultimately lead to clashes. Is there any similar tension within either Germany or Spain and where is power assumed to lie in these countries?

  (Professor Heywood)  In the Spanish case the answer is quite simple. In a sense Spain had the advantage of a new constitution after the Franco dictatorship which posed specifically the question of where sovereignty should lie. Sovereignty is formally in Spain designated as lying with the Spanish population. The monarch is designated as a constitutional monarch responsible to the Spanish population, so sovereignty lies with the Spanish people, not with the monarchy.

  84.  And in the German case?

  (Mr Leonardy)  First of all, I do not think anybody in Germany would talk of the sovereignty of the Länder, but the Länder on the other hand have more than an autonomous status. It is more or less considered to be a theoretical question, mainly also under the impact of the fact that sovereignty I think in Germany is considered more or less, I would not say an outdated concept but it is a concept which has lost much of its relevance, particularly under the impact of the European Community and the Union. After all, the German constitution in 1949 was the first I think of all the constitutions in the world which took care of the possibility to transfer sovereign rights to a then not even existent supranational body. Article 24 of our constitution says that the Federation may transfer sovereign rights to an international body which came to be relevant in the case of the European Community and now, returning to the federal subject, came to be a problem by the fact that this transfer of sovereign rights to the European Community can also include sovereign and legislative rights of the Länder. We came to consider that as what we call "the open flank of the federal order" which was finally attempted to be closed in 1992 by these amendments which went along with the Maastricht Treaty. The concept of sovereignty as such is not so severely debated in Germany as it is in this country, I would say.

  85.  You then speak about the systems in the two countries and how asymmetric or not they were. In practice, how equal are the German Länder or how unequal are the Spanish regions?

  (Dr Jeffery)  In theory the German Länder are constitutionally equal, qualified only by the fact that voting rights in the Bundesrat are broadly weighted according to population. In practice there are of course inequalities based on the different profile of the Länder. Some have more money to use than others. Some have more efficient administrations than others. Some have different types of leadership, which means that in practice some Länder make more purposeful use of their exclusive legislative powers; some take on a more agenda-setting role in the intergovernmental co-ordination processes with the Federation and with one another than do others.

  86.  Does this cause tensions between the more and the less powerful areas?

  (Dr Jeffery)  There are certainly some tensions at the moment in the German federal system, based largely around financial questions, the financial flows which lubricate the system and theoretically ensure that each unit has enough money to do what it is supposed to do constitutionally. Those tensions have hitherto been contained. There are pressures from some of the Länder, in particular Bavaria and also some of the other southern Länder, to loosen some of the obligations of solidarity in the financial sphere which would allow them to pursue a more autonomous-style agenda. Those tensions have certainly been contained and are containable.

  87.  Can I draw your attention to what we loosely call the West Lothian question? After devolution has taken place in the United Kingdom, certainly with respect to Scotland, Scottish voters will retain an influence on English affairs which will not be reciprocated. To what extent do the systems of which you are aware have any similar facet and, if they do, what ill feeling or tension have they generated and, if that is the case, has that tension been exacerbated over time or reduced over time?

  (Professor Heywood)  The West Lothian question arises because of the proposals for having devolution only for Scotland and Wales. You cannot talk in terms of a West Lothian question or an equivalent West Barcelona question in Spain because the system does not allow for that parallel structure. Every region in Spain has decision-making autonomy over those spheres which are allocated to that particular region.

Therefore, all regions have elected MPs at regional level and also send MPs to the national parliament in Madrid. They would not have a situation in which therefore regional Members of Parliament were making decisions which affected the entire territory without a reciprocal arrangement existing. The West Lothian question therefore is something which simply does not exist according to the structure of devolved power in Spain and would not exist in the UK if there were devolved power to English regions.

  (Mr Leonardy)  The same applies to Germany, all the more so even because we have a fully organised federal system with equal status of the Länder, as Dr Jeffery has pointed out already. To explain the West Lothian question to any German is really a difficult matter. The very existence of the question is a consequence of the difference which I have pointed out at the beginning of my statement, the fact that you have a devolved system and even only a partially devolved one.

  88.  All right: there is no formal problem in that respect, but is there a question which arises from the undue influence of any of the regions consequent upon the size of their population and their economic prosperity and the influence that they therefore might exercise over the other regions? Finally, to what extent are you familiar with the devolution proposals for the Scottish Parliament? Will it have more or less power than the regions in Spain and the Länder in Germany?

  (Professor Heywood)  To the extent that there is concern about undue influence of regions in Spain, for instance, Catalonia being the principal example, it is a factor of the national level arrangements, not regional arrangements. In Spain you have a situation in which since 1993 national governments have depended on support from Catalan nationalists in particular, but also Basque nationalists, in order to be able to form governments, but those nationalists who are supporting the central government in Madrid are nationalists who are elected in national elections. They are not nationalists elected in regional elections. In regional elections you have a different profile and a different set of results, a different form of political preferences expressed by the population. The extent to which there is concern about the undue influence of Catalonia in national politics—and there is concern about it—is not a factor of the devolved system of government. It is a factor of the need for the central government in Spain to rely on Catalan nationalists to remain in power.

  89.  If the Spanish system is asymmetric, which is what the British system will be, while we accept that the British system is not fully devolved, in Spain the level of devolution is different in each region, so there must be areas of policy that have not devolved to the local regions which the national government looks at. There will be, for instance, people from one region who will be voting on issues in the central government that are to do with one region but not necessarily on their own region because of the asymmetrical nature of the arrangement. I am thinking, for instance, in this country that Wales will not have the same devolved powers as Scotland, so there will be Scottish MPs voting on things to do with Wales that in the Scottish context they will not be. I presume that must be the case with the asymmetrical set-up in Spain. Are there not tensions there anyway? It is not a West Lothian question but it is a similar type of question.

  (Professor Heywood)  There is no particular tension in that regard because the kind of asymmetry that exists in Spain is more to do with the extent to which regions have autonomy over financial disposition for instance. It is not the areas over which they can legislate which differs significantly. It is the nature by which they raise finances in order to be able to carry out legislation at all. That is one of the critical differences. The number of areas which are reserved by the central state is relatively small and although we have asymmetric devolution in Spain there has been a tendency, a process, which would envisage in the initial framing of the legislation moving towards a levelling out of competences across the regions throughout Spain. What has happened is that the so-called historic regions, particularly Catalonia and the Basque country, have claimed a privileged status or relationship with the central government which has been acknowledged as being right and proper by the central government but which does not extend enormously to areas of legislation which create tensions in other regions. The fact that the Catalans and the Basques are responsible for organising their own police forces does not generate huge senses of resentment in Estremadura or in Cantabria for instance.

  90.  Is the suggestion then that if Britain does go down the route of regional assemblies then the fear of the West Lothian question which that would cause actually would probably disappear if they were going to follow the Spanish example?

  (Professor Heywood)  That is right.

  (Mr Leonardy)  May I have permission to answer the second part of Mr Swayne's question which referred to a comparison between the powers of the Länder and the devolved powers and reserved powers. I more or less expected that kind of question so I went through the categories of reserved and devolved powers. I think the Scottish Parliament will have more power than the German Länder have in the legislative field, particularly in the area of health, and also in vocational training and partly in fields like traffic and transport, moreover definitely in criminal law. Those I think would be the most outstanding areas of examples which I could name. Scotland would have less powers than the German Länder partly on the civil service. German civil service law is basically a field for the Länder but it is governed by what we call the framework acts of the Federal Parliament, while here the Scotland Bill says that civil service law will be settled by the national Parliament. Then there are some powers which will be less than those of the German Länder in the field of entertainment. Strangely enough I found that the Hypnosis Act was one of the reserved powers, and also partly in the field of energy, but only partly. These are only examples. One cannot possibly run through the whole list.

  91.  Professor Heywood, you drew the distinction between the impact of the Catalan nationalists at the federal level and at the level of Catalonia. Is there any evidence in elections that the voting pattern is different for nationalists when standing for the Catalan assembly than when standing for the national Parliament?

  (Professor Heywood)  Yes, there is. In national elections to the Spanish Parliament the regional parties tend to receive fewer votes as a percentage of the vote in the region than they do in regional elections. In regional elections the regional nationalist parties receive a much higher proportion of the vote than in the national elections. There is quite a difference. The Spanish electorate is sufficiently sophisticated to be able to draw a distinction between what they are voting for at regional level and what they are voting for at national level and indeed in the last two national elections, 1993 and 1996, the proportion of the regional vote altogether declined after several years in which it had been increasing in national state level elections, whereas in regional elections the proportion of the nationalist vote in those regions has been increasing inexorably since devolution was introduced.

  92.  Is it the case that when they serve in the regional parliament, in Catalonia do they use their presence in the Catalan Parliament to agitate for independence from Spain, or do they work within the system?

  (Professor Heywood)  This is very interesting because the evidence is quite clear that since the introduction of asymmetric devolution in Spain the demand and the support for independence in both Catalonia and the Basque country have declined. In the late 1970s and early 1980s there were significant demands for independence from separatist groups and organisations in Catalonia and the Basque country. Since the introduction of devolved power to the regions there has been an increase in support for devolution within the Spanish state and a decline in support for independence.

  93.  Does that mean that what you call the national parties are actually fighting elections on a devolutionary ticket, not the separatist ticket?

  (Professor Heywood)  Absolutely.

  94.  Have they shifted? I am thinking of the Scottish example. I am sitting next to Andrew Welsh here who is in the Scottish Nationalist Party and who has a separatist agenda. What you are calling the national parties in your answer to Mr McAllion do not have the same ideological drive that the Scottish Nationalist Party have.  (Professor Heywood)  This is an extremely important point. The Catalan Nationalist Party, the main one (there are several), the Convergence and Union Party (referring to Catalan Union, not in the whole of Spain), but also the Basque Nationalist Party in the Basque country, are far more similar ideologically to what the Scottish Nationalist Party used to be. They are nationalist but not either seeking separatism or independence.

  95.  If you have a nationalist sector, is there an equivalent of the Unionist viewpoint in Catalonia or have they changed their view?

  (Professor Heywood)  There is no significant equivalent.
Chairman:   In case you missed it, Mr Moore said that there is no real equivalent in Scotland!

  96.  Following on from that, how stable do you regard the positions in Germany and in Spain? Is there an inherent conflict? Are there tensions for either more or less autonomy as things have developed?

  (Professor Heywood)  As I said right at the outset, by the very nature of the way the Spanish system was set up it has an inbuilt dynamic of constant evolution. It is not a stable or fixed system which is not to say that it is a system on the point of imminent collapse. To assess the Spanish system I think you have to look at it in the context of a country which has historically, for the last 150 years, been riven by intense divisions between centralists and regionalists and which has experienced bitter conflict, most notably of course the Spanish Civil War. That the Spanish constitution is coming up this year to its twentieth anniversary of peaceful and functioning democratic stability suggests that a system which, when it was set up, caused all kinds of concerns about its inherent instability and impossibility of functioning has actually been shown to work exceptionally well and certainly much better than most people would have dared expect when it was established.

  97.  In the expanse of history 20 years is really nothing. It might be remarkable in the context of the previous 150 years but it is still a relatively short period of time.

  (Professor Heywood)  With respect, in measuring system stability in European politics 20 years in the post-war period is actually a very considerable length of time.

  98.  But in 100 years' time it might be a blip.

  (Professor Heywood)  In 100 years' time I really have no idea.

  99.  That is the issue that I am just trying to ask a little bit more about. Do you think, based on what we have seen within that 20 years, it will still be stable in 100 years, 50 years, 10 years or five years?

  (Professor Heywood)  Let me put it like this. Based on what we have seen within those 20 years I think the threats to the coherence and stability of the Spanish democratic state are considerably less in 1998 than they were in 1978.