WEDNESDAY 25 FEBRUARY 1998

PROFESSOR PAUL HEYWOOD, DR CHARLES JEFFERY and MR UWE LEONARDY

  100.  How far is that to do with Europe? How far do the devolved areas look to Europe rather than to Madrid?

  (Professor Heywood)  That is an increasing tendency and development but it is not a contradictory one. The fact that Europe is seen as being increasingly important, particularly for regions like Catalonia, which sees itself as one of the so-called four motors in these ideas of regional links with other European regions operating within what is widely referred to, particularly in Catalonia, as a Europe of the regions does not mean that there is any desire within Catalonia or the Basque country to undermine the structure of the Spanish state, but the European element is certainly important.

  101.  You are actually saying that because there is a dynamic for change within the Spanish system, that has turned out to be in practice, despite everyone's fears, a creative, positive dynamic that has led to stability?

  (Professor Heywood)  So far it has led to stability. It will continue to evolve and the critical question is what it will evolve into.

  102.  So dynamic change is not necessarily a bad thing and is not necessarily inherently unstable?

  (Professor Heywood)  I would go further. I would say the opposite are the bad things.

  103.  The situation in Spain is obviously that many of the people have lived in the two different systems. They may be dying off now but is it a different mentality than that in which people have only worked politically under the new democratic system. Is it evolving into something that is a more stable and acceptable situation? There was the sobering effect of the dictatorship that was there before on people who now have democracy, but people who have never lived under a dictatorship are a different kind of person. You know the point I am trying to make. Is there an acceptance that this is a natural thing to do?

  (Professor Heywood)  I think it is inevitable that if you are socialised into a given political system you are more likely to see it as a natural system and a normal order of things. Certainly the vast majority of young Spanish adults have precious little memory of anything to do with the Franco regime, just as the vast majority of our own students see the idea of a Labour Government as being something quite novel, almost bizarre. As you have the development of a new stable system then yes, people will come to accept it and see it as normal and become socialised into its ways.

  105.  Explain "demand has died down".

  (Professor Heywood)  Let me put it like this. There is less demand for independence and separatism in Spain now than there was 15, 20 years ago.

  106.  Can you measure it?

  (Professor Heywood)  Opinion polls show this quite clearly, voting patterns show it quite clearly. Voting for parties which stand for independence or separatism has declined. It can be tracked quite straightforwardly. Support for separatism and independence is lower today than it was 15 or 20 years ago. I am sorry but that is how it is.

  (Professor Heywood)  Okay. In Catalonia the only party which calls out for independence won eight per cent at the last national elections for the Spanish Parliament and slightly less than that in the regional elections for the Catalan Parliament. In the Basque country the main party, Eri Batasuna, the equivalent of Sinn Fein, the political wing of ETA, has never scored more than 15 per cent in any election and rarely now can expect to get more than about 11 per cent.

  108.  Can you also tell us whether the re-unification of Germany has made any difference to that stability?

  (Mr Leonardy)  First of all, on the question of stability, Chairman, the federal system constitutionally is entrenched even in what we call the eternity clause which is the clause in Article 79 of our constitution, that makes certain amendments to the constitution unconstitutional. One of them would be to do away with the federal system and with the participation of the Länder in the legislative process, so any amendment to that would not be constitutional. This has had a rather large effect in the debates on the intrusions of European law into German law and the distribution of legislative powers but I cannot go into details now. I suppose your question on more autonomy or less in connection with stability is pointing at some different matters. We are presently having a debate on should there be less co-operative and more competitive federalism. This would certainly not touch upon the stability of the system but it is a very important question. My reply to that would be that competitive federalism presupposes compatible units which make up the federal system and there we touch upon a very important field in which the German federal system needs reform, which is territorial reform. We have 16 units now after unification. We had 11 before that. In the minds of many people that number appears to be too large. There have been two expert commissions sitting on that problem. There are too many units on too small a piece of the surface of this globe which is highly densely populated. What we need is a diminution of the number of Länder and more compatibility in their administrative and also economic capabilities, which is a value ranking high even in the constitution where it is mentioned in Article 29 covering the procedure for territorial reform. Also there is an increasing debate on financial reform which touches upon a lot of very intricate matters which I cannot describe here. I would like to make a very brief remark if I may on this notion of the "Europe of the regions" which cropped up. I have always been opposed to that misunderstandable expression. I would much prefer the concept of a "Europe with the regions". What many people who are in favour of dissolving the member states in favour of having the regions to be immediate members of the European Community tend to overlook is the fact that if you really did that you would have more than 200 units in Europe making up the European Community. The result would be a very strong centralism on the European level, so you would have the exact opposite of what the supporters of regionalism are after.

  109.  I wondered if Dr Jeffery had anything to add to that.

  (Dr Jeffery)  I would like to make an additional point on that because I pointed earlier to certain tensions which exist in German federalism and said they were containable. I would like to elaborate on containability. The German system is highly structured. There are formalised relations designed to bring various bodies together, both on a horizontal dimension and in the vertical dimension. They take place within a consensual framework within an ethos of co-operation which seeks compromise and which in most cases actually achieves compromise. It is very rare for compromise not to be met. If compromise is not found then there are arrangements for constitutional adjudication. The Federal Constitutional Court can be brought to judge on matters of dispute of interpretation of competences and the court has issued many decisions in the history of the Federal Republic, some of which have favoured one level of government over the other. None of those decisions has been fundamentally challenged by either level. They are accepted and the adjudication is accepted as authoritative. There are a number of safeguards therefore both in the operation of formalised intergovernmental relations and in the constitutional adjudication process which can contain differences in perspective of one Land versus another or of the Länder versus the Federation.

  110.  In your reading of the Scotland Bill and the other aspects of this debate, do you think that the United Kingdom will have similar mechanisms which will encourage that stability?

  (Dr Jeffery)  I think this is perhaps the weakest or the most vague point of the proposals which we have seen so far, partly because the body which has been chosen to oversee disputes of competence, the Privy Council Judicial Committee, is not one which figures highly in the public imagination. Whether it can have the legitimacy of decisions of the German Constitutional Court, which is the most respected political institution in Germany, will remain to be seen. It also remains to be seen what authority any decisions it makes might actually carry in this unusual constitutional order we have with the doctrine of the sovereignty of the Crown in Parliament. The judicial system does not have the capability of imposing solutions on other material authorities. Its decisions can be overturned in subsequent legislation even if the existing legislation is not being applied correctly. That situation does not exist in Germany. The decision-making of the Constitutional Court is final and authoritative. It cannot be challenged.

  111.  In your written evidence you commented on a strong centripetal tendency in Germany (which has been explained to me means a tendency towards a respect for the centre if you like). If that consensual framework was not there, if there was not the spirit in Germany for compromise and acceptance of the constitutional adjudication, what do you think might happen in Germany if the same kind of attitudes you find in the United Kingdom were prevalent in Germany?

  (Dr Jeffery)  That is a counter-factual question because it does not really apply in Germany.

  112.  Try to imagine if it did.

  (Dr Jeffery)  I think it is impossible to imagine. The Germans love constitutions and love working within constitutional roles. This is a very strong spirit of government, not just the formal element of government but the spirit of government. It is very rule-bound and looks to rules to solve any problems or conflicts which might emerge. The legitimacy of that kind of approach to politics has not been significantly challenged since the Second World War.

  113.  It is often argued that the proportional representation in Germany has been a very stabilising influence in holding the country together. It has not been the norm in the United Kingdom. Do you think there are any implications of proportional representation when we do not have that same kind of coherence as a nation?

  (Dr Jeffery)  I think that is a very important question because the proposal for Scottish devolution will form part of a broader constitutional reform process and imply a need for sharing power. We do not have tremendous experience in the sharing of power with this doctrine of the sovereignty of the Crown in Parliament. Proportional representation in Germany is certainly something which imposes a requirement to co-operate in the exercise of power and it raises for me a chicken and egg question, i.e. if you establish structures which require co-operation do people co-operate no matter what their previous traditions may have been?

  114.  That is what I am asking. What do you think? For example, it is very clear that the SNP has got a very different line, a very different philosophy, from the other unionist parties. What are the implications of that for proportional representation?

  (Dr Jeffery)  I think one of the established features of UK politics has been its pragmatism. I suspect that political parties, perhaps even including the SNP—

  115.  Be very careful how you finish this sentence!

  (Dr Jeffery)  —— may even, and also, find themselves working happily and effectively within those structures. A belief in co-operation which overturns the adversarial tradition which has prevailed in British politics may eventually come, but I think the requirement for co-operation will generate its own effective working practices in the short term.

  116.  Is there not a tension in asking for the Scottish Nationalist Party who want to end the association with the United Kingdom Parliament to work with Parliament which is meant to strengthen the association with the United Kingdom Parliament?

  (Dr Jeffery)  Much will depend there on the outcome of elections of that parliament and the balance of power that exists between political parties and who forms governments. I do not want to speculate on that.

  117.  We are going away to Bavaria and Catalonia as a Committee. What are the features of the systems which you think as Scots about to embark upon Scottish devolution we should be looking for?

  (Dr Jeffery)  Bavaria is very interested in Scotland and Scotland in Bavaria because they share certain similarities of historic statehood, of a sense of separateness vis-aÁ-vis the rest of the country.

  (Mr Leonardy)  Distinctiveness!

  (Dr Jeffery)  A separate sense of identity within the wider framework of the statehood of that country, yes. I would imagine that you would be very interested to find out how that strong sense of Bavarian identity is actually used or pervades the way Bavaria interacts in a multi-layered political system. I think you will find that Bavaria organises itself very well administratively to represent that sense of distinct identity in German politics. Its current leader, the minister president of Bavaria, Edmund Stoiber, articulates that very well. So there is an example of a certain style of leadership which you might wish to look at. Bavaria has been the most assertive of the German Länder in addressing the implications of European integration and arguing for the concept of subsidiarity really to be applied.

  118.  What are the main features of Catalonia?

  (Professor Heywood)  I do not know if the Committee is aware that the referendum in Scotland took place on Catalonia's National Day.

  119.  I was not.

  (Professor Heywood)  That allowed me to write a rather neat article in one of the newspapers! Catalonia does have a great interest in Scotland. They have several shared traditions. What I would say to the Committee is if you want to understand how the Spanish system of asymmetric devolution works you cannot just go to Catalonia. The key thing about the situation is the relationship between Catalonia and Madrid, the central state and the region. So if you go to Catalonia alone and certainly if you just go to Barcelona, you will only get one side or a particular understanding of what is involved in asymmetric devolution. In order to understand that properly I think you also need to go to Madrid and talk to people in Madrid and particularly the people in the central government responsible for relations with the autonomous communities because it is precisely that relationship which is the key to making it work.
Mr McAllion:   It sounds like a second trip is necessary!