WEDNESDAY 25 FEBRUARY 1998

PROFESSOR PAUL HEYWOOD, DR CHARLES JEFFERY and MR UWE LEONARDY

  120.  One of the problems here is in comparing like with like or not with like. I notice in the German example that the stabilising factor would be in linking a sub-state unit with a constitutional court. I noticed the extreme puzzlement over this concept of sovereignty, especially when looked at from the German point of view. The Länder seemed to be the key unit in relation to the federal system and also to local government, but in the UK you have got a highly centralised system with a limited devolution of powers based on a territorial bureau of internal affairs and there is no constitutional court. Do you see that as being a problem in terms of stability? Who decides the disputes without the general logic of a constitutional court?

  (Mr Leonardy)  It is difficult for me to reply because, as you quite rightly stated, the system is indeed a very different one with a written constitution, with the strong powers of the Constitutional Court. I think there is one principle in German federalism which should not go unmentioned at this hearing and which although hammered out by lawyers and also established by the constitutional court pronounces some federal ethics. We have the principle of federal comity or federal loyalty, the German word is Bundestreue. It permeates the whole of the federal structure not only in the demarcation of competences where the parts of the federal system on the federal side and on the Länder side are obliged to observe mutual considerateness, as the court said in making use of their respective powers. That mutual considerateness, which was referred to by the Court, was applied by also to political behaviour regarding the way in which the federal government treats one particular Land or treats the community of the Länder. There have been very strong statements in a judgment which the Constitutional Court passed in Adenauer's days when there was a legal controversy on what is now the second television programme of Germany because Adenauer wanted to establish that as a federal programme and the Constitutional Court said, "No, you cannot do that and the way in which you tried to achieve that was unconstitutional because you disrespected the principle of federal comity." It is a kind of political ethos. It sounds very lyrical to talk about federal loyalty but it is the legal standard which is in the whole system. It is not written in the constitution, you will not find any word about it in there, but it is existent in German political practice and has been ever since 1916, so it is not an invention of the Federal Republic established in 1949. I would like to make one remark on Bavaria. There is one peculiarity in the structure of political parties that applies to Bavaria which is the fact that Bavaria has the CSU, which is the governing party, and the CDU does not exist in Bavaria. They are independent parties but they are sister parties. They have a joint parliamentary party in the Bundestag. In the standing orders of its joint parliamentary party in the Bundestag, there is even the provision that no change shall be made to the federal structures, including also European constitutional structures, without the consent of the CSU. So in the political party structure the CSU by being an independent party from the CDU has a strong position. This could be the only uniqueness of Bavaria one could trace in the field of institutions, but it would be quite wrong to say that Bavaria is the first among the German Länder. If I may suggest you widen your travel plans, I would suggest you go to Bonn where the centre of the federation is, after all. Not only is it with the Federal Government but also with the Bundesrat and with the network of Länder missions surrounding it. That would give you a lot of insight. I am not saying that it will not be worthwhile going to Munich for Bavarian beer or other pleasant things like that! In order to study the actual way in which the system works I think it would be worthwhile to go to Bonn, too.

  121.  You are asking us to look at the whole system. One of the difficulties you mentioned earlier was the European words which have different meanings because of the different political culture, i.e. competences and just now you mentioned mutual considerateness. You are saying the key concept is the relationship involving fairness between the different units but then that that fairness would be judged by a constitutional court. What you have described is a method of solving disputes, but how can you do that when there is no equivalent in the UK of a constitutional court? In fact, those disputes would be solved by the politicians and chances are by this House rather than the Scottish Parliament. Where is the fairness in the stability of that?

  (Mr Leonardy)  I do not think one can find a reply to that as a lawyer. If I see the different points of departure which you have on the notion of sovereignty, with which the Chairman opened the hearing, I think that different departure is a kind of constitutional entrenchment, is it not? The Scots consider the sovereignty of the people to be behind the Scottish Convention, the Scotland Bill and the future status of Scotland. This is not written anywhere and it cannot be written that the national parliament could not theoretically override it. But would you not agree that it would be very difficult politically to do so which would come very close to a constitutional entrenchment as we know it?

  122.  Here we come to another problem over words in that what you call a national parliament to me is the Scottish Parliament. The UK Parliament is the state parliament. The UK consists of several nations. Can I ask about relationships between central government and Parliament. The political composition of the state and sub-state parliaments and administrations is not always similar. Can you tell us how, when these problems arise, they are resolved? What advice would you give to the devolved Scottish system?

  (Mr Leonardy)  This situation is the normal situation in Germany because the composition of the Länder governments who form the Bundesrat is always different. We have never had a time in the Federal Republic in which all Länder governments were headed by the same party. Nowadays we have the situation, and we have had it for a couple of years now, where the political majority in the Bundesrat in the second chamber is different from that in the first. That needs to be handled in cases of controversy, which of course are more numerous in a situation like the one which we have presently. But then there is the Mediation Committee which is an institution that always comes into play when there is clash between the two chambers. It consists of 16 Lander representatives, one for each Land, and 16 members of the Bundestag. The task of that committee is to try and find a compromise and then to send the Bill back to both Houses. It has very substantial procedural powers to arrive at a compromise as, for instance, the power that it can say to both Houses, and in 98 per cent of all cases it does, "You can either vote on the whole package or just leave it out but you cannot mutilate the package again which we present to you." The second, which is also a difference to the Conference Committees between the Senate and the House of Representatives in America, is that the composition of this Mediation Committee is very stable. You can only change your own member in that committee during the lifetime of one Parliament a maximum of four times and even that is very rarely reached. These people sitting there at the table know each other very well and know everybody's tricks in negotiations. You ask how is controversy managed. It is also managed by a large number of hinges between the party system and the federal system by which I mean that, for instance, there are regular meetings of those Länder governed by the Social Democrats on the one hand and those governed by the CDU or the CSU on the other preceding every meeting of the Bundesrat. There are numerous other bodies organised on the political level which you will not find in the constitution, the function of which is to organise the consensus. I would even say that party influence in the federal structure, as in many cases, helped to solve federal crises rather than being a load on them. They have rather helped to get out of difficulties by and under the compulsion of getting to a compromise.

  123.  So you are saying that within the political system there are forces which tend to——

  (Mr Leonardy)  Yes. It is the forces which lead you to compromise because about 55 to 60 per cent of all Bills on the table of both Houses are what we call Consent Bills which means that they need the consent of the Bundesrat in order to come on to the Statute Book. So every government will be very anxious to fulfil its programme as much as it can but under the pressure of compromise which is necessary and which is not always going along party political lines. There are also situations in which you have genuine regional interests transgressing the party political line and forcing you to compromise there.

  124.  I would like to ask you about the Constitutional Tribunal in Spain and the Federal Constitutional Court in Germany. How is their intervention invoked? English doctrine is the sovereignty of Parliament and no Parliament can define a future Parliament so therefore there is no entrenchment of any Scottish powers in the Scottish Parliament, which is a sub-unit, whereas the Scottish doctrine is the sovereignty of the people historically. So if the Scottish people vote democratically then their Parliament should carry out their wishes. When it comes to competence, that is the difficulty of a sovereignty within the UK. Who in the German and Spanish system would invoke the constitutional mechanisms to decide about the competence of the devolved parliaments or the central one?

  (Professor Heywood)  In the Spanish case it is quite simple. Both the state government, the Spanish government and the devolved government can appeal against any piece of legislation to the Constitutional Tribunal for a ruling if they feel it conflicts with their own competence. If you look at what is happening in Spain and just going back to your original question, what guarantees could there be in respect of laws given that the system proposed in the UK is significantly different to the one that exists either in Spain or in Germany, you cannot take them as models because key elements of them will not exist in the UK and the Constitutional Tribunal or the Federal Constitutional Court is one of those key elements which would play a critical part in dealing with those kinds of disputes. If you take the Spanish example, what we have seen is a process of institutional learning. In the initial stages of devolution a very high number of regional proposals were appealed against by the central government, a high proportion but not quite as high a proportion of central state government pieces of legislation were appealed against by the regions. Over time both of those figures have been falling and what that reflects is a realisation on the part of both regional government and central government that co-ordination is critical and the mechanisms for co-ordination, of course, can vary. They can be set up according to the system in question. In Spain the key mechanism for co-ordination is sectorial committees which reflect the various ministerial departments at both central state level and regional level to ensure that in the drafting of legislation you avoid as much as possible precisely these kinds of conflicts, but it requires a will. You can create the structure; you cannot guarantee that it will work.

  125.  Dr Jeffery, you expect "regularised interaction to discuss the implications of the legislative programmes of the Scottish and UK Parliaments for each other." I am very interested in this view. Could you enlarge on this a bit?

  (Dr Jeffery)  It is a view which reflects the division of power between the UK and Scottish authorities which is foreseen, which is the separation of powers, which means that, for example, the Scottish Parliament will be legislating on health matters at the same time as the UK Parliament is legislating on health matters for the rest of the UK. Although there is no requirement in the White Paper or the legislation to maintain some kind of cross-UK uniformity of standards, I think there will be a pressure for both sides to ensure that they know what the others are up to and to ensure as far as possible compatibilities and avoid a situation where services differ dramatically on either side of the border which would be unusual in a coherent state structure.

  126.  In your reading of the Bill do you feel that could be strengthened by adding some suggestions which are in your previous papers?

  (Dr Jeffery)  I am not sure that I would recommend applying insights from Germany. I do not think that the high degree of formalisation which pervades these types of relationships in Germany is necessarily compatible with UK traditions, nor necessarily advisable in the light of this experiment on the reallocation of powers in the United Kingdom. I suspect that forms of interaction will emerge organically and will become embedded over time and I would not think it is the right thing to do to try and set them into stone at the outset. A typical German way of dealing with that kind of problem would be to say that other laws which will follow will embed further details pursuant to this legislation.

  127.  Could I move on to Mr Leonardy still on the same point. You have suggested having joint select committees. Could you enlarge again on that point with its relevance to the Scottish Parliament?

  (Mr Leonardy)  I am grateful for that question because I think it fits into the debate right now. You asked about the Constitutional Court and also about whether or not there is a need for some kind of mechanism of resolution of disputes at the UK level. I think one must make a distinction between a court-like institution which works on quite different standards than a political institution and one must also see that the division of legislative competence is rather clear between Scotland and the United Kingdom so that there is no need for any kind of a third chamber or something else. I think there is a need for a public forum, for a parliamentary debating forum on the UK level to which problems of devolution to Scotland can be brought to. This is what I tried to outline in what I said on this proposal of a Joint Scottish Affairs Committee because I cannot imagine that any other institution would be envisagable. A third chamber would be out of the question. In the House of Commons this could hardly be done. So why not have the Scottish Members of Parliament or maybe a number elected by them form such a Joint Committee together with the Scottish Ministers who would then be part of the House of Lords in the status of temporary Lords during their term of office so that they would have a double-sounding board for Scottish problems? They would have the House of Lords as such where they could use the old classical device of moving for papers simply to make a matter a subject for debate and they could also bring that and their administrative experience to the Joint Committee where the function could be, first of all, as I said, to be a window into the intergovernmental structure. I do not think it is advisable for any federal system to have intergovernmental relations being a rather secret activity which the citizen cannot look at because it lacks transparency. For me this is one of the most important functions of the Bundesrat, to be that window into the intergovernmental structure in Germany. That also includes the committee system because all the committee recommendations are being made public and many of them originate in what we call the Third Level of horizontal coordination between the Länder so that this window function is really performed. Then the function of such a Joint Committee could be to debate overlaps of reserved and devolved powers because I think it is an illusion that one can construct watertight exclusive competences. There is no such thing, particularly under the inference of European law which does not care for these internal classifications and differentiations between legislative competences at different levels. You will inevitably have overlaps between the two areas. The mere fact that there can be an open political debate would help to solve disputes on the demarcation of powers, for instance, or even on the necessity of joint action in a political way and thus to perform the function which no court could perform because the court works on quite a different basis of legal standards and nothing but legal standards and does not have to take into account any political criteria. Also, this body could be performing a function which the Bundesrat regularly performs even in an annual way, which is to debate the further facilitation or development of devolution in general. We have a habit whereby when the new President of the Bundesrat is elected, which is a formal election. It is a system of rotation between the Minister-Presidents of the Länder beginning with the largest Land and after 16 years ending with the smallest Land. Whenever that happens in October of every year and the new President is elected, the outgoing President reviews the last year and analyses it on the criterion what has this last year brought for or against federalism. Then the incoming President makes his inaugural speech in the first session in November and gives his own view looking into the new year of office and makes his statements about what he or she thinks are the priorities or maybe needs for reforms of the federal system. So all of this is done not in a way which has any legally binding force, there is no passing of any Bills on that kind of thing, but it is a public debate. It can sometimes result in a Resolution of the House with a political kind of binding force but not legally binding force, but it is the national forum. It is the forum for public debate on matters connected with the whole structure.

  128.  Could I just confirm whether you see these joint select committees having any form of powers or do you see it purely as a mechanism for joining the machinery of government to the Scottish level and the UK level?

  (Mr Leonardy)  It should be able to invite representatives of both levels of government and, of course, the Scottish Ministers sitting in the House of Lords would sit there vis-aÁ-vis the representatives of the UK government in the normal functioning of the House of Lords, too. By doing so they would have the chance of debating or making something the subject of a debate in the Lords, too, if and whenever there would be a regional Scottish administrative, economic or financial interest in a debate on a UK Bill or a piece of reserved legislation which also has its connections with the fact that you will never have any watertight separation between the two realms.

  129.  What you are saying is that the Scotland Bill has no mechanism within it for a formal exchange of ideas between the Scottish Parliament and the Westminster Parliament. Are you saying that there really should be a body like that, whether it is the body you suggest or some other body, and that without some kind of joint mechanism like that there could be a lot of issues that are going to go unresolved and perhaps may escalate to major differences? On the German experience, you are saying it is absolutely crucial that there is such a body, whether it is what you suggest or not, but something that will bring the two parliaments together to discuss areas of mutual interest or mutual concern or mutual difference.

  (Mr Leonardy)  My fear is not so much that these issues of mutual interest would go unresolved but most of them would go into the jungles of intergovernmental relations and be hidden there for a general political debate. A lack of transparency would really darken the picture for the politician and for the public debate. If, for instance, you compare the structure of intergovernmental relations in Germany where it focuses in the end in the Bundesrat and that window to the area of those relations with the same field in Canada, you will find that the Canadians have a wide-ranging network of inter-governmental relations between their provinces and between the provinces and the Federal Government in Ottawa. Each province even has a ministry for intergovernmental relations but there is no reflection in the political institutions because the Canadian Senate is an institution which still awaits reform, to put it very mildly. So if we compare the two countries with each other, I think Germany has more transparency in this field of intergovernmental relations, which was mentioned many times by Dr Jeffery, and these are dangers if that is left on its own. So there must be some window into it. There must be some place to debate questions of political impact not only in the Scottish Parliament but also in the UK Parliament, also under the very pragmatic question that the general press and media would concentrate much more on the UK Parliament than they would on the Scottish Parliament. If you look at the press echo which the German Länder legislatures have, that is really minor as compared with the echo which the Bundestag and the Bundesrat have.

  130.  Everything you have said echoes the words you used earlier, for example mutual considerateness. From your studies of constitutions you seem to see them as a living, growing, changing thing. Is there not a danger that the idea of devolution might be frozen for all time? You said "pursuant to legislation". The trouble is, in this House when legislation goes through, that is it. It is very difficult to get further legislation to meet changing situations. You have been suggesting a political mechanism through the House of Lords or some other way to try and get more fluidity, get some change into the system rather than have it frozen. If you do not get such a mechanism for mutual considerateness what do you see the dangers being or how do you see the thing developing?   (Mr Leonardy)  If I may reply Mr Chairman, this was the reason for inserting into my main points which I gave to you as the last point that the function of this Joint Committee should also be to facilitate the further development of devolution in general. Devolution should not be and indeed cannot be a frozen thing. If you look at the record of constitutional amendments in Germany since 1949 we have had more than 40 altogether which is quite surprising and quite a large number if you compare that to amendments to the American constitution which is much older. Most— this is my main point, Mr Welsh—of these amendments have been in the field of relationships between the Federation and the Länder. There has been the need for flexible adaptation over and over again not only in the demarcation of legislative competences but also in other fields such as, for instance, and most importantly in the field of the rights of participation of the Länder at the European Union level. It was shaped by the new Article 23 which we have in our constitution now and which went along with the Maastricht Treaty and its ratification. To give an example of how the Länder managed to form a front against the Federal Government, this amendment was understandably opposed very heavily by the Federal Government because the Foreign Office and the Ministry of Economics did not want to be bound by stronger participation of rights of the Länder in the Bundesrat. So the Bundesrat unanimously and across all party political lines said, "Look, Federal Government, if you are not prepared to negotiate on this matter we, the Bundesrat, will not ratify the Maastricht Treaty", so they had to take it or leave it. That finally led to compromise on that field which is another example of the need to arrive at compromise and we did. So all of that illustrates that any federal system, any regionalised system will always be in a state of flux. There will always be the need for adaptation and there will never be a rigid end to it all, as long as you have the general consensus that to have a system of this kind as such is a useful thing and as long as on the basis of that insight mutual considerateness along the principle of federal comity is growing and continuing.

  131.  But underlying that is the basic question of how you alter the constitution and how easy or difficult it is.

  (Mr Leonardy)  We need two-thirds in both chambers which means practically and politically that the two big political parties must consent in the Bundestag and that also two-thirds of all votes of the Bundesrat, which means two-thirds of all the votes of the Länder, must be behind it. As I said in this example on European participation, you will not always get the two-thirds consensus in both chambers from the very beginning. You must work on it and that is done very much on give and take and on some pressure for compromise.

  132.  You said there had been 40 amendments. How many failed attempts to make amendments have there been during the period of time?

  (Mr Leonardy)  Pardon.

  133.  You said there had been 40 successful amendments. How many unsuccessful attempts have been made to make amendments?

  (Mr Leonardy)  That is a difficult question but the number of unsuccessful attempts is much smaller because in Germany a serious attempt at any constitutional amendment would only be made if you have some probability of its success. Of course there have always been suggestions for constitutional amendments by minor parties such as now we have some motions on the table of the Bundestag by the Greens and also by the PDS aiming at various additional elements in the constitution and so on. Anybody tabling a thing like that would know from the very beginning that it will hardly be successful. So the record of constitutional amendment in Germany is quite different from the Australian one to which you might refer where there have been many attempts to change the constitution by referendum but only a very small number have been successful. That is explained by the different methods of changing the constitution. We do not have a referendum on it; we have a two-thirds requirement in both chambers.

  134.  Can I be clear about what you are suggesting for this country. The joint committee would consist of Members of the Scottish Parliament and Members of this Parliament?

  (Mr Leonardy)  No, not of the Scottish Parliament but the Scottish Government would be represented in it. Scottish Ministers——

  135.  When you say Scottish Ministers, which Ministers are you referring to?

  (Mr Leonardy)  The Scottish Ministers as a collectivity.

  136.  The Scottish Government?

  (Mr Leonardy)  The Scottish Executive, yes. I understand, if I read the Scotland Bill correctly, that there is legally at least no such thing as the Scottish Cabinet, they are collectively referred to as "the Scottish Ministers".

  137.  That will change!

  (Mr Leonardy)  Right but at least in the language of the Bill they are the Scottish Ministers. My proposal would be to have an element in the Lords these would be equivalent to the basic composition of the Bundesrat which is composed of the members of the Land Governments, not of the legislatures. Nonetheless, the legislatures elect their governments and the governments are dependent on the confidence of the state legislatures. But the membership of the Bundesrat is only given to Members of the Land Government. So the opposition in any Land Parliament is not represented in the Bundesrat.

  138.  We do not have that system here. You are suggesting that Members of the Scottish Executive would have the right to sit in the House of Lords as a Committee in tandem with Members of the Government here?

  (Mr Leonardy)  They would sit in the House of Lords as normal Members, they would be able to participate in debates, also in debates with Ministers of the United Kingdom.

  139.  They are supposed to be back in Scotland governing in devolution. Whether they are going to have time to come down here and sit in debates I do not know. It does not seem a very practical solution to me.

  (Mr Leonardy)  Well the practical deliberation behind it is because the Scottish Ministers will be the highest level of inter-governmental relations on the Scottish side and they will have to organise them. They are responsible for them, and there should be the input from that network of inter-governmental relations by the Ministers themselves, and if need be at the United Kingdom level and in combination with the Scottish Members of Parliament in the Commons. That is the idea behind it.