WEDNESDAY 25 FEBRUARY 1998

PROFESSOR PAUL HEYWOOD, DR CHARLES JEFFERY and MR UWE LEONARDY

  140.  What we have is a logical European mind looking logically at this problem! We do not have the same here. The reality is that your situation would be very generous because the Scotland Bill does not allow the Scottish Government to summon persons, papers and Ministers from Westminster but does allow Westminster to summon Scottish Ministers before committees here. Nor is there any statutory right to European representation in any shape or form within the Bill. So what you suggest is very generous. What is lacking and what is behind your suggestion is some mechanism to absorb friction, to solve problems, and to mutually look at a shifting, growing, changing relationship instead of something frozen in time which would create dangers for everybody of course.

  (Dr Jeffery)  Could I respond to that because I used these words "pursuant to legislation". That was not a case for freezing something in time. It was rather exactly the opposite—to let these relationships emerge and evolve. These legislative proposals are a break from British political tradition and they will require new mechanisms and new solutions. We cannot see all those mechanisms and solutions now. I am sure this Committee will play a role in lubricating relationships between the Scottish and United Kingdom authorities. I am sure there will be an equivalent body in the Scottish Parliament doing the same thing. I am sure there will be networks of inter-governmental and party political relationships linking the two levels. I think we will see structures capable of lubrication and facilitating co-ordination because they have to evolve.

  141.  I do not really want to compound this but do you think there will be further problems given that both Parliaments will be elected under different electoral systems and that the Scottish Parliament, which has a PR element, is more likely to reach a consensus on any problems we have than the United Kingdom Parliament, given that it would be possible under the PR system to get a two-thirds majority on anything in dispute. You would find it much more difficult here, given the whipping system we have, to get a two-thirds majority for anything on the floor of this place. Even within the problems that we might encounter there might be further problems from both ends that we can get a consensus at one part but not at the other. Do you think that that will add to the problems that there will be?

  (Professor Heywood)  Yes.

  142.  In Germany and in Spain do the sub-national assemblies debate reserved powers and do the national assemblies ever debate devolved ones?   (Dr Jeffery)  Yes, they do debate reserved powers. They can debate anything they like.

  143.  But they cannot do anything about it, they can only debate something. What happens if they debate it and they decide that the other body has got it wrong?

  (Dr Jeffery)  There are mechanisms for making such concerns felt. New ones have been introduced recently in European decision-making where the Bundesrat can issue opinions which the Federal Government can dismiss but it must respond to matters of federal level competence.

  (Mr Leonardy)  In the various Länder the legislatures are not refrained from debating matters which are in the legislative competence of the Bundestag and the federation but they cannot pass any Bill on that matter. They can pass a resolution to the effect that this legislature expects of its own government to have that and that view in the Bundesrat. Of course, in the political mechanisms surrounding that you must see that the majority in any Land Parliament is of course the majority of the government which represents the state in the Bundesrat. It will hardly be the case that there will be a vote to have a particular viewpoint in the Bundesrat which would not be supported by the government itself because of the majority system. But from time to time you will find attempts by the opposition in Länder legislatures to table a motion and to make a Bundesrat a matter of public debate in the Land legislature. This is an instrument that to my mind could be used much more frequently but the Länder legislatures are rather hesitant to do that. There is no constitutional provision stopping them from doing so as long as they do not think that they can attach any legally binding force to their resolution. It is a political thing not a legal one. The European Parliament also often debates matters which are not within the competence of the European Parliament.

  (Professor Heywood)  If I could just add a word on the situation in Spain which is more or less identical in terms of the regional government being allowed to debate any aspect of reserved legislation at state level and vice versa. The critical difference of what can you do about it depends on political contingency. At present the Catalans can do an awful lot about it because the Madrid government is dependent on their support.

  144.  Mr Welsh has already mentioned that in the Scotland Bill Scottish Ministers can be called before Committees of this House but not vice versa. Again, what is the situation as regards one layer of government having the right to call Ministers from another layer of government to account or to answer questions that they wish to put?

  (Mr Leonardy)  In Germany the question does not arise because we have the second chamber organised on the federal principle and it goes without saying that the federal Ministers, or in most cases their civil servants, are obliged to go to the Committee if the Committee wants to summon them. In most cases they are also there even without being summoned simply because they want to be able to participate in the Committee's debate. Very often we in the committees of the Bundesrat ask questions to the representatives of the Federal Government. There is no right of the Bundestag or any committee of it to summon a Land Minister. But this does not mean it does not happen that committees invite Länder Ministers to participate, either to give evidence or debate with the Committee. That happens quite often, particularly in the Committee of the Interior where the Bundestag Committee will quite naturally be interested in hearing, for instance, what the Länder Ministers for the Interior say on the repatriation of Bosnian refugees, just to give you an example. So they cannot be summoned but they can be invited and it would be just a matter of constitutional politeness to follow that invitation. The other way round, no committee or no plenary of any Land legislature would be able to summon a Federal Minister. If they want to have information from the Federal Government or from a specific department then in most cases that would be given via the own Land government, but it could also happen, although these cases are very rare, that a committee of the Land legislature would invite federal civil servants to give information. Normally the channel would be through its own government, but there is no summoning.

  (Professor Heywood)  The situation in Spain is identical. There is a reciprocal right of invitation but certainly not to summon. The second chamber in Spain does not work as effectively as a chamber of territorial representation. There is a debate about it at the moment to reform it, but it does not work like the Bundesrat does.

  145.  We have already touched a little bit on how this Committee might reform itself. Is that the same for the Secretary of State for Scotland and The Scottish Office? Do you think they are likely to disappear under the new devolved Parliament or will there still be a need for these bodies of people but doing a slightly different job?

  (Mr Leonardy)  This touches on my proposal. I am not able to comment about the Secretary of State for Scotland because I simply do not know enough about this. As far as I remember about the future of the office, having read it in the White Paper, the idea was that it should gradually go into the background at the same speed at which the Scottish governmental system develops. This brings me back to this idea of a body to discuss issues of joint interest. I can hardly imagine this Committee continuing without the task of discussing issues of mutual interest, Scottish interest plus UK interest in the areas which I tried to outline before. That would be the basic idea. Of course, in my proposal there would be other elements in it. To have this Committee as a Scottish Committee on reserved powers only would be a rather questionable and marginal thing, would it not?

Miss Begg:   It depends how important you think our powers are!

  146.  My questions are on Europe. Can you tell us something about the position of the Länder and regions regarding representation in Brussels? Is it formal or informal representation? Is it for lobbying purposes or information gathering, or is it representational?

  (Dr Jeffery)  It is formal in one sense. All of the Länder have offices in Brussels which are recognised in agreements between the Federation and the Länder domestically. That formality does not extend into the realm of international law. They are not international law representatives of the German Länder. Their role is primarily to serve the domestic policy formulation process by getting hold of information from Brussels, by feeding information into Brussels but making that information useable in the policy co-ordination processes at home. I am not entirely sure if that is best describable as a lobbying function. It is more an intelligence function.

  (Professor Heywood)  The situation in Spain is almost identical. All 17 regions now have representation in Brussels, but it is exactly the same as the situation described by Dr Jeffery, it is primarily information gathering to feed back into debates in Spain.

  147.  To what extent do the Länder and regions now maintain relations with other countries otherwise than within the EU? I think Dr Jeffery has already referred to this in page 3 of his submission where he talked of Scottish Executive Ministers speaking to the European Council of Ministers.

  (Dr Jeffery)  Yes I did, perhaps rather rashly! The basis for comparison there are the rights which the German Länder have to appear in the Council. They do so collectively, they do so represented by the Bundesrat and they do so in matters essentially concerning their exclusive competencies at home, so it is a relatively narrow field. When I wrote the paper I do not think I was completely up to speed with the debates about how Scottish Executive Ministers would feed into similar processes within the UK context. I suspect there that there could be an argument that in all areas where there are devolved powers that Scotland should have the right to lead the discussion or the Scottish Executive Minister should have the right to lead the discussion in the Council. That might not work very easily because with a Scottish Minister talking about health, and a United Kingdom Minister talking about health, who speaks for the United Kingdom? Positions will necessarily be co-ordinated before the Council and that could well be the most important stage. Speaking in the Council is perhaps icing on the cake. It is quite sweet and nice but not very substantial. The real meat of the co-ordination will happen beforehand.

  148.  So you think we should have co-ordination between the Parliaments before we get that far and still we have no mechanism for doing that at the moment.

  (Mr Leonardy)  Did your question also refer to relations between the Länder and states other than Member States of the European Union?

  149.  Yes.

  (Mr Leonardy)  Because that is a fairly wide field in the German structure too. First of all, it needs to be said that the Länder, with the consent of the Federal Government, also have the right to conclude treaties with other powers. Of course, the precondition would be that the Federal Government gives it consent and that it is also constantly informed on negotiations. But there is a field in which the Federal Government is completely out of the picture and does not intervene at all and that is the field of the rather numerous partnerships and twinnings between the German Länder and in other parts of the world, for instance Lower Saxony has one with the Province of Eastern Cape in South Africa and with certain autonomous regions in Russia and so on. That is conducted completely independently of the federation but of course the Foreign Office would be informed on important things that happen there. Then there is another field which I am sure will creep up in the relationship between Scotland and the United Kingdom in the future too, which is the question of what happens if in the field of foreign policy, which is a reserved power, the United Kingdom negotiates a treaty with a foreign power (other than the EU Member States) which touches upon devolved powers? Who will then look after the implementation of that part of the treaty? Would it have to be United Kingdom law or would it have to be Scots law and who would be responsible for it? If it is United Kingdom law would that not open the gates to undermining devolved powers in all the areas in which you have agreements and treaties with foreign powers? This controversy crept up very early in the Federal Republic of Germany. There have always been two interpretations of the constitution, by the Federation and Länder, the federal level saying it is up to the Federation to transform, the Länder saying, "No, in our exclusive fields of legislative competence it is up to us." Now the solution was found in a very pragmatic way which is rather typical of the workings of German federalism. We are not as theoretical as you might think we are. It was found in what is called the Lindau Agreement which is something like a gentlemen's agreement between the Federation and the Länder. It set up a Permanent Treaty Commission of the Länder that meets monthly (and of which I am a member for Lower Saxony). It is informed by the Foreign Office and other federal departments whenever there is an intention to negotiate a treaty with a foreign power that touches on the exclusive powers of the Länder, as in education which it does very often. This is then sent to that Commission, we discuss it, we co-ordinate it with our own governments at home and we convey to the Federal Government our demands on which items should be represented in the further negotiations with that foreign power. The result is that the Federal Government can only ratify such an agreement under international law by depositing the document of ratification after all Länder governments have said, "Yes, we will be satisfied with that." By this mechanism it is avoided that the exclusive powers of the Länder are undermined by the exercise of the foreign affairs power of the Federation. That is a matter which will certainly creep up in your discussions too because, of course, foreign affairs is a reserved power in the list added to the Scotland Bill but that does not mean—I am repeating myself—that there are watertight segments. There are many relations between reserved and devolved powers as, for instance, in this rather important example. To give you an example of what it might mean for a federal system, in Australia there has been the so-called Dams case of Tasmania in which the Federal Government claimed that it has all the powers connected with a foreign treaty and there has been a storm of protest by the Australian states against that but up till now they have not been very successful.

Mrs Adams:   I have great fears that we will not be so logical or polite!

  150.  You have answered part of the question I was going to ask. It is to go back to your submission, Dr Jeffery, on the role of the Scottish Executive and speaking on behalf of the United Kingdom. Do you think that it would only be done at the express invitation of the UK Government itself? Take fishing policy where Scotland has a very large input into fishing policy or something of that nature, how could such a Minister be accountable really if he went there from the United Kingdom Government?

  (Dr Jeffery)  If a Scottish Executive Minister were in the Council that Minister would not be representing the United Kingdom Government but the United Kingdom. The two things are not necessarily the same. The process of invitation to do so is probably a power which does remain with the United Kingdom Government unless we suddenly go all German and write out a series of procedures for establishing when and where and in what circumstances a Scottish Executive Minister might speak. I would reiterate the point I made earlier, though, that speaking in the Council, taking the lead for discussion on behalf of the United Kingdom, is not really the most important thing. The most important thing is hammering out the policy position beforehand. Council of Minister meetings are not that flexible. They are prepared and essentially endorse decisions made beforehand and that is the important stage for the co-ordination of a Scottish Executive position in an area such as fisheries or whisky, which I think is also an important one, with the United Kingdom Government so that a common United Kingdom position can be created.

  151.  The two things are inter-linked. The Council of Ministers agreed in negotiations leading up to them but the two are definitely inter-linked. The problem is where the lead ministry is MAFF in, say, agriculture and fishing which is of crucial Scottish interest because in some ways MAFF interests are contradictory to the Scottish ones. In BSE, for example, there are three dairy animals to one beef in England, two beef to one dairy in Scotland, so the two interests are not necessarily the same. If there was a major interest affecting the Land in Lower Saxony, how would they be able to reflect that in the Council of Ministers or in the negotiations leading up to the Council? That is the real problem. If you have a major interest, in Scotland's case a major national interest, how could it be reflected in the Council of Ministers and the pre-negotiations?

  (Mr Leonardy)  There would be a draft European Directive or Regulation on the table of the Bundesrat in the case of BSE, for instance. That would go to the departmental committees of the Bundesrat and in this case also to the Agriculture Committee. It would finally be coordinated in the European Committee which meets at the end of the committee week. In the Agriculture Committee Lower Saxony would voice its interests and would maybe even table motions saying that the comment of the Bundesrat on this particular matter should be this and that, that the Federal Government should be urged not to negotiate on that line but on that line. Then, of course, you need to get a majority within the committee and with the other Länder and also in order to be successful you finally need to get a majority in the plenary that is the task which you always have to cope with on any piece of legislation, be it national, European or whatever. If the Bundesrat were then to follow that comment, it would be sent to the Federal Government and then the Federal Government will certainly have to take this into account. If it were to touch upon an exclusive power of a Land, which in this case it would not, the Federal Government would even be bound by a statement of the Bundesrat in that matter. Under the rule which I mentioned earlier, (Article 23 of the constitution where the Bundesrat has the final say in matters which touch upon its exclusive powers and also any areas over which the administrative competences of the Länder come into play, as they do, for instance, in the implementation of federal law) that is the way in which such a political intention would be channelled into the procedural process of the relevant institutions.

  152.  Do situations arise when central government is "by-passed" and the regions actually negotiate directly with Europe? Is there any example of this in Spain or in Germany?

  (Professor Heywood)  Not in Spain.

  (Dr Jeffery)  Not in Germany, if you use "negotiate" because that implies a power to trade interests. There are certainly regular discussions which are directed at trying to prepare the field for Länder interests to be met, but essentially decisions have to be made through the framework of the Member State so ultimately there must be some kind of co-ordination with the Federal Government.

  (Mr Leonardy)  What happens in Brussels with the missions or the offices of the Länder there is not so much that they negotiate with the Commission on pieces of European legislation but they lobby for regional funds and, of course, they will also be in a position to articulate their particular comments on any piece of European secondary legislation to the Commission but that would not be the comment of the Federal Government of Germany as a Member State.

  153.  In other words, they are in on the ground floor when policies are being made?

  (Dr Jeffery)  Yes.

  (Mr Leonardy)  Yes.

  154.  What evidence is there that devolution leads inevitably to demands for greater independence within Europe? Is there any evidence of that?

  (Professor Heywood)  On the basis of the Spanish experience there is no evidence that it leads in that direction—quite the reverse.

  (Mr Leonardy)  There is no Land in Germany which has ever declared that it wants to secede from the Federal Republic. It would even be constitutionally very doubtful whether that could be possible. There is not even one political party which would have that aim. Referring to the concept of the "Europe of the regions", I can only repeat what I said in an earlier part of the debate which is I would say that this concept is misunderstandable. It should be a partnership with the regions in Europe, but the aim should not be to dissolve the Member States in favour of the regions because you would get far too large a number of units being the basis of the European Union.

Chairman:   We will move on now to relations with local authorities, although I do believe that your written submissions covered most of our points.

  155.  To what extent has the existence of Länder and regional government affected local authorities? Is it desirable that the powers of local authorities should be protected in some way? Perhaps Belgium might be relevant?

  (Dr Jeffery)  I did mention Belgium in my submission as an example of a general problem in extreme form. The general problem is that if you create new devolved regional or national structures within the UK state there is going to be some recalibration of relationships with the tier of government below this new tier. Tensions may emerge, conflicts may emerge. I think we can see examples from other's experience of how this happens. I chose Belgium because I think it provides a very potent example of the problems which may emerge for the local government. Belgium used to be a Napoleonic centralized state; it is now a heavily decentralized state. I think what has happened is that Napoleonic centralism has been decentralized to the regional level and the regional level is less inclined than the former national authorities responsible for local government were to allow local government discretion to perform its roles, in particular in implementing policy, with the same freedom as before.I think there is also a tendency to squeeze the money. When you decentralise government there is normally a recalibration of the financial relationships and I think that has worked to the disadvantage of local government in Belgium. I am not sure that that prospect is in place in the Scottish case, though I do suspect that there may be potential problems of decentralising centralism in Scotland, decentralising a Westminster-style form of parliamentary and governmental politics to the Scottish context.

  156.  Do the local authorities have any scope for raising finance locally—Scottish local authorities have very little scope for local finance raising at all—which would accentuate the problem immensely?

  (Dr Jeffery)  I cannot comment authoritatively in the case of Belgium. In the case of Germany, the local authorities are actually constitutionally guaranteed certain sources of income. Nevertheless, how far that money can go can be affected by decisions made at the regional level, in particular by imposing new administrative responsibilities on the local community which costs money to do.

Chairman:   Can we move on yet again to the question of memberships and procedure, Eric Clarke.

  157.  Where constituencies have members that exist in the same Parliament and do their functions with constituency members, do their functions and interests tend to diverge? You have got people who have been elected for a constituency and you have got people who are elected off the list. Are there any problems there? It is a new innovation here.

  (Dr Jeffery)  I suspect it is not as much of a problem as we might think looking at it through a British frame of reference because the constituency tradition in Germany is by no means as well entrenched or as important as it is in the UK. The sense of having surgeries and going to see the local MP is not as well developed. The constituencies are much bigger. On the other side of the coin the list MPs are normally allocated to some kind of constituency role in constituencies which that party did not win. So everybody has some kind of constituency-based function but that constituency-based function is by no means as important as it is in the United Kingdom.

  158.  In Spain?

  (Professor Heywood)  In Spain there is no observable problem of the kind you are suggesting but Spain's experience of democracy is sufficiently limited that any form of democratic representation is likely to be seen as positive. There has certainly never been a suggestion of a strong constituency link in the way that the United Kingdom system has developed.

  159.  The next question is obviously do the sub-national governments or the Länders and others act as nurseries or retirement homes for national politicians or do they attract wholly different groups from the national parliaments?

  (Professor Heywood)  The answer to that is both. It is a retirement home for Manuel Fraga who is now President of Galicia, and it was a nursery for Jose Maria Aznar who is now Spanish Prime Minister, both of them were regional presidents.