SECOND REPORT
The Scottish Affairs Committee has agreed to the
following Report:—
THE OPERATION OF MULTI-LAYER DEMOCRACY
INTRODUCTION
Object of the inquiry
1. Under the Scotland Act[1]a
fourth layer of government and representation is to be added to
the three—UK, local and European—which already affect
the people of Scotland. The devolution 'settlement' for Scotland
(we use inverted commas for reasons which will become apparent
later), together with the arrangements made for Wales and Northern
Ireland, represents a fundamental change in the way in which the
UK is governed. It has implications not only for Scotland but
for the UK as a whole, for the other constituent nations and for
the procedures of this House. It seemed to us that it would be
a dereliction of our duty as Members of this House elected to
represent Scottish constituencies and as Members of the Select
Committee set up to monitor the activities of The Scottish Office
if we were not to look at some of these implications.
2. The title 'The Operation of Multi-layer Democracy'
was chosen to remind ourselves and others (should this be necessary)
that our business is with the wider implications of devolution.
It is not for anyone at Westminster to tell the Scottish Parliament
how to conduct its affairs; that would be presumptuous and would
negate the intention underlying the changes. If we infringe this
principle once or twice it is to offer a friendly word of advice
which we hope will be received in the spirit in which it is intended.
Scope of the inquiry
3. We do not pretend that our inquiry has been exhaustive;
the subject is being extensively considered by a considerable
number of individual experts and think-tanks with different qualifications
from ours. We have approached the subject from the perspective
of Members of this House and this Committee and the particular
questions which struck us most forcibly reflect that. Others have
brought, and will bring, their own perspectives to bear.
4. By multi-layer democracy we mean a system of government
and democratic representation in which there is a layer between
the central government (that is the state recognised at, for instance,
European Union level) and the purely local government level. Over
the last few decades more countries have been moving to such systems;
the UK has, until the last few months, remained unusually centralised.
5. Some of the questions which interested us apply
to all multi-layer democracies, others are peculiar to specific
systems.
6. The devolution arrangements for Wales and Northern
Ireland are not, in detail, a matter for us, although the differences
between the different packages will obviously affect the impact
of the changes as a whole on the United Kingdom. No doubt all
will give rise to some of the same questions as well as to individual
ones of their own.
7. Of its nature this report lays a certain amount
of stress on potential flaws in the system proposed and the problems
that may arise. We hope we will not as a result be accused of
fomenting discord. We believe (and none of our witnesses dissented
from this view) that it is in the interests of all people of goodwill
to work towards making the new configuration a success. On the
other hand we heard evidence which suggested that there might
be difficulties inherent in the arrangements proposed and we believe
that there is little to be gained by hoping that potential difficulties
will go away if they are ignored.
8. Paragraphs 22 to 67 discuss what may be considered
major issues, that is considerations which may affect the devolution
package as a whole and which might, if the very worst came to
the very worst, cause the settlement to break down. Paragraphs
69 to 78 relate to matters which are less likely to cause fundamental
difficulties but which nonetheless have implications for the smooth
running of the system. Paragraphs 79 to 86 discuss the implications
for this House. Lastly, paragraphs 87 to 91 cover a few specific
and detailed matters which have been brought to our attention.
9. Since we embarked on this inquiry evidence has
been accumulating of increased interest in the topic, particularly
as respects the impact on England. This has been reflected in
a number of media items. We welcome this as indicating that our
choice of questions to address was in tune with events.
10. There is a tendency in any discussion of UK constitutional
matters for people to claim that certain things do not accord
with 'our' way of doing things (as, for instance in the argument
that an 'in and out' solution to the West Lothian question is
not possible because it is not the practice to have two classes
of MP or Mr McLeish's comment that a step by step approach was
in tune with the British Constitution).[2]
There has not been more than one parliament in Great Britain either
recently, but there is going to be one now, so that argument needs
to be treated with a degree of scepticism whenever it is used.
Terminology
11. Throughout this Report, except when we specify
a particular unit, we use the term 'state' to mean the central
government (the UK, Germany, Spain etc), and 'sub-state' to mean
the devolved unit (Scotland, Land, autonomous community). For
the sake of simplicity we use the term 'devolved' to cover all
decentralised systems whether devolved or federal.
Conduct of the inquiry
12. In the course of our inquiry we took oral evidence
from Canon Kenyon Wright and Professor Alice Brown, who gave us
useful insights into the thinking which underlay the devolution
settlement for Scotland; from Dr Charles Jeffery, Professor Paul
Heywood and Mr Uwe Leonardy (for making whose attendance possible
special thanks are due to the Friedrich Ebert Stiftung of Bonn
and London), who told us much about the systems operating in Germany
and Spain; from Mr Douglas Sinclair of the Convention of Scottish
Local Authorities (COSLA), from whom we learned about how Scottish
local government related to Europe and might be expected to relate
to the new Scottish system; from Mr John Barnes and Dr Tom Nairn,
who warned us, with a wealth of near-apocalyptic metaphor that
the Union might already be doomed through the inaction of the
last 20 years, and from Mr Henry McLeish, the Minister in charge
of devolution at The Scottish Office who assured us that all would
be well since everyone wished the settlement to succeed and would
therefore behave reasonably. Officials of the Constitution Group
in The Scottish Office appeared with the Minister. We received
written evidence from: MacNews, Professor Vernon Bogdanor, Scottish
Council Foundation, The Hansard Society for Parliamentary Government
and the Public and Commercial Services Union (PCS).
13. In March we visited Bavaria and Catalonia for
two days each to see how two very different systems of multi-layer
democracy operate in practice, and during the course of a one-day
visit to Brussels in February we took advantage of the opportunity
of meeting the representatives there of Bavaria and Catalonia;
we are grateful to all those who helped to arrange our programme
and who made time to meet us. A list of our meetings is appended.
Experience abroad
14. There are a good many patterns according to which
sub-national units can be given power over their own affairs.
When we visited Bavaria, we saw a fully-federal system operating,
in which power is divided, with certain matters being exclusively
the province of regional unit (or land). In Spain, by contrast,
we found a system of 'devolution all round' where power is shared
between the central state and the seventeen autonomous communities,
each of which has its own specific package of competencies. In
Germany each unit has identical competences, but each of the autonomous
communities of Spain has its specific package of powers and it
is built into the system that these packages vary between regions
but also within the same region over time.
15. The system proposed for the UK is unique, and
there is therefore a limit to the lessons that can be learned
from the experience of other devolved systems. Dr Nairn was particularly
emphatic on this point, suggesting that an additional factor was
'the sheer oddity and anachronism of the United Kingdom state
which actually makes it quite hard to set convincingly alongside
anything else in present-day Europe, at other than a superficial
level'.[3]
One very fundamental difference is, of course, the absence of
a written constitution for the whole UK. This makes it impossible
to entrench legislative provisions. Nonetheless we found our visits
helpful, particularly in terms of showing where the areas of friction
might arise and, more specifically, in showing us how difficult
it is in practice to ring-fence competences (see paras 36 to 42).
History
16. The Union of the Crowns of England and Scotland
in 1603 was followed a century later by the Union of the Parliaments
in a Parliament of Great Britain in 1707. Thereafter, until 1745
and after 1885 there was a Secretary (or, before 1745 and after
1926, Secretary of State) for Scotland. As this Minister's functions
gradually increased, the functions of The Scottish Office in London
were transferred to Edinburgh. During the 1970s, the then Labour
Government brought forward proposals to establish a Scottish Assembly.
The resulting Scotland Act received Royal Assent on 31st
July 1978, but an amendment made to it required that more than
40% of the electorate vote in favour of its provisions in a referendum,
failing which it would be repealed. The referendum was held, there
was a majority in favour, but it failed to meet the 40% threshold
and the Act was duly repealed. During the 1980s continued pressure
for devolution led to the publication of the Claim of Right for
Scotland. As Canon Wright reminded the Committee 'the central
affirmation [of the Claim], recognising "the sovereign right
of the Scottish people to determine the form of government best
suited to their needs", was an explicit recognition of the
historic Scottish constitutional tradition that power must be
limited, dispersed, and derives from the people'.[4]
The Scottish Constitutional Convention, published the final report
'Scotland's Parliament, Scotland's Right' in 1995, setting
out proposals for a Scottish Parliament. The current Government
committed itself to devolution in its election manifesto. A referendum
was held on 11th September 1997; 74.3% voted in favour
of the Parliament and 63.5% voted in favour of that Parliament's
having tax-varying powers. The Scotland Act, devolving a wider
range of powers than envisaged in 1978 and setting up the Scottish
Parliament and Executive has now passed through all its parliamentary
stages. Elections to the Parliament will be held on 6th
May 1999.
1 The Bill had not received Royal Assent at the time
of reporting, but had completed all its parliamentary stages. Back
2 Q367. Back
3 Ev.p.77. Back
4 Ev.p.2. Back
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