House of Commons - Scottish Affairs

Select Committee on Scottish Affairs Second Report

THE BIG QUESTIONS

Stability

22. The devolution package is intended to be a settlement. The government hopes that it will satisfy the legitimate demands of the Scots (and other minority nations) and so preserve the unity of the United Kingdom. If it does not do this, if the UK breaks up, it will have failed. One of our first concerns, therefore, was with the stability of devolved systems generally and the likely stability of this one in particular. We wished to examine the extent and nature of the strains to which such systems are subject; what mechanisms can be set in place to absorb such strains; whether the UK system is particularly exposed to them and how well it is likely to be able to stand up under pressure.

23. Stable does not of course imply immovable, and more than one witness reminded us that it is possible to have 'a settlement in a dynamic situation'[14] or that 'it was 'possible to create a structure which was dynamic and which was heading towards a point of equilibrium'.[15] Certainly the package is intended to be flexible; the Minister spoke of 'pushing forward the frontiers of our own devolution package'.[16] A degree of flexibility is built into the Act itself; for instance Section 30 provides for modification of the schedule listing reserved matters by Order in Council.

24. Of the two systems we looked at, the German seems relatively static, though strains, particularly financial ones, are leading to pressure for some changes.[17] The system is capable of adapting to developments, as witnessed by the introduction of a provision for a representative of the Länder to take the German seat at the Council of Ministers.[18] We heard no suggestion of pressure for fundamental alteration in the system, or for a break-up of the federation. Witnesses ascribed this stability to Germany's long experience of federation (which according to one view dates back centuries and where the current arrangements date back 50 years), and to the principle of 'federal comity or loyalty'[19] which is widely accepted and of which the Constitutional court takes account in its judgements.[20] In Spain there is evidence of a constant game of 'catch-up' as the communities with less autonomy strive to emulate those with more and Catalonia, Galicia and the Basque Country then seek the restoration of their differentials. Nonetheless, as Professor Heywood explained the main Catalan Nationalist Party (of several) and the Basque Nationalist Party are nationalist but not either seeking separation or independence,[21] and the Constitution is designed to be able to accommodate a considerable amount of pressure for change.

25. The Minister was confident that the devolutionary arrangement for the UK would endure. 'My view is that the devolution settlement is very fundamental. It is a very solid package. The government believes that we have strength within the United Kingdom, strength within our own Scottish Parliament (when it is established) and of course strength now in Europe as it evolves'.[22]

26. Other witnesses were less sure, arguing that the tide had been missed. Mr Barnes, author of a paper entitled 'Federal Britain: no longer unthinkable' thought that 'the sense of Britishness' on which, he argued, the UK is founded, had been eroded to a dangerous degree; 'if we do not build on the remaining sense of Britishness then I think the United Kingdom might well come to an end'.[23] He feared that devolution had come too late, arguing 'if devolution had been conceded in the 1920s it would have been a much more modest step, and perhaps people like Sir Alec Douglas-Home were wise to think about conceding it in the seventies'.[24] Dr Nairn thought that it was probably already too late. His paper was entitled 'De Facto Independence'; in part it states 'All post-war nation-states have had to adapt themselves to certain common tidal movements...the Cold War then the post Cold War thaw, "globalisation", de-regulation, democratisation and (in Western Europe) the institutional development of the European Union. Some new states which have recreated or reformed themselves ...have set up formidable hydraulic works and try to control or influence such movements, like the new constitutions of Germany, Republican Italy, post-Franco Spain, the French Fifth Republic and Belgium. The most impressive of such works are the Spanish and German ones and naturally it tends to be they which are referred to in arguments over the belated and piecemeal changes now under way in the United Kingdom'.[25] He too felt that 'if devolution had happened in 1979 there might have been more time for the kind of processes which are being counted on to make the system work... In the new conditions... I fear there is almost no time'.[26]

27. Under the British Constitution with its lack of entrenched legislative provisions (let alone the 'eternity' provisions existing in Germany), it is not possible for one parliament to bind its successor. In theory, then, a future UK parliament could rescind the devolution legislation. In practice, of course, such an action is extremely hard to envisage, though its consequences are not. Conversely, however, greater power can only be granted to Scotland by the UK Parliament and here there is potential for conflict. To take the extreme example, constitutional matters are reserved but it is hard to see how the Scottish Parliament could be prevented from holding a referendum on independence should it be determined to do so. If the Scottish people expressed a desire for independence the stage would be set for a direct clash between what is the English doctrine of the sovereignty of Parliament and the Scottish doctrine of the sovereignty of the people.[27]

28. While none of our witnesses went so far as to argue that the day of the nation-state was over, we did hear evidence of a shift of emphasis at European level towards the sub-national units. Canon Wright drew our attention to the 'Europe of the Cultures movement which has strong backing from the governments of Flanders, Catalonia and places like that...which is seeking to change some Treaties of the European Union in the direction of moving away from sole recognition of the nation state towards what they call the recognition of the Cultural Regions of Europe, some of which are nation states, some of which are regions within the present nation states'.[28] In this climate, and with the globalisation of the economy, it is permissible to ask if it would matter, otherwise than sentimentally to some, if the UK were to break up.

29. The Government accept without question that the Union should be preserved; the devolution settlement is designed to achieve this. Other witnesses who addressed the point argued that it would help give greater strength not only for the state but for all the home nations. Mr Barnes suggested that Europe needed to co-operate in order to confront the problems of globalisation; that without the intervening layer of the nation-state or at least a strong federation, the 200-odd regions would be vulnerable to the centralising tendencies of a Europe driven by the decisions of the European Court of Justice and that the smaller players, of which Scotland would be one, would be at a disadvantage compared to the larger ones which in this context would include England.[29]

30. If it is agreed (as it was by all our witnesses) that it is to the advantage of Scotland as of the UK as a whole that the settlement should be a success, it is necessary to look at the factors which may put a strain on it.

Stress points

Big bang reform versus incremental change

31. Devolution to Scotland, Wales and Northern Ireland is only one part of the re-writing of the Constitution which is currently taking place. As far as we can see, this reform is being conceived piecemeal; if there is an overall blue-print showing how all the pieces will fit together, none of our witnesses were aware of it. As Mr Barnes put it 'what the Government has done is to set free two devolved assemblies without thinking through how the relationship between them is structured'.[30]

32. Two aspects of the way in which the constitutional reform is being implemented give us particular cause for concern. One is the belated addressing of the English dimension. The other is that, although the Secretary of State will continue to exist there is to be no central legislative representation of all the sub-state units as such.

33. In defence of the Government's timetable and approach, it might be argued that a pragmatic approach, and responding to demand rather than forcing the pace of change was in accord with the traditional practices of the UK. Indeed, Mr McLeish did so argue in defending the Government's approach to the English dimension, saying that 'this step by step process is very much in tune with the British Constitution'.[31] We hope this view will prove justified, that the Government will not be overtaken by events and that when the pace of reform slackens it will be found that all the separately-constructed pieces of the jig-saw puzzle will fit together. While we understand the reasons for haste in view of overwhelming pressure for change in Scotland, we hope in future to see evidence of a more coherent approach to the whole issue of UK constitutional change. We also refer the reader to paragraph 10.

Goodwill

34. To be stable, in the sense of being able to accommodate change without disintegrating, a system must above all command the goodwill of those affected by it. In this, the proposed new system will be little different from that which it replaces[32] which, as Dr Nairn reminded us, is already 'notoriously' more dependent on goodwill than other systems. The Minister's evidence made clear at every turn just how heavily reliant on goodwill the successful operation of the proposals are. Thus, goodwill will ensure issues are resolved before they reach the Judicial Committee of the Privy Council,[33] it is goodwill which will prevent Ministers of the Scottish Executive from being held to account at Westminster as well as at Holyrood;[34] goodwill will be needed to accommodate the distinction between constituency and list Members of the Scottish Parliament (MSPs);[35] and so on. Any elements of the system which tend to diminution of the necessary goodwill are therefore dangerous in the proposed new system as in the one it replaces. Expectations of the new system will also be very high.

35. Experience in Germany and Spain suggests that such elements might include perceived unfairness in terms of distribution of power or money, encroachment by one layer on the perceived authority of another. An unsatisfactory method of settling disputes or a fundamental difference of political opinion between the different layers might also put the settlement under strain.

Balance of power

36. We refer in para 15 above to the difficulty of ring-fencing competences. In theory the competences of both the German Länder and the Spanish Autonomous Regions are protected by the Constitution. In both cases, as in Scotland, certain matters are reserved to the central state and the rest are for the sub-state units. In practice, both in Germany and in Spain, the pattern seems to be of strong regional government, implementing the policies of the central state, but of weak regional parliaments whose legislative authority was constantly being eroded by the central state. It is important to know how such re-centralising tendencies come to be allowed to have effect and whether they will be encouraged by the new UK system.

37. According to Professor Heywood[36] 'while ordinary laws passed at central and regional level have equal standing, the central government sets 'basic legislation' or 'basic norms' which rank above regional law in such areas as education, health, law and order and the civil service....Morever, ambiguity exists over the scope of shared and concurrent functions and the extent to which the powers of an Autonomous Community can oscillate between state and region'.

38. Mr Leonardy wrote of the circumstance that the bulk of German legislation is enacted today at the federal level that 'This might seem paradoxical in the face of Article 30 of the Basic Law that "except as otherwise provided or permitted by this Basic Law, the exercise of government powers and the discharge of governmental functions shall be incumbent on the Länder"...The paradox between the reality and the legal situation in the field of legislation is further sharpened by Article 70 of the Basic Law which rules that "the Länder shall have the right to legislate in so far as this Basic Law does not confer legislative power on the federation" and thus defines the Länder [like the Scottish Parliament] as the location of residual legislative power. This erosion of the legislative power of the Länder was attributed by him to 'the impact of both the broadening of the criteria and the expansion of the categories of exclusive, concurrent and framework legislative powers of the federation' by other articles of the Basic Law.[37] Dr Jeffery concurred, citing also Article 72 which gives the federation power to legislate to maintain "equivalent living standards" throughout the federation.

39. In this context we were pleased to read Dr Jeffery's conclusion that 'the different configuration of the residual power in the UK-Scottish relationships means that the legislative autonomy of the Scottish Parliament will be far more extensive than that of the German Länder, and to hear Mr Barnes say that 'Scotland will have more power than any German land government; much more'[38] but we also recall the comment heard in Bavaria that as soon as the central state is mentioned in the constitution it automatically assumes supremacy.

40. In both Germany and Spain, part of the problem seems to be the existence of areas of shared or concurrent functions or the retention by the centre of the power to make framework legislation. Although 'Clause 27(7) of the Bill allows for the UK Parliament to make legislation for Scotland if it wishes',[39] the framers of the Scotland Act have been at pains to ensure a straightforward transfer of functions from the UK to the Scottish level, and the provision for concurrent exercise of functions is limited, which should reduce the temptation to poach.

41. In order to facilitate co-operation between the two administrations, documents called 'concordats' are being prepared. The Minister explained 'these are not legal documents. They are not documents which will be wholly prescriptive. They are designed to acknowledge that in the changing face of the constitution of the government of the United Kingdom, Scotland, along with other areas, will be involved in change. Let us have a working relationship which will be the basis for dialogue, and there is an aspiration on all parts that we should make these work. I am convinced that they will because if you consider, for example, the European Union issue, there would be little point in the UK voice in those debates not having a consensus on the issues we are talking about. I believe that not only from Holyrood but also from Westminster there will be an imperative to make the concordats work'.[40] These concordats will be published in draft but will only come into effect when they are signed by both the new executive of the Scottish Parliament and the Westminster Government after 6^th May 1999.[41]

42. A little more flesh was put on the bones of the concordat issue for us by Mr Godfrey Robson of The Scottish Office when we took evidence on inward investment on 6^th May. Inward investment is an area where rules are to be put in place to ensure that the regions of the UK do not seek to attract inward investment by out-bidding each other. Mr Robson explained 'when an agreement is reached it will be enshrined in a concordat which will in due course be published and which will be a legacy to the new Scottish administration. The intention is that we should develop a consultation mechanism to deal with major inward investment projects where those projects are contestable between regions of the United Kingdom'.[42] This concordat is to replace existing arrangements for co-ordination. We were assured that 'the question does not arise of the DTI having some kind of pre-emptive power over what the Scottish administration or the Welsh administration would do...It is about consultation; it is not about over-ruling'.[43] Not having seen these concordats we are not in a position to judge. We bear equally in mind the fear of Scottish Enterprise, also giving evidence in the context of our inquiry into inward and outward investment that a concordat might 'add more onerous conditions, more bureaucratic hurdles to get over' thus putting at risk some inward investment[44] and we certainly believe that the Parliaments should have a role in overseeing the operation of these agreements. We asked The Scottish Office for further evidence on the progress of the concordats, and it is published in the Minutes of Evidence to this Report.[45]

Finances

43. Our witnesses, formal and informal, all attached great importance to the financial element of the devolution package. In Bavaria we were told that getting this right was the key to any successful devolution. It was, we were told, important not only in terms of relations between federation and land but also between land and local authority. Similar remarks were heard in Catalonia. COSLA also stressed acceptance of the financial settlement by Scotland as one of the two preconditions on which the stability of the devolution settlement would depend (the other being acceptance of devolution by Westminster).[46]

44. While there appears to be some element of flexibility in the financial powers of the Scottish Parliament, in terms of existing taxes it is to be restricted to a variation of 3% in income tax giving a maximum total of approximately £450 million.[47] This can be seen in the context of total expenditure in 1998-99 by the Departments for which the Secretary of State is responsible of £14.6 billion.[48] There is to be no system of assigned revenues such as exists in Germany and, to an increasing extent, in Spain. The bulk of the finance is to continue to be voted en bloc by the UK Parliament on the proposal of the Treasury after something like the usual round of public expenditure negotiations (we say, something like, because the Secretary of State told us when he appeared before us to discuss his responsibilities that the negotiations would be between the Scottish Executive and the Treasury with the Secretary of State as a commentator).[49] As Mr Barnes put it 'the central Parliament has kept...essentially, control of the purse strings; now I cannot conceive of something that is more likely to cause trouble'.[50] Dr Nairn concurred.[51]

45. The possible anger of MSPs about not having control of the raising of money has its counterpart in the dissatisfaction of some UK MPs at being asked to vote money without being able to demand that it be accounted for to them.[52]

46. Another element that might lead to ill-feeling is the belief in some quarters of England that Scotland receives as unjustifiably large proportion of UK money. That we concur with Mr Barnes that this is a myth[53] does not make it any less dangerous. An attempt by or in the UK Parliament to reduce the amount of money going to Scotland would obviously be very bitterly resented in Scotland and might encourage, or be used to encourage, movement towards independence.

The English dimension

47. Mr Barnes[54] and Professor Bogdanor[55] drew our attention to what they believe to be the fallacy, promulgated in 1973 and never publicly exploded, that it is possible to devolve parts of the UK without affecting England. We agree with them that this idea is misconceived. The very fact that any provision for England lags behind that made for the other three countries is symptomatic of the way in which devolution is being brought about.

48. The United Kingdom consists of four nations. Some measure of devolution is being given to the three smaller units but no commensurate offer has been made to the largest— England—though London has been offered and accepted an elected assembly and a directly-elected mayor and it is government policy to offer regional assemblies in England if demand should be proved. Given that some English regions have more sense of identity than others, the resulting system might tend towards the more dynamic Spanish rather than to the more static German system.

49. When we suggested to Mr McLeish that the English had not been consulted, he reminded us that the proposals for devolution had been in the manifesto on which New Labour fought the 1997 General Election.[56] He also explained that English Ministers had been consulted on the devolution package.[57] When we asked him whether he was concerned that the proposed Council of the Isles would include separate representation from Scotland, Wales and Northern Ireland but not from England he replied 'England ...will still be part of the United Kingdom so therefore will have participation through that'.[58] In view of the often-heard criticism that the UK Parliament is regarded by the English as their Parliament it was a little surprising to hear these words from a Scottish Minister.

50. While at present there is little evidence of demand for an English Parliament, or even, in most areas, for regional assemblies, one or two of our witnesses thought that this might come, or even be engineered; if this were to happen, some of our witnesses warned us, it might possibly be hi-jacked by ugly forces[59] rather than the more positive civic nationalism[60] we and others believe has prevailed hitherto.

51. The lack of interest shown so far by the English, in the future structure of the UK was regarded by Dr Nairn as a barrier to the successful completion of the transformation of British identity which has already begun.[61]

52. One of the possible rallying-cries for a hypothetical English backlash is the much-canvassed West Lothian Question, arising from the post-devolution position that Scottish MPs will be able to vote in the UK Parliament on legislation which does not extend to Scotland whereas English MPs will not be able to influence Scottish legislation. Most of our witnesses regarded this as a non-problem. Professor Bogdanor pointed out 'that continental multi-level systems seem to operate perfectly happily with asymmetrical devolution'[62] and Canon Wright, while agreeing that the West Lothian question was an 'anomaly' thought that it 'is an anomaly but one you can put to one side'.[63] Mr Barnes on the other hand expected that discontent would indeed be expressed, not first among the English but among the Welsh, whose Assembly lacks primary legislative powers and for whom Scottish, as well as English, MPs will legislate. [64]

53. There appears to be no provision in the new constitutional dispensation for resolving the West Lothian Question if indeed it proves to be a live issue, and some would regard it as insoluble within the devolutionary terms proposed. An English Grand Committee along the lines of previous Grand Committees would see legislation returned to the House for final approval. The argument for a self-denying ordinance—or even a Standing Order—prohibiting MPs for Scottish constituencies from voting on purely English matters faces the objections that it might then prove impossible for a government to put its programme through and that it is not the custom of the House to have first and second-class Members (see para 10).

The European dimension

54. No-where is the reliance of the whole devolution package on compromise, goodwill and reasonableness so apparent as in respect of relations with the European Union.

55. The decisions of the European Union can be expected to become ever more important in the life of Scotland, as of the rest of the UK, and the White Paper 'Scotland's Parliament' stresses the importance of effective and early co-operation between UK and Scottish Ministers and officials in formulating UK policy in respect of European matters. Nonetheless it makes clear that it will be the views of the UK as a whole which will prevail, it being the member state. Paragraph 5.7 of the White Paper states that 'The Scottish Parliament will be able to scrutinise European legislative proposals to ensure that Scotland's interests are properly reflected. The UK Government will take into account the views of the Scottish Parliament and the UK Parliament may also wish to do so in its scrutiny processes.' Again, according to paragraph 5.6 'the Government also propose that Ministers and officials of the Scottish Executive should have a role to play in relevant Council meetings...' but 'the emphasis in negotiations has to be on working as a UK team; and the UK lead Minister will retain overall responsibility for the negotiations'. It is clear that any visible disagreement would weaken not only the UK but also Scotland in their relations with the European institutions.

56. The German Länder have won for themselves the right to nominate a collective representative to speak in the Council of Ministers on matters which are within land competence. No such provision is envisaged in respect of the devolved parts of the UK, there not being any matters that have been wholly devolved. Mr McLeish made it clear that it would not be possible for a Scottish Minister alone to represent the UK.[65]

57. The statement in the White Paper that 'in appropriate cases, Scottish Executive Ministers could speak for the UK in Councils' is not reflected in the Scotland Act although Ministers assured the House that the possibility still existed.[66] It would appear to be the case that any Scottish Minister would only take this role in cases where it had been possible to reach an agreed position so that, in the very cases where Scotland's interest was most different from that of the rest of the UK it is very unlikely that any such Minister would be prepared to do so, particularly as such action would then have to be defended in the Scottish Parliament.

58. A devolved Scotland may be expected to increase its lobbying and intelligence effort in Brussels, and it is generally assumed that the Scottish Parliament will set up an office in Brussels to complement the work of UKRep and of Scotland Europa—indeed we learned from Mr McLeish that an advance party had already been sent out to reconnoitre and make recommendations. We welcome this development.

Dispute resolution

59. We were frequently told[67] that there would be constant consultation and discussion between Scottish and UK ministers and officials, but there is no provision for an open forum at parliamentary level for the public discussion of matters of common concern. Even the announcement by Baroness Ramsay on 28^th July of joint Ministerial arrangements[68] (see para 66) does not go very far to remedy this deficiency.

60. There is considerable and legitimate potential scope for disagreement between state and sub-state (and even between sub-states) even where both administrations are of the same political complexion, but any disagreements will be exacerbated when they are not. And inevitably, even if the political control in the UK and in Scotland start off the same there will come a time when they differ; the staggering of elections, the proportional representation systems for electing the devolved assemblies which will favour the creation of coalition administrations and the possibility of people voting differently in regional and national elections all tend towards such an outcome. This makes the possibility of reaching common ground for a delegation to Brussels, agreement on a disputed point of vires or even on a matter of honest political disagreement, more difficult to achieve.

Disputes over vires

61. The Scotland Act includes procedures designed to ensure that disputes about vires are sorted out early in the legislative process. The sentiment is best expressed by the White Paper which makes clear that in cases of uncertainty over the Scottish Parliament's authority to legislate, legal advice will be taken from "the Scottish Executive Law Officers and as necessary more widely".[69] At the outset of the legislative process all Bills will require a written statement by the Ministers responsible for them stating that they fall within the Parliament's area of competence; in addition, there will be a similar requirement of the Presiding Officer who will also have to ensure that during the passage of the legislation the Bill remains within the Parliament's remit. Finally at the end of the legislative process Bills will face a four week delay before Royal Assent to enable their legitimacy to be scrutinised by the UK Government.

62. The Bill may then be referred to the Judicial Committee of the Privy Council by either the Scottish Law Officers or the Attorney General. The Minister told us that the vast bulk of disputes would be dealt with long before the necessity of such a referral; he explained that the Judicial Committee would consider a "very small band of technical, legal issues, which have not been resolved further down the line".[70] He also stated that the Judicial Committee had been considered as "a model here that could be worked up".[71]

63. The Judicial Committee's current work includes acting as a final Court of Appeal for certain Commonwealth countries, and for constitutional appeals originating from the smaller Commonwealth territories which have achieved independence since 1945 and have been granted a written constitution.[72] The Committee established to consider matters of vires in relation to Scottish legislation will consist of five judges at least two of whom will be Scottish. The Minister was not concerned about the in built non-Scottish majority on the Committee. He told us "It is not about Scotland/England. It is not about Westminster/Holyrood. It is about the technical issues surrounding whether it is competent for the Scottish Parliament to do something relative to the Scotland Bill".[73]

64. The likely effectiveness of the Judicial Committee was doubted by some witnesses. Dr Jeffery told us that because of the doctrine of the sovereignty of 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."[74] In addition, he felt that its decisions may not have the same authority as the highly respected German Constitutional Court. Dr Nairn outlined a scenario, as an example of a potential dispute between Westminster and Edinburgh, where a threat to the independence of the media in Scotland might not be considered a significant problem at Westminster but, nonetheless, prove irresistible to a Scottish Parliament despite being outside its competence; a conflict would become inevitable. He was not confident that the Judicial Committee would be "a serious instrument for tackling or adjudicating such problems".[75] Other areas which we see potentially leading to vires disputes are tourism and inward investment because although the matters are in principle devolved certain powers remain with the UK Government.[76]

65. We believe that it is possible for the Judicial Committee to resolve successfully small subtle legal issues related to the Parliament's competences. The fact that it is a little known institution should not mean that its decisions are not respected; they will, after all, have the weight of law behind them. The more difficult task will arise if the Scottish Parliament decides that it is not going to be bound by terms of the Scotland Act; at that stage the settlement now being implemented will for all intents and purposes be at an end.

Political disputes

66. We noted in paragraph 59 the Government's announcement that there would be "standing arrangements for the devolved administrations to be involved by the UK Government at ministerial level when they consider reserved matters which impinge on devolved responsibilities"; this will include a joint ministerial committee made up of UK ministers and ministers from the devolved areas. It may be that these standing arrangements could be used to resolve demarcation disputes at an early stage; we look forward to further announcements detailing these arrangements.

67. It is the norm in devolved or federal systems to have a central forum at which the sub-states are directly represented; the US has the Senate and Germany the Bundesrat, while the Spanish Senate may be reconstructed to represent the regions. A completely federal system could not, of course, function without such a body; in Germany, some competencies are so wholly devolved that a representative of the Länder, chosen by and reporting to the Bundesrat, takes the German seat at the European Council of Ministers. Even in the absence of the need to make collective representation to outside organisations, a chamber of the regions is usually found desirable for the protection and reconciliation of regional interests. No such chamber is currently proposed by the Government for the UK. The argument usually adduced is that the disproportionate weight of England would make it impossible; Mr Barnes, on the other hand felt that a chamber in which England held half the seats while the other nations divided the rest of the seats between them might not be unacceptable.[77]

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18 Ev.p.34. Back

19 On 'federal comity' Mr Leonardy said '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'. Back

20 Ev.p.37. Back

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25 Ev.p.77. Back