COMMISSION ON THE POWERS AND ELECTORAL ARRANGEMENTS OF THE NATIONAL ASSEMBLY FOR WALES

MINUTES OF PROCEEDINGS of the EVIDENCE OF:

PROFESSOR ALAN PAGE

held at

The Caledonian Hilton, Edinburgh on Wednesday, 12th February 2003

THE CHAIRMAN: Mr Page, thank you for giving up your time to come and see us. I wonder whether you would be kind enough to introduce yourself for the sake of the transcript?

PROFESSOR PAGE: Yes certainly, I am Professor Alan Page, I am Professor of Public Law at the University of Dundee. I have been Professor there since 1985, before that I was actually in Cardiff for some five years between 1975 and 1980 so I have some familiarity with the Principality.

PROFESSOR PAGE: None at all.

THE CHAIRMAN: When you are talking about it being amended there was no policy change?

PROFESSOR PAGE: Well they will see the Westminster legislation in draft.

PROFESSOR PAGE: The Scottish Parliament.

THE CHAIRMAN: In draft?

PROFESSOR PAGE: They will see the Bill as published after First Reading say.

PROFESSOR PAGE: Well, not necessarily to increase but I think they are a feature and will be a continuing feature of the development of the Scottish Statute Book, some of which is going to be made at Westminster.

PROFESSOR PAGE: This is the argument that if the demand for Scottish legislation were to diminish this would allow more time for this to be done in Edinburgh rather than London. That was certainly an assumption at the start, that there was this sort of un-met need for Scottish legislation and it would be pretty quickly dealt with, addressed, but I don’t see any signs of that yet. I would be surprised were that to happen. The problem is not simply one of time, it is one of policy making capacity. You are talking still in large measure about a UK statute book, a large part of the impetus for reform of which comes from UK Departments and so the Scottish Executive is continually faced with ‘this is what is happening’ or ‘this is what we are proposing, how do you respond?’

SIR MICHAEL WHEELER BOOTH: In a way the problem is that the Scottish Parliament seems to be considering its Bills much more extensively and in a much more probing way than Parliament at Westminster does and, therefore, you have this process, the three stages in the Committee process, hearing evidence, going through the Bill and amending it which is very rigorous by comparison with Westminster. What you are saying is that when it comes to subjects of Sewel motions none of that exists - but is it not the truth that the Scottish Parliament is doing infinitely more for Scottish policy making and serving its electorate than existed before the passing of the Scotland Act and that they have a finite amount of time and energy and it may be that they should be doing this but perhaps they are rowing in the right direction?

PROFESSOR PAGE: Yes, I wouldn’t want to dissent for a moment from the proposition that more is being done than was done before devolution, so my argument is rather that this is an important part of the make-up of the devolved Scottish Statute Book and ought to be recognised and treated as such.

SIR MICHAEL WHEELER BOOTH: Can I ask you another question about a void or niggle about the Scotland Act. The Government of Wales Act has provision for the Welsh and the National Assembly to consider and, subject to appallingly complicated procedures, to amend statutory instruments which may be primary legislation passed at Westminster. What are the procedures in the Scottish Parliament for consideration of supporting legislation and do they work and do they lead to changes?

SIR MICHAEL WHEELER BOOTH: But it doesn’t look at the merits of the instrument at all?

PROFESSOR PAGE: And then a distinctive feature, another distinctive feature of the Scottish Parliament is that the Subject Committees do look at instruments.

SIR MICHAEL WHEELER BOOTH: At their merits?

PROFESSOR PAGE: Yes, which is different from Westminster where as you know...

THE CHAIRMAN: Absolutely, where the scrutiny is done, as it is, on merits and do they do this often, does it work?

PROFESSOR PAGE: I think it would be fair to say that they have been pretty sedulous about this. They have taken it seriously and have subjected subordinate law making in Scotland to a much higher degree of scrutiny than was previously the case. I think there is little question about that, so the Executive finds itself under much more pressure in relation to that form of law making than was traditionally the case.

SIR MICHAEL WHEELER BOOTH: Do you get the impression that the Members really do work quite hard at their various scrutiny and legislation workload?

PROFESSOR PAGE: I think that would be fair comment, about members and those who support them. And I would add those that support them in the sense of the Parliament’s own staff who put a tremendous amount into breathing life into these procedures and making sure that they achieve what is expected of them. I am sorry if I was a bit hesitant in relation to subordinate legislation but I think my memory has now recalled the details.

MR THOMAS: My last supplementary, so to speak, do they have skilled lawyers to help them in this scrutiny process?

PROFESSOR PAGE: Yes, the Parliament under the Presiding Officer has its own legal staff, some of whom, as you would expect, do a vast amount of the work in relation to things like the scrutiny of secondary legislation, particularly where it has a European dimension.

MS SUGAR: Can I ask you a question about how you find out what law applies in Scotland if some of it is being passed in Westminster as well. The big issue in Wales is how do you find out what actually applies in Wales when it is being passed in Westminster and being passed in various forms. Sometimes there are Welsh Clauses and sometimes there are not, and there is often complaint that there is not apparently one authentic clause, what applies, etc. How does that work in Scotland, how would somebody find out what legislation had been subject to the Sewel device and when it comes forward - is it published in some way, how would I find out?

The answer may be found in United Kingdom Statute Book, it may be found in the Scottish Statute Book, it may be found in the European Statute Book. As to where you would actually go, HMSO, has a web-site on which you will find not only all the Westminster legislation but also a separate part of the site devoted to Scottish legislation, that is certainly where I would turn if I wanted to know what the Scottish Parliament had done by way of legislation. Similarly, in relation to Scottish secondary legislation, SSIs, these are the obvious sources. I am conscious there is a problem in Wales, I don’t have a very good feel for the exact nature of it, but I know there has been an initiative at Cardiff Law School, Wales Legislation Online or something, which attempts to address this particular difficulty. I am not aware of an equivalent difficulty in Scotland. I am not saying it is necessarily easy but...

MS SUGAR: So when a piece of legislation has gone through Westminster which because of the use of Sewel is going to apply in Scotland, where is that published, how do you know that it has been enacted and that it does apply?

PROFESSOR PAGE: Well, it is published as an Act of the Westminster Parliament and the territorial extent provision of the Act will tell you whether or not this applies to the whole of the United UK Statutes, Acts of Parliament, do include a territorial extent provision which tells you specifically: Parts 1 - 4 apply throughout the United Kingdom, Part 5 applies...

MS SUGAR: Is it actually reported in the Parliament here, that it has now been completed, it is now in effect?

PROFESSOR PAGE: Not that I am aware of. Going back to our earlier discussion, you can see that too as a part of the failure to follow up what happens after consent is given.

MR ROWLANDS: I find this point quite strange. With regard to Sewel Motions, we understand from witnesses earlier today that there are quite a few clauses in a Bill which by general consent has been agreed as carried through Westminster but has rubbed up against the wish and will of the Scottish Parliament or Scottish people – can you give me an illustration – we have been running for nearly four years with this system and here is one cause celebre where this particular clause has sneaked through somehow by a conspiracy between the Scottish Parliament and Westminster, etc. Can you give us one at all of where the system has let anybody down?

PROFESSOR PAGE: No I can’t and I wouldn’t wish to...

MR ROWLANDS: Is it a theoretical view that it could happen in the future?

PROFESSOR PAGE: That's right.

MR ROWLANDS: Although it requires approval before you start at the early stages the clauses in the Bill are presumably identified in the Sewel motion, it says this Bill and gives a title?

PROFESSOR PAGE: Well, it will indicate...

MR ROWLANDS: Will it indicate the Bill that they talk about?

PROFESSOR PAGE: They talk about the provisions relating to X being dealt with by Westminster.

MR ROWLANDS: So that’s right at the beginning so if anybody says we want to take up, they can look, the MSP can say I think this particular couple of clauses do affect my constituents in a way which makes me believe you should look at it so at that stage you can have a bite at it, is that right? What is wrong with the system then if there is not one bit of contentious legislation gone through. I am just trying to seek what the point you are making is?

PROFESSOR PAGE: I think you are describing, if I may say, a perfect world in which yes, MSPs do sit down at their leisure and look through and properly consider and say, yes, I am quite happy this should be done. The reality I suspect is very very different. MSPs turn up in the afternoon are faced with as this motion which may or may not have been thought about, these questions may or may not have been gone into before, and are then asked to consent and that is done on the basis of a majority which leaves potentially...

PROFESSOR PAGE: Yes, what they are presented with is… let’s say the Bill is published, the proposition then is that they should consent to those clauses, those published clauses should apply to Scotland.

THE CHAIRMAN: So that has been drafted elsewhere?

PROFESSOR PAGE: Yes, the Parliamentary clock is now running, the Bill is embarked on its Parliamentary stages at Westminster, so this is not something which takes place beforehand when you are still putting the Bill together, it happens once the Bill is published and it has begun its Parliamentary passage.

MR JONES: Is it the case that all the business managers who meet in the forum would have been party to the decision or there would have been a cross Party input at this stage - I think we were told this morning that only non-controversial and only non-devolved issues would normally be taken through Sewel because obviously it would come back to haunt some executive at some stage?

PROFESSOR PAGE: Reading the Parliamentary record, that’s right, so what you get are motions which are debated at the instance of the nationalists and this is where you get these extraordinarily bad tempered exchanges I was talking about earlier on, they force it into the Parliament and they will stand up and say, this is a terrible thing and the others will say, you are wasting time by making petty points, etc, etc and my argument is we have not at all moved beyond that and...

SIR MICHAEL WHEELER BOOTH: Turning from Sewel motions and the problem you have identified to something which is very much within our terms of reference, the question of primary legislative powers for the Welsh Assembly. To what extent, if at all, do you think the presence of a separate legal system in Scotland is a pre-condition of the devolution of primary powers here?

PROFESSOR PAGE: It has always been considered an anomaly that Scotland, under the Acts of Union, retained its own legal system but did not have its own mechanism for meeting its legislative needs and that I suppose was part of the long standing case for devolution, they helped to make the case for devolution. However, I don’t think it can be described as a pre-condition. I suppose a pre-condition is you want the opportunity to do things differently, that’s the pre-condition, so it was an anomaly which certainly contributed to the case but I not have described it as a pre-condition in itself.

SIR MICHAEL WHEELER BOOTH: It was an anomaly which existed for nearly three centuries, people managed and I would have thought that certain actions of the then Government about the Poll Tax and actions like that had more to do with it than the separate legal system?

PROFESSOR PAGE: Yes, I think the legal system coped, the need who partly addressed by the Judiciary are much more active in judicial law making, Scotland doesn’t have anything like a statutory definition of offences which characterises the rest of the United Kingdom, and partly by Westminster legislation, either separate Scottish legislation or Scottish provisions contained within UK Acts so, yes, the need was met, the argument is how well was it met but what the Scottish Parliament has done since, hasn’t, well some of it, land reform has obviously touched on core issues of Scots law but a lot of it has nothing to do with the legal system in the traditional narrowly defined sense.

SIR MICHAEL WHEELER BOOTH: Speaking very generally, as a lawyer, would you see a rational connection between devolution and primary legislative powers?

PROFESSOR PAGE: I think so, if only because of the sheer difficulty of understanding the Welsh settlement, if I can be as specific as that.

MR ROWLANDS: Do you see the same equivalent for tax raising powers, that you don’t have a devolved assembly/Parliament without having the power to raise taxes or maintain taxes?

PROFESSOR PAGE: Yes. The Scottish Parliament has these limited tax raising powers as you know in which it said it wouldn’t use the last Parliament. I don’t know if it has said the same for the next Parliament but there has been no suggestion that they be used. The question is whether that goes far enough or whether you ought to go further and devolve fiscal responsibility along with legislative responsibility as well.

MR ROWLANDS: VAT rates?

PROFESSOR PAGE: Not necessarily, but you should have responsibility for raising the funds to finance your ambitions.

PROFESSOR PAGE: Yes, you would have to address the issue of where the money was going to come from. This is not my field but as I understand it, what is happens under the existing system, stet they do have to find money from their budget.

SIR MICHAEL WHEELER BOOTH: But looking at it academically, this strikes you as surprising?

PROFESSOR PAGE: I am aware of the argument that says you should have this responsibility and I can certainly see it.

THE CHAIRMAN: You have identified a difficulty in the Parliament in respect of proper scrutiny and consideration of Sewel motions. Is there any other instance you have got where it looks as if the Parliament is not doing its scrutiny job properly and should be doing it better?

PROFESSOR PAGE: Not that I can talk about from direct experience but I was rather surprised by the suggestion, and I did not demur when it was made in questions earlier, about how well the Parliament had attended to its responsibilities. I wouldn’t want to dissent from that generally positive view but there is a view that the scrutiny in relation to legislation does not work that well and the Presiding Officer, I don’t know if you intend to see him tomorrow, made a speech just the other week in which he was, well he said he wasn’t talking about the possibility of a second chamber which he had been reported as talking about towards the end of December conversing the desirability of some form, in the absence of a second chamber, some form of revising mechanism where you can pick up and address some of the obvious shortcomings in the Parliament’s legislative output which in turn implies there are such shortcomings...

MR THOMAS: Can you give me an illustration?

PROFESSOR PAGE: Well to take a controversial one, the anti hunting, protection of wild mammals legislation, there was a quite marked disparity between the way in which the legislation was treated in Committee, which is where the detailed consideration is supposed to take place, and what then happened at the third stage and which proceeded more or less without regard to the previous consideration; people just voted in accordance with their instincts, their preference on the issue.

THE CHAIRMAN: What happened in Committee?

PROFESSOR PAGE: I think, again I am relying on memory, I think the Bill had been quite heavily amended in an attempt to improve it and many of these amendments, whether they were improving amendments or not it’s not for me to say, but many of these amendments were subsequently overturned at the third stage.

MS McALLISTER: There is a suggestion that the Committees role is too broad and too multifarious in that they cover the whole issue of legislation and scrutiny. Is that too much to expect from the Committee structure or is it simply the volume of legislation that has happened in this particular term of Parliament?

PROFESSOR PAGE: The Committees are certainly having to work much harder than I think was anticipated and part of that is the legislative load, there is no question about that, and that must in turn mean that other functions suffer, if you are spending all your time on legislation and not doing other things that may increase...

MR PRICE: The example you quoted seemed to prove the reference to a shortcoming of scrutiny in the Committee in saying the Committee did a good job in its scrutiny but when it came to plenary, that was overthrown. Is this a common experience, and coming back to the shortcomings in Committee scrutiny, are there shortcomings of Committee legislative scrutiny or is it that they are spending too much time on legislative scrutiny?

PROFESSOR PAGE: Yes, if I take the last of these first. It is that too much of their time is taken up with legislation to the detriment of other things they are expected to do, in particular scrutiny of the Executive. Now as regards the particular example of the protection of wild mammals legislation I wouldn’t want to generalise, I think that was an exceptional case, it happened to be a case in which the Committee took the task of scrutiny extremely seriously but were, if you like, disregarded at the third stage, but that’s by no means representative or true of the legislative process generally.

SIR MICHAEL WHEELER BOOTH: Is it your view that section 36(1) of the Scotland Act allows more than three stages or is it the effect of that section to only allow the Parliament to have three stages?

PROFESSOR PAGE: I would need to - I haven’t actually got a copy of the Scotland Act in front of me. My recollection was it adumbrated the procedure and left the details to be filled in. ‘You have to think these things out if you want to have more than that.’

SIR MICHAEL WHEELER BOOTH: Going back to your point about Sir David Steel’s idea of another stage, whether that would be one possibility?

PROFESSOR PAGE: Yes, it just says Standing Orders shall include provision for these things but it doesn’t say that is all they can include provision for so I think there is a freedom for the Parliament to adopt or adjust its procedures as it feels appropriate in the light of experience; that wouldn’t be precluded by the legislation.

THE CHAIRMAN: But by and large do you think the Parliament is producing good law - is it clear, is it understandable, is it something people can appreciate?

PROFESSOR PAGE: Yes I think that’s correct. Notorious examples like the hunting legislation apart, which some people say is unworkable and we will no doubt find out in the fullness of time but that was a highly controversial piece of legislation, they accepted, I think, the generality of it is Scottish legislation meets the standards you would expect.

THE CHAIRMAN: There is judicial review in Scotland?

PROFESSOR PAGE: Indeed.

SIR MICHAEL WHEELER BOOTH: But it hasn’t been done yet?

PROFESSOR PAGE: There have been two challenges to Acts of the Scottish Parliament.

THE CHAIRMAN: Tell us what they were?

PROFESSOR PAGE: The very first one was the Mental Health, I can’t recall the exact title but it was emergency legislation. It was the very first Act passed by the Scottish Parliament, the very first section of the very first Act which was challenged. What it did was provide for the detention of convicted criminals who were already in The State Mental Hospital on grounds of public safety whereas previously they could only be detained on grounds they were in need of treatment. The trigger for the legislation was a case which suggested these people would have to be released. The Scottish Parliament passed emergency legislation and that legislation was challenged and the Judicial Committee of the Privy Council upheld it. The second challenge was to the hunting legislation, again on Convention rights of grounds. That failed in the Outer House of the Court of Session. There is an appeal and I imagine given the strength of feeling about the issue that appeal will be pursued all the way to the judicial Committee of the Privy Council.

PROFESSOR PAGE: Yes it did.

SIR MICHAEL WHEELER BOOTH: And how seriously and how effectively do you think the Parliament and the Executive are taking the whole problem of human rights when drafting legislation?

PROFESSOR PAGE: Massively I would say.

SIR MICHAEL WHEELER BOOTH: Massively?

PROFESSOR PAGE: Massively seriously, yes, because the failure to do so in the case of Acts of the Scottish Parliament has the consequence that the legislation is ultra vires, it’s invalid, it’s of no effect, in contrast to an Act of the Westminster Parliament where when you have a declaration of incompatibility you can sit down and think what you may do, but the consequences of the Scottish Parliament getting that wrong are really quite drastic, so I think there is no question it is taken very, very seriously and not just by the Scottish Parliament and the Scottish Executive but also by Scotland Office and the United Kingdom Government. One of the things that the Constitution Committee confessed to having a great deal of difficulty in understanding is why the Scotland Office needed so many lawyers. One reason is because they spend quite a lot of time scrutinising what the Scottish Parliament does or is proposing to do by way of legislation so you have scrutiny by the United Kingdom Government, by the Executive itself, and by the Parliament and the Presiding Officer, so there are at least three levels of scrutiny.

SIR MICHAEL WHEELER BOOTH: Can you tell us a little bit about the standards of conduct - one witness said to us that it was much stricter here than at Westminster. The implication I think of what was he said was there was no mucking about, you would have to go through the procedures. Is that your impression, the Nolan Principle was, so to speak, being applied within the Scotland effectively?

PROFESSOR PAGE: I think that’s fair comment. Again you are in a system in which the Scottish Parliament because it is a statutory body, because it doesn’t have any law and custom to draw on, it doesn’t have any tradition of self regulation, if you like, in contrast to Westminster, is operating within a framework which leaves much less room for manoeuvre then the Westminster system, and there was litigation at an early stage which underlined that when the Parliament Standards Committee tried to meet in private and that was successfully challenged by way of judicial review. I don’t think the case itself ever got as far as judicial review but the Court made the point that this is a statutory body, it only has these powers given to it by statute, it must be open, it must be transparent in its procedures and soon I think that probably was quite a salutary intervention. It headed off any inclination there might be to deal with these matters behind closed doors.

THE CHAIRMAN: Thank you very much indeed, I think I am beginning to understand Sewel.

PROFESSOR PAGE: I’m not sure I have persuaded you there is a problem here, other than in academic terms.

MR DAVIES: It’s becoming less controversial now?

PROFESSOR PAGE: That is my hope, that people will accept that this is going to be a feature of the legislative landscape, it is not just a passing phase, and that therefore we ought to think properly about how to deal with it and come up with a better system than currently exists. I had the sense though I wasn’t persuading you of that.

SIR MICHAEL WHEELER BOOTH: Sewel was dreamt up very quickly between stages of legislation going through and people suddenly realised there was a problem.

THE CHAIRMAN: Or there may be a problem.

SIR MICHAEL WHEELER BOOTH: It was so ad hoc and so terribly British.

THE CHAIRMAN: Yes, they didn’t expect it to be big problems.

PROFESSOR PAGE: That’s what I don’t understand: why people were so confident that Westminster legislation would be a thing of the past, because when you think about the pressure for uniformity there is so many sources.

THE CHAIRMAN: Thank you very much indeed, much obliged.

PROFESSOR PAGE: Not at all.