CORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 139-xi

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

Scottish Affairs Committee

the referendum on separation for scotland

Wednesday 31 October 2012

Rt Hon Michael Moore MP, Rt Hon David Mundell MP, Alun Evans and Chris Flatt

Evidence heard in Public Questions 1596 - 1750

USE OF THE TRANSCRIPT

1. This is a corrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.

2. The transcript is an approved formal record of these proceedings. It will be printed in due course.

Oral Evidence

Taken before the Scottish Affairs Committee

on Wednesday 31 October 2012

Members present:

Mr Ian Davidson (Chair)

Jim McGovern

Pamela Nash

Simon Reevell

Mr Alan Reid

Lindsay Roy

________________

Examination of Witnesses

Witnesses: Rt Hon Michael Moore MP, Secretary of State for Scotland, Rt Hon David Mundell MP, Parliamentary Under-Secretary of State for Scotland, Alun Evans, Director, and Chris Flatt, Deputy Director, Scotland Office.

Q1596 Chair: Secretary of State and Mr Mundell, could we make a start? We are obviously moving forward on the whole question of the referendum for Scotland. It would be appropriate, before I ask you to say any introductory remarks, to ask whether or not you have had legal advice on all of this.

Michael Moore: We have decided to arrive without our lawyers this afternoon, Mr Chairman. On all of this, of course, we have thought about things very carefully indeed, including consulting our lawyers.

Q1597 Chair: When you say you have consulted your lawyers, does that mean, yes, you have consulted your lawyers or no, you have not consulted your lawyers but you wish you had consulted your lawyers? We do not want to be in a position where David Mundell, impersonating Nicola, has to come back and say what he meant was that he had not actually consulted his lawyers at all.

Michael Moore: We are in a good place on this, Mr Davidson.

Q1598 Chair: I am very glad to hear that, because this does raise the question of trust. One of the concerns that we have is about whether or not, given the recent debate about legal advice, we can trust everything that is being asserted. As we go through this, we will raise on a number of occasions what your understanding has been of the agreement that was reached and will want to be following up whether or not these agreements are being followed through in good faith. You will understand, as I say, why we want to do that.

Before we come on to the detail, there are a number of other points we want maybe to seek clarification from you on as well. There have been calls for debates between the Prime Minister and the First Minister. It is this Committee’s view that the referendum is something that has to be achieved, managed and fought out in Scotland. Therefore, if there are debates taking place, you or another Scottish representative of the Government-[A mobile phone rang.]

We mentioned the Prime Minister and immediately the Tory Member’s phone rings. Is that psychic, or is it not? We want to make it clear that, in our view, this is not a matter for the Prime Minister to be involved directly in debates with the First Minister. This is a matter for yourself and others. Is that something that you understand?

Michael Moore: Yes. The Prime Minister has been very clear on this himself. He said, much like you, that this is a matter for people in Scotland to determine. He believes that is the most appropriate way. Of course he will debate the politics of this in different forums and we had the points raised in Prime Minister’s Questions last week. There will be plenty of opportunities for the Prime Minister to participate. He looks forward to that. What is curious about all this is that the First Minister keeps wanting to pick a debate or a fight with somebody from England rather than having the debate within Scotland itself. Over the next two years, we will have ample opportunity for him and all of us to be part of this debate. It should not be just about the politicians and the experts. It should also be about people in Scotland being part of it as well and I am pretty sure that over the next two years that is what will happen.

Q1599 Lindsay Roy: I want to know whether that will be consistent because we heard echoed again and again that this is "made in Scotland".

Michael Moore: Indeed, it has been a refrain from those of us who serve in the UK Parliament but also particularly from the Scottish Government as well that this is a contest, or an issue, that has to be resolved in Scotland and I am sure that is how it will work.

Q1600 Chair: So there will be no English Tory posh boys coming up to tell us what to do.

Michael Moore: Nobody will be excluded from the debate about this, but the key debate will be for those of us in Scotland.

Q1601 Chair: Fine, thanks. In those circumstances, I understand that the Government are preparing various papers to be lodged at one time or another indicating various aspects of the separation issues. Our view, which we want to transmit to you, is that these should be coming from yourself, perhaps to us or perhaps to another forum, but the Scotland Office is the vehicle for these issues, debates and papers to be injected into the political discussion. Is that something that you accept?

Michael Moore: I do, and indeed, as you will have seen in some of the press coverage on this recently-and you will, I hope, recall my announcement to Parliament in June about the work that we are undertaking-all the issues of independence and separation are being brought to the fore. We are working across Government on this, particularly with colleagues in the Treasury, but elsewhere as well. We certainly, as the Scotland Office, are and will continue to be central to those efforts. All the papers that are published will, of course, be given to you as a Committee and I would welcome your scrutiny of them because what we want to see is all the facts, figures and analysis in the public domain open to scrutiny by you and anyone else who wishes to do so.

As you are aware, other Committees of this House and their Lordships’ House are looking at these issues as well. There are papers that are being submitted to them and to their inquiries. I hope, out of courtesy, that you have already had those submissions and if you have not I will make sure that they come to you as well.

Q1602 Chair: Fine. That is very helpful. In relation to that as well, I want to talk about the position of central Government Departments as regards reports produced by this Committee. We have produced one recently about Trident and we have heard that the position of the Ministry of Defence is that since it does not expect separation to occur it is not having any contingency planning and does not see the need to respond to our report. I have to say that that is simply not acceptable and is disrespectful to the people of Scotland. If we are producing a paper about the possible consequences of separation upon Trident, we do expect the Ministry of Defence to have considered the "what ifs" of this and be in a position to respond, saying what it would do in the event that there was separation. I raise this now because we will be looking in a little while at a whole number of other defence establishments, and indeed defence manufacturing plants, and simply for the MOD to say, "It will not happen, so we are not considering it" will not be adequate. I hope you accept that and will communicate it back.

Michael Moore: We have been explicit that we are not prenegotiating on the issues of independence, which are many and varied, as we have already touched on briefly in this afternoon’s session, and there is a whole range of them to be examined, as you and your colleagues will do. I will absolutely clear up that the Ministry of Defence will, of course, respond to the Committee’s report. Whether you agree with the response, of course, will be a matter for us to debate further, but there should be a report to you in response to it. It will happen.

Q1603 Chair: Fine. We have made it clear that, in our view, as much as possible of the information should be made available to the Scottish people before the referendum rather than as many things as possible being pushed until after the date of the referendum. People have to be aware of what the consequences of a vote for separation would be.

Michael Moore: One of the key issues that has arisen from your inquiry already and from other things is the large degrees of uncertainty that exist across the spectrum of issues. That is something that we all need to look at carefully. We need to ask the questions; you are asking the questions and many individuals across Scotland are asking those questions too, businesses and others as well. We need to have as many of those questions asked as we can, and hopefully answered, so that we can have as informed a debate as possible.

Q1604 Chair: Fine, thank you. We can move on to the question of the Order and the memoranda. Now that they have been laid before both Parliaments, could you outline to us what you understand be to be the timetable for these?

Michael Moore: As to the timetable-if I may approach this from the end and work backwards to explain why we have started at this point-as I think I made clear to the Committee when I was here before you in September, the intention of the Scottish Government is that they should introduce a Referendum Bill into the Scottish Parliament in March with a view to the scrutiny of that Bill taking place over the following months and being passed into law in November, roughly speaking this time next year.

As you will see, we are promoting an Order in Council that requires it to go to the Privy Council. We are hoping to be able to be in a position to do that in February. That requires that, for us, both Houses of Parliament have scrutinised and passed the Order and that the Scottish Parliament should also have done that. We worked through the amount of time that Parliament here may wish to spend scrutinising it and decided that we needed to promote or publish it now.

Q1605 Chair: Can I be clear that there is no scope for amending the Order, that it is a "take it or leave it"?

Michael Moore: It is the nature of the legislation under which we operate that that is indeed the case. We seek Parliament’s approval for the order as it stands.

Q1606 Chair: What happens if a technical error is discovered?

Michael Moore: We have obviously made best endeavours-both Governments have been working hard on this for the last few weeks-to ensure that we have avoided any technical errors. We do not believe there are any, but we will obviously now wait for parliamentary scrutiny of that and for others to see if they believe there are any. But we are confident that we have orders which are technically correct.

Q1607 Chair: I presume that, but presumably Mr Evans and your legal adviser are not infallible. Can I clarify what would happen in the event that an error is discovered?

Michael Moore: In the very remote circumstances-I hope-that you describe, orders get withdrawn and resubmitted in the appropriate fashion.

Q1608 Chair: They get withdrawn, amended and resubmitted, therefore.

Michael Moore: If I can remind you, it would have to be passed in the same form in both Parliaments.

Q1609 Chair: I understand that, fine. If a technical error is discovered, orders can be withdrawn, amended and resubmitted. Therefore, if the will was there, they could be amended in other ways.

Michael Moore: I am not sure that there have ever been examples of that, but if there have been we can furnish them to the Committee, but for technical reasons.

Chair: It is helpful to clarify that these things can be withdrawn and resubmitted.

Jim McGovern: How quickly could that happen?

Q1610 Chair: How quickly could that happen? Sorry, maybe I should have said that to Mr Flatt.

Michael Moore: No, there was a bit of information I was unaware of there. Counsel for the Joint Committee on Statutory Instruments has reviewed it and I understand is satisfied that it technically achieves the aims that we seek.

Q1611 Chair: But presumably it is not infallible either. If we discover that there is still an error, the mechanism is as you outlined.

Michael Moore: I think we would be in new territory, but clearly we would not wish to move forward with a technically deficient-

Chair: And we are reassured that you have taken legal advice definitely on that.

Jim McGovern: Chair, I don’t think I have had my question answered.

Michael Moore: I apologise.

Q1612 Jim McGovern: If that error took place, how quickly could it be corrected?

Michael Moore: We would be looking to do that immediately.

Q1613 Jim McGovern: Immediately.

Michael Moore: As quickly as possible. I do not envisage the circumstances. You are tempting me into highly hypothetical territory here. I appreciate your concern that this is done properly, thoroughly and as speedily as possible. I think we have shared interests in that.

Q1614 Lindsay Roy: During your negotiations, did the Scottish Government accept that Holyrood does not have the legal power to hold the referendum on separation?

Michael Moore: This whole process, at the end point, was based on their acceptance that this Parliament holds the power and needs to devolve it.

Q1615 Lindsay Roy: So it required a section 30 order.

Michael Moore: Yes.

Q1616 Lindsay Roy: Can you explain how the order works legally?

Michael Moore: What the order does is to remove the reservation on issues relating to the union of the Kingdoms of Scotland and England, which, in shorthand, means that anything to do with the constitution about the UK and the union of Scotland and England is for this Parliament, not for the Scottish Parliament, to determine. Clearly, to allow a referendum based on legislation of the Scottish Parliament to be legal we need to remove that reservation. We are doing it in this very narrow way for a specific period of time. As you will have seen, we envisaged that this has to be held before the end of December 2014.

Q1617 Lindsay Roy: Are you satisfied that this is legally watertight?

Michael Moore: Yes.

Lindsay Roy: Thank you.

Q1618 Mr Reid: There is the memorandum of agreement which accompanies the draft section 30 order. Can you tell us what the status of that memorandum of agreement is?

Michael Moore: The agreement is one between the two Governments and you will have seen that the Prime Minister, the First Minister, the Deputy First Minister and I signed the agreement in Edinburgh two weeks ago. It is not legally binding but it does set out very clearly the agreed framework under which the Scottish Government will proceed with the development of the question, the Referendum Bill itself, and all the other issues that are covered in the document.

Q1619 Mr Reid: Say, for example, the Scottish Government did not abide by the terms of the memorandum of agreement, what would happen then?

Michael Moore: That is going to be a matter for the Scottish Parliament to determine as it considers the Referendum Bill. This, like a lot of our everyday work between the Governments, has to be based on a memorandum. We have a memorandum of understanding which covers all the intergovernmental work. I believe that we have set out some very clear processes here for the involvement of the Electoral Commission, which it is committed to, and for the full scrutiny by the Scottish Parliament. Those two bodies will have a very big role to play in ensuring that the Scottish Government maintain the promises they have made in this document.

Q1620 Mr Reid: Will you be monitoring the Scottish Government’s actions to see if they do keep to the memorandum?

Michael Moore: I do not think we will be alone in keeping a very close eye on all of this: parliamentarians here at Westminster, parliamentarians in Holyrood likewise and indeed people across Scotland will be looking at this. As the events of the last 10 days have shown, there is a very high price to be extracted if you do not maintain people’s support for what you are doing. In that spirit, the scrutiny of the Scottish Government will hold them to this document and the promises they have made.

Q1621 Mr Reid: I want to turn particularly to the last paragraph of the agreement at paragraph 30, entitled "Cooperation". It talks about the two Governments working together on matters of mutual interest, good communication and mutual respect. Given that the Scottish Government have been prone to interpret things creatively and in its own interests, can you tell us what the purpose of that paragraph is?

Michael Moore: I think it is fairly straightforward. There are only four sentences here. The first half of the paragraph is basically setting out that by longstanding agreement, predating this Government and indeed the current Scottish Government, there is a memorandum of understanding between the Governments about how they will work together constructively to ensure that the everyday business of Government works effectively. That is the spirit, as we acknowledge here, in which this agreement has been reached. It then simply states what I hope is obvious but worth stating that we all hope to have a legal and decisive referendum, the outcome of which will be respected by both sides.

Finally, what it is saying there is that we are committed to working together irrespective of the outcome, so we will accept that outcome. It is no more than that. I have heard some suggestions that it might mean more than is said there, but I do not think anybody could be in favour of the opposite of that. So at that level it is a statement of the obvious, but I think it is worth while having it there to show the spirit in which this has been done.

Q1622 Mr Reid: Yes, but the Scottish Government appear to be interpreting that part of the agreement as meaning that if there was a yes vote on the referendum, then, when it came to negotiations afterwards, the Scottish Government would find it straightforward to get generous concessions from the UK Government in those negotiations. Do you share that opinion?

Michael Moore: What we have said-and I think it is entirely right and proper-is that we, like they, will respect the outcomes. So I am confident that we will win the referendum. I look forward to the Scottish Government working constructively and cooperatively with us in terms of maintaining the devolution settlement and developing it as this Parliament and theirs has shown with the Scotland Act this year. As far as this being some kind of magic lamp that when you rub it the genie appears and there are three for four wishes that you are entitled to and it clears away all the difficulties of an independent Scotland, that is completely incorrect. This says that we would of course work constructively and in an engaged fashion with each other.

Q1623 Mr Reid: We are finding that the Scottish Government is already interpreting the agreement quite widely. For example, the Scottish Government has said recently that it can only now ask for specific legal advice on a separate Scotland’s future in the EU because of the memorandum of understanding. When the Spanish foreign minister said that a separate Scotland would need to join the end of the queue for EU membership, the Scottish Government said that he had been overtaken by events because of the agreement. What do you think of that interpretation of the agreement?

Michael Moore: There are two ways of looking at that. I regret the fact that it was said that it required this agreement before any legal advice could be sought on Scotland’s future membership of the European Union. This did not need to happen. The Scottish Government could have taken legal advice, considered all the options and given a view on those at any stage in the last 18 months since they were in a position politically to hold this referendum. They chose not to do so. There is nothing in this agreement that unlocked the process to enable them to do that, so I am glad to have the chance to correct that misconception.

Secondly, on the issue of being overtaken by events, I have heard this phrase used quite often by people in Scottish nationalist circles where they, for instance, said after the Scottish elections last year that the Scotland Bill had been overtaken by events and would never pass. In fact, it did pass with their unanimous support within the year.

Clearly, as far as the Spanish foreign minister’s observations are concerned, if that had been overtaken by events, then perhaps the exchange between Commissioner Reding-the European Commissioner-and the Spanish Government about Catalonia’s status would have overtaken the events in question as well. So I think the issue here is that Scotland’s place in Europe, as we are focusing on that, would be extraordinarily uncertain.

Mr Reid: Thank you.

Q1624 Lindsay Roy: Was it a surprise that the agreement and the memorandum of understanding were put together prior to the publication of the consultation by the Scottish Government?

Michael Moore: It was always a matter for the Scottish Government to determine when they would publish that consultation outcome.

Q1625 Lindsay Roy: Did it not seem premature?

Michael Moore: Let us remember that for a long time it was put to us that we could not start discussing it until the consultation outcome was known. It turned out in the end that we could discuss it before the outcome was known and, whatever the reasons were-and the Deputy First Minister and the Scottish Government really need to answer those questions-the important point was that a few weeks ago, as you know, when the Deputy First Minister was put in charge of the constitutional process, at that point we were able to get on and have serious discussions building on the work that David had done with his then opposite number, Bruce Crawford.

Q1626 Lindsay Roy: You have no indication as to why there was a change of heart.

Michael Moore: None whatsoever and people have struggled to get the answers when they have asked those questions in the Scottish Parliament.

Q1627 Chair: Can I just be clear? Are you saying that the results of the consultation that the Scottish Government held were not drawn to your attention in any way by the Scottish Government?

Michael Moore: Throughout the discussions, they were not shared with us, and indeed I think the Deputy First Minister, if I read it correctly, launched the consultation and had only just received it herself days before she made her statement to the Scottish Parliament last week.

Q1628 Chair: I’m sorry, but I am having difficulty grasping this. So not only were you not told the results of the consultation, but are you saying that the Scottish Government themselves did not have the results of their own consultation when they came to a conclusion?

Michael Moore: I am unaware of when they got those and when their independent analysis was completed. That would be a matter that they should answer, but, as far as the dealings I was having with the Scottish Government throughout this process were concerned, at no stage did the consultation outcome get shared with us.

Q1629 Chair: It would seem exceedingly bizarre, would it not, to have a consultation and then strike a deal on the subject about which you were consulting before you actually had the results of the consultation? I am almost glad now that I did not respond because it would have been, surely, a complete waste of time for anybody in Scotland that responded to the Scottish Government’s consultation to find that they came to a conclusion on these issues before the consultation was either published or drawn to the attention of Scottish Ministers?

Michael Moore: I would simply point to our own practice earlier in the year where, within a month of the actual consultation being concluded, we had not only published a report on it but we had also published all the responses to it. You make some important points, Mr Davidson, which I am sure the Scottish Government would be happy to answer for you.

Q1630 Chair: Did it never occur to you to ask them whether or not they had the results of the consultation?

Michael Moore: Look, I am not going to reveal all the ins and outs of the discussions we had with the Scottish Government through that process.

Q1631 Chair: Go on.

Michael Moore: Suffice to say, the results of this were not shared with us in the course of these discussions. In fairness, to my mind, the relevance was what the Scottish Government believed it could command support for in the Scottish Parliament and in wider Scottish opinion. I believe, in terms of the section 30 order and the agreement beside it, we have achieved that.

Q1632 Chair: Can I clarify how much your consultation cost, do you know?

Michael Moore: I would have to ask officials.

Q1633 Chair: Let us know, as that would be considered money well spent because at least you then took account of the results of the consultation. You do not know how much the Scottish Government’s consultation cost because, like the £12,000 to protect the existence of the legal advice that did not exist, that would seem to have been a complete waste of money if this consultation, which presumably cost-and the company involved cost-an enormous amount of money, was then not passed to the Ministers before they struck deals on the subject of the consultation.

Michael Moore: I am sure everybody has heard your observations and the questions are very important for the Scottish Government. In fairness to the Scottish Parliament, these are questions that are being getting asked there as well.

Chair: Goodness me, that is a surprise.

Q1634 Lindsay Roy: Did you not press at all for even a broad indication of the outcome of the consultation?

Michael Moore: No, we did not discuss it because it was not part of the negotiation. We knew what we had seen from the consultation, and while it was-

Q1635 Lindsay Roy: Can I ask why not?

Michael Moore: Sorry, Mr Roy, I didn’t catch that.

Q1636 Lindsay Roy: Why did you not ask for a broad indication?

Michael Moore: We knew what was in our consultation, and we published it. We were confident it supported the case we were arguing for, which is pretty well reflected in this agreement that we now have. It was a matter for the Scottish Government to determine the importance or otherwise of the consultation that they had brought forward. They did not have it or chose not to share it with us. Whatever the case was, for us the important thing was that we were able to work through the issues, which we did, and hence the agreement that is before you.

David Mundell: I think the Scottish Government made it clear that their thinking was based on reaching an agreement that could command majority support within the Scottish Parliament.

Q1637 Chair: Why then, in that case, did they bother having a consultation?

David Mundell: Obviously it was our concern to ensure that an agreement was reached that could command majority support in the Scottish Parliament.

Q1638 Chair: Presumably your negotiating position was influenced by the results of the consultation. It is difficult to see that the Scottish Government’s negotiating position was influenced by the results of the consultation when they did not know what the result of that consultation was.

Michael Moore: You are inviting us to speculate-

Chair: Indeed.

Michael Moore:-on how the Scottish Government approached this matter. For me, the good news is that they came out the other end of this process.

Q1639 Chair: I understand that, but it does again raise the question of trust, and Mr Reid did raise the point about clause 30 and the way in which this is now being creatively interpreted to suit one position. It makes me a bit anxious lest we find that section 30 is interpreted creatively as having built up a number of obligations for yourselves, such as the Bank of England, monetary union, access to NATO, the EU, Trident and West Coast Main Line. All of that could be interpreted creatively as being covered by section 30.

Michael Moore: Paragraph 30 is there very straightforwardly: "The two Governments are committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom." It is no more, no less than that. I think that is the right spirit in which to go into this process and to agree how we will handle the outcome.

Q1640 Chair: So this is a "motherhood and apple pie" paragraph, is it?

Michael Moore: At the risk of being vaguely insulting to it, you might say that but I think it is a very important statement.

Q1641 Chair: Legal advice.

Michael Moore: Put it this way, it would be very hard to be in favour of the opposite of this and no responsible Government, north or south of the border, would argue that.

Q1642 Chair: But it does not mean anything else. That is fine.

Michael Moore: It doesn’t mean anything beyond the words that are written on the page.

Q1643 Jim McGovern: On the basis of the legalities of this, you had sent out a letter following the signing of the agreement saying that-I think it said-the referendum should have a clear legal basis. The Deputy First Minister of Scotland, Nicola Sturgeon, said the next day, "We might listen to the Electoral Commission but we are not bound by how they guide us." If the Electoral Commission gives certain advice and guidance to the Scottish Government and the Scottish Government choose to ignore it, will it still be a legal and binding referendum?

Michael Moore: May I take that in two parts, Mr McGovern? On the first bit about the legal basis, that goes to the heart of Mr Roy’s question about the legal power of the Parliament to hold this referendum.

Q1644 Jim McGovern: Which Parliament?

Michael Moore: The power of the Scottish Parliament to hold the referendum. I have always agreed, the Government have agreed and I believe it has the support across Parliament here as well, that it was important that this referendum was made in Scotland, that it was run with legislation created in the Scottish Parliament. That is what we have been discussing over the last few weeks. The section 30 order itself allows the Scottish Parliament to carry out that referendum. It says it will be on a single question on independence. It says that there will be no other polls held on that day on any other issue that Parliament already has competence for and it is clear that it has to be held by the end of December 2014. That is the legal basis of the referendum which will now be moved forward once the Referendum Bill has been submitted to the Parliament.

Alongside that legal instrument, we have the memorandum of agreement where the Scottish Government have said in terms that they will follow the practice of the UK Governments, previous ones and the current one, in the way that the Electoral Commission is engaged in the process. It will be asked to test the question that is submitted to it, to scrutinise that, produce a report and inform the Scottish Parliament about it-likewise on all other aspects such as campaign finance. That is the same standard that is applied to us in the UK Government. We are not asking more of them than we would apply to ourselves. That is an important principle of devolution.

It is very hard to argue that the Scottish Parliament should have to have a higher standard on this than we would accept ourselves. The role of the Electoral Commission is very carefully spelt out in the agreement, and I believe that, based on its credibility, its experience and everything else, it provides a very strong track record which shows it is neutral and above the fray. Therefore, people in Scotland will expect the Scottish Government to follow its recommendations. We have, as a coalition-and the previous Labour Government-never disregarded the advice on the question or on financing limits. Indeed, I am happy to give the Committee further written evidence on this about changes that have been made in the past following Electoral Commission advice. What we believe is important is that the Scottish Government should now follow that track record.

Q1645 Jim McGovern: That does not quite answer the question. They can, perhaps at their peril, choose to ignore it if they wish.

Michael Moore: In the same way that the UK Government could disregard the Electoral Commission’s position on the wording of questions or other things, so too could the Scottish Government, but I think they would do so-and you used a very important phrase there-"at their peril". Again, we have seen in the last week the risks you take with public trust if you act in a way that people do not believe is right. There is a big onus on the Scottish Government to follow standard and expected procedures and I believe they should.

Chair: Pamela, do you have a question following on directly from this?

Q1646 Pamela Nash: Yes. First of all, Secretary of State, the difference is that none of the main parties here in the UK Parliament have ever publicly said that they would consider going against the Electoral Commission’s advice on the instance that we are talking about, on a referendum, although I appreciate where you are coming from.

Just before we move on, following Lindsay’s earlier question about the Scottish Government accepting that they did not have the legal powers to hold a binding referendum-and certainly none of the rhetoric I have heard from the Scottish Government before the order was made would indicate that-I want to know if, in your meetings with them, they ever mentioned receiving legal advice on their ability to have a legally binding referendum without a section 30 order.

Michael Moore: I have had countless meetings on this over the course of the last 18 months. We have debated lots of things to and fro. I am not in a position to recall precisely one way or the other; suffice to say they maintained in public a very strong position on what they believed the settlement for the Parliament allowed. I think the proof of the pudding is that when it came to the crunch they accepted that the only way to ensure that this was beyond legal challenge was to have the power transferred.

Q1647 Pamela Nash: I suppose what we are trying to get to the bottom of is what caused the change of heart in the Scottish Government. I have asked the First Minister this and yet, three months on, he has yet to respond to my letter asking him, which is why you are getting asked because you are here.

Michael Moore: I respect and understand that. I simply celebrate the fact that, from what looked like an unpromising starting point, we have now reached agreement, and they are committed with us to getting the section 30 order passed through both Parliaments.

Chair: It is a standard format, isn’t it? It is bluff and bluster and insistence and constant repetition and then some things change and you move on from there. We have seen it at the moment in Europe and we will see it again and again. Maybe, Simon, I could ask you to come in now because I am conscious that you have to leave early.

Q1648 Simon Reevell: Yes. Could I pick up on one thing you just mentioned? You said that the order that is being proposed would not allow for any other vote or poll on the day of the referendum. My understanding is that it would not allow for another referendum on the same day but there is nothing in the section 30 order that prohibits there being a vote on something else. It is section 3(2) that I think is relevant.

Michael Moore: I am sorry, yes. What we were getting at here was the idea of a referendum on more powers, or whatever, that might act as a second, which was the issue at stake.

Q1649 Simon Reevell: But if there were elections called, for whatever reason, there is no prohibition to any other ordinary electoral activity. It is only the referendum.

Michael Moore: Yes, but those are fairly rare and unusual and I do not believe that there is any prospect of it being on the same day. But, you are right, this does not exclude it.

Q1650 Simon Reevell: Depending on your definition of "rare and unusual", this is quite rare and unusual, isn’t it?

Michael Moore: This is very rare, thankfully.

Q1651 Simon Reevell: You were before the Committee last on 17 September. I assume that, since then, the negotiations went very well and fairly easily because you had hoped, in an ideal world, they would be wrapped up by 22 October but they were signed by 15 October. I am assuming from that that things were not particularly difficult or complicated.

Michael Moore: They were fairly straightforward negotiations, but each side expressed its views very strongly. We worked through areas of difficulty and did that successfully, and in a fairly relatively short period of time.

Q1652 Simon Reevell: It was a week less than you thought it would take in an ideal world.

Michael Moore: We wanted to be able to table the order by the time both Parliaments were back and the Scottish Parliament, obviously, was in a recess-

Q1653 Simon Reevell: Feel free to take the compliment.

Michael Moore: I am grateful to you for the compliment. I would just say that both sides entered into this very constructively, so it was good.

Q1654 Simon Reevell: After the session we had on 17 September, when you and I had discussed the issue of the franchise, I had in my mind, I suppose, three things that had followed from those discussions. The first was that you had a presumption against the franchise being extended to 16 or 17yearolds. Correct me if you think I am wrong about that.

Michael Moore: It might help if you give me all three bits.

Q1655 Simon Reevell: The second was that you had received no firm proposals from Scottish Ministers to the contrary. The third was that the issue of the franchise should be dealt with in the section 30 order unless there were strong and clear reasons for not doing so, or indeed strong and clear agreements that meant it did not need to fall into the section 30 order.

Michael Moore: On the first of those I have consistently said that there is. As a Liberal Democrat, if I may put it that way as different from a coalition position here, we support votes for 16 and 17yearolds. My point had been throughout that, in an ideal world, you would not just offer this for a oneoff event. It would be for everything. You would need to have consensus across the parties to be able to achieve that. I observed then and observe again that that consensus does not exist.

We also, however-I believe I also made clear at the time-respect the fact that once you have passed the power over a particular issue to the Scottish Parliament, should they have a desire to hold a referendum on that, then it is for them to determine the franchise. So for us to restrict 16 and 17yearolds, we would have to put a specific restriction in the section 30 order. On this issue, we were willing to say, "Look, there are different views within our Parliament about this. This is a matter they will have to take to their Parliament." But we agreed not to put that restriction there. I believe that was, in fairness, important to getting the overall agreement.

Q1656 Simon Reevell: So my understanding that there was a presumption against 16 or 17yearolds having the vote at the time you came before us on 17 September is accurate, that there was a-

Michael Moore: The presumption was that our position was that it was preferable that they did not, in terms of the coalition or wider Parliament, but I do not believe I said that there was no question of them at any point having that power. We would have to talk that through. We wanted to see what they were proposing.

Q1657 Simon Reevell: On my understanding that there was a presumption, what you said was "our presumption would be against 16 and 17yearolds having the vote for this oneoff electoral event". That is where I got my presumption from. So we had a shared presumption.

Michael Moore: Yes, which was subject to further discussions.

Q1658 Simon Reevell: We can come on to the second one. You asked me to tell you all three, but the first one was that I had an understanding that there was a presumption against it.

Michael Moore: Okay.

Q1659 Simon Reevell: Was that right at the time?

Michael Moore: You have asserted it and read out the relevant piece, so I am happy with your presumption.

Q1660 Simon Reevell: On 17 November, you had received no firm proposals from Scottish Ministers to extend the franchise.

Michael Moore: It was 17 September. You might have said November.

Q1661 Simon Reevell: Yes. On 17 September, the last time we were all doing this in the other room, you said that "As yet, we have had no firm proposal from Ministers to discuss exactly what they are proposing."

Michael Moore: As things stand, we don’t have it today either. It would not be for us.

Q1662 Simon Reevell: On 17 September, the presumption was against and there were no firm proposals to the contrary. You and I discussed this and your view or starting point was that-and I am quoting you again-"Unless there are very strong alternatives in terms of the memorandum", it absolutely should be in the section 30 order, the detail of the franchise. By the time we had finished on 17 September, there was a presumption against 16 and 17yearolds having the vote, there were no counterproposals from Scottish Ministers and it was something that absolutely should be in the section 30 order. If we fast forward to 15 October and look at what happened, it is quite different by about 180 degrees. I am wondering what the strengths of the arguments were that persuaded you in such a short time to abandon the presumption, to abandon the need for the franchise to be dealt with in the section 30 order and to leave it to the Scottish Parliament to decide whether 16 or 17yearolds get the vote.

Michael Moore: The last one is the relatively straightforward bit of that, that we, as I have already enunciated, recognised that the Scottish Parliament, once given the power, has the ability to set out the franchise and that is the way it-

Q1663 Simon Reevell: We always knew that because when you and I discussed this last time-

Michael Moore: I believe I made reference to that, but perhaps not in answer to your questions. The "made in Scotland" issue was one that, in the course of the hour and a half, I am reasonably confident we covered, but I would be happy to check that.

Q1664 Simon Reevell: Let me help you.

Michael Moore: I think the gist of this is that you believe that we should not have made this and you want to know why, perhaps, we did.

Q1665 Simon Reevell: I am interested to know why you had such a clear understanding of what should happen based on the information available to you on 17 September and why, by the date that everything was signed on 15 October, it had changed completely, that the franchise was not in the section 30 order, that it was going to be entirely at the discretion of the Scottish Parliament, which was a completely different position. You are entitled to change your mind. I am just interested to know what the arguments were that you found so powerful that you changed your mind so completely in such a short period of time.

Michael Moore: If I may say so, I appreciate that we do not see eye to eye on the issue. I think it sits within the broader context of the "made in Scotland" principle and the role of the Scottish Parliament, which I was happy to accept, and there was a position on which, not unsurprisingly perhaps, the Scottish Government and the Scottish National Party felt very strongly, that the Scottish Parliament should be the one to determine the franchise. I recognised that that was a key issue for them. Therefore, I was not going to get an agreement if we insisted on putting in the restriction that would remove that or putting in, spelling out, the entire franchise, bearing in mind that we were in broad agreement that it was the Scottish Parliament franchise that should be the basis of all this. So, recognising their views on that, recognising too that the Scottish Parliament will still scrutinise this, and they still have to bring forward their proposals, I was content to make that agreement with others as well and change from the position that I had had then. A lot of discussions happened in the meantime before we got to that agreement.

Q1666 Simon Reevell: So on 17 September, where you felt the issue of franchise was something that should be dealt with in the section 30 agreement-so that it was something that was considered here, prior to that-had it not occurred to you that the Scottish Government might feel strongly about the franchise for a referendum on independence?

Michael Moore: Yes, and we had heard that. We had not had all the detailed discussions at that point and I take responsibility for the balance of the agreement that we reached. I believed that on that point we could and should respect the principle that the Scottish Parliament will determine the franchise without actually having conceded two political points that are very important: one, that this will be straightforward or easy or won’t have problems that people in the Conservative Party and elsewhere have highlighted, but that will now have to be debated in the Scottish Parliament-there is not a free pass on that-and, secondly, without prejudice to the fact that it has no bearing on what happens here at Westminster for any other elections. I think that is not ideal, but, in the circumstances and in the interests of making sure we could reach agreement, I thought that was acceptable.

Q1667 Simon Reevell: Your belief is that the concession that you made in relation to the franchise is unlikely to have any sort of impact at all on franchise for other elections within the United Kingdom in the future.

Michael Moore: It certainly has stirred up a political debate, and that is good because we can examine the issue in a UK context and determine whether or not it is an appropriate thing for House of Commons votes. We have wellrehearsed party positions on all of that. I know that lots of people inside and outside Parliament are getting into that debate. But it will only be if Parliament itself were to have a proposition in front of it to change the vote and then agree to it that it would change. So I think we are a very long way from having that thorough debate or getting anywhere near somebody suggesting that there should be legislation on this.

Q1668 Simon Reevell: In the negotiations that took place after 17 September, what were the arguments that you put forward for the franchise being included within the section 30 order? You left us on 17 September saying the franchise should be in the section 30 order. By the time the agreement was signed on 15 October, it was not, but I presume that you argued in favour of what you described to us but accepted that the other side had better arguments. I am interested to know what arguments you advanced to support the section 30 point.

Michael Moore: This may not be to your liking, but I am afraid that I am not going to go through all the ins and outs of what were fairly extensive discussions at official level and between Ministers. The arguments were of the same order that we had discussed in this Committee and which had been discussed in other forums as well. There was no change to that.

Q1669 Simon Reevell: So you did argue in favour of it.

Michael Moore: Absolutely, I argued our position, but again in any discussion like this, designed-

Q1670 Simon Reevell: You say you argued your position. Whatever you argue is your position. Did you advance argument in favour of franchise being a section 30 matter?

Michael Moore: All through the process-

Q1671 Simon Reevell: After 17 September.

Michael Moore: Yes. I am trying to remember-I apologise that I am having to check this in my own mind-what the sequencing of meetings was. I had three different meetings with Nicola Sturgeon and I had two conference calls with her as well, so there was a total of five different times when we discussed all of this. All the arguments were laid on the table from our side in advance of all the different arguments or issues that are covered in the agreement. Likewise, they put their arguments forward. Over time, we reconciled ourselves to each other’s positions and reached agreement. Precisely where it was, I am afraid I-

Q1672 Simon Reevell: You can see why it is important from our point of view because you come before the Committee and say, "This is the position, that franchise should be a section 30 matter." The next thing we hear is that it is not. So someone has produced an argument that was so good you accepted it; something happened that you had never anticipated; or you did not really push it very hard in the first place, putting it simply. I am trying to work out what happened between 17 September when you were so clear and 15 October when you signed the agreement.

Michael Moore: I apologise, but I think I have answered that. I know you do not accept that I should have, perhaps, conceded this point or had it as part of the overall agreement.

Q1673 Simon Reevell: I do not criticise you. I simply want to find out how it came about. You may have done exactly the right thing but, at the moment, I am trying to understand why things changed.

Michael Moore: We went through a process of arguing the different points, making the case to each other, understanding where each other’s clear red lines were. In the context of the franchise for 16 and 17yearolds, very important as that is, I was satisfied that, within the bigger principle of the franchise being determined by the Scottish Parliament on a matter that was now to be devolved, this was acceptable and right and that, in the broader political debate about what this might mean here for Westminster elections or other elections across the UK, it was not something that had any consequences for that other than getting the debate going. On that, it is pretty clear to me that if you had a vote in Parliament on this at the moment it would not pass here at Westminster and I do not think anyone is proposing to bring that forward.

Q1674 Simon Reevell: Can I put it very simply, very finally, so that I understand it? The situation is just simply that, having started the negotiations after 17 September, looked at the strength of the arguments and the counterarguments, your judgment was that that was something that could go on to the memorandum, not the section 30, as part of the overall negotiations.

Michael Moore: That is, I think, a fair summary of the process we went through and where we ended up.

Simon Reevell: Thank you.

Q1675 Chair: It is a long political tradition that Liberals can completely change their positions from week to week, so I do not find that surprising. Can I come on to the question of dates? Am I right in thinking, following up the point that Simon made there, that the referendum could be held on the same day as the European elections?

Michael Moore: Potentially, it could. It could be held as a matter yet to be determined by the Scottish Parliament.

Q1676 Chair: That is right.

Michael Moore: There is a backstop.

Q1677 Chair: You are precluded from having a second referendum and so on, and I understand the point of no second question, but it could be held the same day as the European elections, which would certainly increase turnout. Was that discussed at all at any point?

Michael Moore: We did not discuss the date of it. We discussed the principle that the Scottish Parliament should be the one determining the date, which we accepted, subject to this backstop of December 2014.

Q1678 Chair: Fine. There is still the expectation that it is likely to be about October. I cannot remember the exact date that was given to The Sun by Mr Salmond but that sort of date is still the most likely, is it?

Michael Moore: There is no further discussion beyond what you and I have seen in the public domain.

Chair: Fine, thank you.

Q1679 Jim McGovern: The Secretary of State said that part of the agreement was that it would not clash with any other election on the day.

Michael Moore: Part of this is that there would not be any other referendum or poll that was seeking to get people’s opinions on, say, more powers for Scotland.

Q1680 Jim McGovern: So there could be umpteen elections, but just not on that subject.

Michael Moore: There is a cycle of elections already published for all the different bodies that people are elected to in Scotland and of course there are unexpected elections from time to time, byelections and the like, but, as far as a referendum is concerned, that was the key thing for us to be clear about.

Q1681 Jim McGovern: I want you to read your advice.

Michael Moore: Yes, I mean, it is simply saying, the order does not bind UK Government elections either, so in theory we could come forward with one.

Q1682 Chair: So the Government could have a general election on the same day if they so wished.

Michael Moore: We have a fixedterm Parliament.

Q1683 Chair: At the moment, but that is this week. Again, as we have seen before, positions can change, can’t they? That is an important point and I had not appreciated that it would be entirely possible to have a general election on the same day. I had assumed that there would be nothing else happening on the same day.

Michael Moore: As you will appreciate, what I think is very important is that these are separated out.

Q1684 Chair: I understand that. I am sure you would be the first to tell us if the general election was-

Michael Moore: Of course you would be the first place I would come to, sir.

Chair: Thank you. I am very glad to hear that.

Q1685 Jim McGovern: You are aware, Secretary of State, that this Committee has long said that there should be a single question. I think we are delighted that that now seems to be the case. In your negotiations with the Scottish Government, did they ever say or propose that there should be another question?

Michael Moore: Building on what I said to Mr Reevell a few minutes ago, all these issues were fully rehearsed by both Governments, so they were arguing originally for the possibility of more than one question. Of course that was discussed in the course of-

Q1686 Jim McGovern: Was that in favour of?

Michael Moore: Yes. All of the different issues were considered in the course of our-

Q1687 Chair: Can I just be clear on that? The Scottish Government were at some point proposing that there should be a second question. That was a formal negotiating position. This was not just a general discussion. This was a firm proposal from them that there should be a second question.

Michael Moore: What we discussed together was entirely in keeping with what they had said publicly, which was that some parts of the SNP were saying they wanted a single question and other parts were saying that they wanted to take account of what they saw as other people in Scotland’s opinions on more powers and, therefore, the case was made primarily by the First Minister on that. All of that was, of course, rehearsed as we discussed.

Q1688 Chair: I am not clear. What I am asking is whether or not, and when, in the negotiations between either the Deputy First Minister and Mr Mundell or the First Minister or Nicola and yourself, did they formally propose that there should be a second question? I want none of this vague, "There was talk about all sorts of things." Did they formally propose that there should be a second question?

Michael Moore: I am not going to go into the "hows and whys" of every last thing that was formally tabled or otherwise.

Q1689 Chair: This is not every last thing. This is a major issue.

Michael Moore: It is a major issue. Clearly, what I am seeking to say to you is that the position we discussed from the starting point of the negotiations was entirely consistent with the positions that the Governments had taken in public, so about two questions from their point, one from ours. We moved from there to the agreement we have before you.

Q1690 Chair: I am sorry, but you indicated earlier on that the SNP were saying two things at the same time. Some were saying that they wanted one question and some were saying that they wanted two questions. When you were having negotiations, I would have thought it was highly unlikely that they were saying two things at the same time and I want to be clear whether or not they were actually proposing-

Michael Moore: They wanted to explore all the options that would be available, including having more than one question, entirely consistent with what they had said in public would be their position.

Q1691 Chair: They proposed that there should be a second question and then abandoned that position.

Michael Moore: Over the course of the discussions-and we have been through some of the detail of the positions that we moved on-they obviously moved on this rather critical issue.

Q1692 Chair: They moved on this. That is helpful.

Michael Moore: You have seen the outcome.

Q1693 Lindsay Roy: That was not consistent with the Scottish Government consultation.

Michael Moore: The consultation, now that it has been published, actually shows that two to one are in favour of a single question.

Chair: That is because they did not know what the consultation was, did they, because they had not actually received it by then so they were not able to take that into account, I presume?

Q1694 Jim McGovern: Somewhat on the same question, Secretary of State, in my prior career I was a trades union negotiator so I know that some things are accepted and some are set aside. Could I take it that you are saying that the Scottish Government wanted a second question but, as part of the negotiations, you won that position and they ditched a second question?

Michael Moore: You are tempting me into dangerous territory, Mr McGovern.

Q1695 Jim McGovern: Yes, I am trying to and I want a straight answer actually.

Michael Moore: I am not going to put it in these terms. What I am happy to point to is the fact that, having had a very different position from the Scottish Government on the number of questions there should be, we got to a position where we have a single question referendum on the issue that everybody wants to resolve, namely independence.

Q1696 Jim McGovern: Okay, fine. Were there any discussions between the two Governments about the socalled devo-max, whatever that may mean?

Michael Moore: I cannot honestly say that I have ever heard a formal request about devo-max. I have always thought it was a kind of brand without a product. There was no definition to it and at no stage, publicly or privately, have we ever been offered a detailed plan of what that might have looked like.

Q1697 Chair: Does that also apply to the negotiations Mr Mundell had about devo-max?

David Mundell: I don’t recall any specific mention of the phrase devo-max in those discussions. In the early part of the discussions, we focused on very specific issues so that we would have a discussion about the PPERA rules or we would have a discussion about the franchise so that the structure of the discussions did not necessarily mean that all issues were on the table in every single discussion.

Q1698 Pamela Nash: Over the last few months, this Committee has very loudly expressed the opinion that we were concerned about the wording of the question and particularly concerned about the alleged new wording proposed by the Scottish Government. First, is each of you completely certain and confident that the Electoral Commission will be able to ensure that there is a fair question?

Michael Moore: The Electoral Commission has a very well-established track record in reviewing questions for referendums across the whole of the UK and in distinct parts of it. I will mention, perhaps before the Chairman does, the AV referendum being one, more powers for the Welsh Assembly and for the Welsh Government being another, so it has been there and has a really well-established process of testing questions. From the outset, we have argued that they should be central to this and we were pleased that, at an early stage, that was one of the areas of agreement. The Scottish Government said they, too, recognised the Electoral Commission. If I may highlight some of the points I made earlier about the Electoral Commission, we, as the UK Government, and our predecessors, the Labour Government, have never been bound by it; however, accepting its independence, neutrality and credibility, we always have, as did the previous Labour Government. That is an important track record for us as politicians and I think, therefore, having them central to this process can give us confidence.

On the question itself, of course we anticipate that the Scottish Government will wish to put forward the wording formally to the Electoral Commission at some point relatively soon. It takes the Commission some weeks to do its work properly and it is clear that they will also consult widely on that and it will be an opportunity for the questions submitted by the expert panel, or for anybody else, to submit their thoughts on possible questions and alternatives to the Electoral Commission.

Q1699 Pamela Nash: I will come on to that in a minute, but you will understand our concerns when Scottish Ministers, since this draft order has been made public, have refused to say that they will support the Electoral Commission and have made it quite clear that they are giving themselves wriggle room as to what the Electoral Commission might say about the wording of a question. In fact, leading up to this, the First Minister had originally proposed a completely new organisation to fulfil the role that we are giving to the Electoral Commission in this referendum. So you can understand why we continue raising this in the Committee.

Michael Moore: It is entirely legitimate and an entirely legitimate part of the political debate in Scotland. All of us are stakeholders in that all of us will want to see that this is fair and credible and that the whole process is transparent. I believe that-and we are talking about issues of trust-the trust of the Scottish people will be earned and maintained if the Electoral Commission is followed in what it advises. I also think that it is important to recognise that the same standards apply to the Scottish Government as would apply to us, so we are asking no more of them than we would ask of ourselves. The same political pressures that apply and the same public debate will of course exist here.

Q1700 Pamela Nash: Was it ever considered not to give the Electoral Commission the final say in the wording of the question, but perhaps to put in a clause that the Electoral Commission and the Scottish Parliament would have to agree a wording, or was it always insisted upon that it would be exactly the same as it has been in the past?

Michael Moore: It was a fairly straightforward principle to agree that these two should match one another and that we should not ask any less of the Scottish Government but no more either. I clearly cannot speak for the Electoral Commission but, as I observe, I do not know that they have ever specifically sought the power to determine a question. They do seek to be independent, neutral observers and as soon as, dare I say it, you would give them the power to set the question, you change the terms of that particular debate.

In the same way that the wording of the legislation talks about the intelligibility rather than the neutrality of the question, it is about ensuring that people understand what the words mean and that they know exactly what the issues are when they come to answer it. I think, again, the Electoral Commission have a very strong track record and have offered some very good advice. On a number of different occasions, the advice has been to change the question and the question has always been changed as a result of that in UK terms, and I expect that to be the case in Scotland as well.

David Mundell: I think I said when I responded to very similar questions during the statement in Parliament that we should not only have confidence in the Scottish people but we should have confidence in our colleagues in the Scottish Parliament to hold the SNP Government to account, to hold the First Minister to account. I think they have demonstrated that very ably in recent times and, who knows, by the time this matter is debated the SNP Government might not have a majority in the Scottish Parliament and there will be even more opportunity to hold them to account.

Q1701 Pamela Nash: As of two o’clock, when we came into this room, they still had a majority but, yes, that is falling away quickly, so who knows what the case might be when we leave.

Before we leave the Electoral Commission, you mentioned, Secretary of State, that other interested parties will be able to contribute to this process. Would you be able to give any detail today as to how that might happen?

Michael Moore: The Electoral Commission will be in charge of that process and will want to consult widely. Again, that is a matter for them to determine, but I think on this, the most important political decision in 300 years, the level of interest will be higher than normal and therefore anybody who is an interested party, an individual or organisation, will be able to engage, whether or not they are sought out by the Electoral Commission. I am sure they will have an open door to people making their suggestions and comments to them.

David Mundell: Indeed, I think this Committee would be in a position to make its views known, or certainly to provide the Electoral Commission with the various reports that you have previously produced on this issue.

Chair: I think we will follow up that invitation; thank you very much.

Q1702 Pamela Nash: Certainly. Before we move on, I would like to ask a couple of questions about the specific wording of the question and what the Scottish Government have said previous to the order being published and their consultation, as to which I understand you were not made privy to the early results. They suggested a question beginning "Do you agree", but they also mentioned that this was the case in the 1997 referendum. However, we, as a Committee, feel that that is a misrepresentation of the words because "Do you agree" in 1997 was one of two different statements, "Do you agree" or "Do you not agree". Can I ask if you agree with the Committee that this is a misrepresentation of the 1997 referendum and if you have any opinion on a similar style of referendum question being used this time, that is, with two different statements?

Michael Moore: I think, as politicians, we all have opinions, and like everybody else I felt that the "Do you agree" formulation would not be right. However, I think it is important. Because we are politicians, we take particular views based on what outcome we want, and what we need is a question that does not favour one outcome over the other. There has been a mass of academic response to the proposed wording. The consultation is there. The key to this again will be the Electoral Commission’s thoroughness. They will test what impression or view people take of what they are being asked, if that formulation is there. But, of course, what we do not know is whether that is actually the question that will be put forward. The Commission will, I am sure, look at it rigorously. For my part, I am happy to say, as a politician, I would look to accept their advice on this and I hope that will be the case for the Scottish Government too.

Q1703 Pamela Nash: Minister, have you anything to add?

David Mundell: No, I do agree with the Committee that it is a misrepresentation of the 1997 referendum. I am sure that the Electoral Commission will look very rigorously at the question’s possible wording. We saw with the proposed AV referendum that they came forward with a recommendation and that that was accepted. They are very well versed in this field and I would have confidence in the question that they came forward with. I would hope that the Scottish Government would not see any reason not to go ahead with the question that they propose.

Q1704 Chair: The point about what is presumably a deliberate misrepresentation by the Scottish Government of that 1997 referendum, "Do you agree", is an indication that these people cannot always be trusted to put things forward honestly. There is a clear, deliberate misrepresentation of the position to compare the "Do you agree" and "Do you not agree" in 1997 with the proposal that they have now. It is in that context that I want to ask you about your approach toward PPERA because it seems to be that you are saying the general approach of PPERA should be adopted, yet you are not specifically saying that that is what should be adopted. Again, it is coming back to a question of trust. There is a certain lack of trust about the SNP’s willingness to abide by fair rules. How do you know that they will actually follow PPERA if that is not specified in legislation?

Michael Moore: The Deputy First Minister has been at pains to set out that she wants to see a process that is held to the highest international standards, conscious that the world will be watching as they move forward with their proposals to the Scottish Parliament. They have signed up in a pretty serious degree of detail here to the PPERA framework, which is familiar to all of us and in which we can have confidence, but the onus is on them now to deliver on the basis of that agreement and to honour the spirit of it, which they will now be responsible for taking forward.

Q1705 Chair: Do you think you have been gullible in trusting them to apply this fairly without having legislative backing?

Michael Moore: I believe it is important that this is made in Scotland, that the Scottish Parliament is central to the legislative process.

Q1706 Chair: When you say "made in Scotland", you are part of Scotland as well, as am I.

Michael Moore: Indeed. We are all playing our part in this, but what I mean is that we have created a Scottish Parliament with powers over important aspects of everyday life in Scotland on this particular issue, respecting that the majority of parliamentarians were elected to Parliament on the basis of a manifesto permitting them to hold a referendum on independence. What we are doing here is empowering them to have that referendum on the back of their electoral pledge. That is making us all good democrats.

Q1707 Chair: I understand all of that, in general terms.

Michael Moore: By saying that this is "made in Scotland", I am not seeking to rule you, me or anyone else out of the script. Far from it. We have a big important role to play in the political debates that surround this. We work with the Scottish Government day in, day out. We have a memorandum of understanding with them. We work in a way that is based on trust. We will continue to do that, but there will be some political debates, challenges, backwards and forwards, and people will be concerned about those, of course. That is why-I apologise I was not able to be here to make the statement myself and I am grateful to David for doing it-on the day, there were a number of questions that came from both sides of the House about all of this. That is part of the debate. That has been echoed in the Scottish Parliament, in the Scottish media and in the meetings I am having with constituents and people around Scotland. There is a lot of expectation now placed on the Scottish Government. We have seen them have a very difficult 10 days where they have worked through an issue, not as straightforwardly perhaps-he says euphemistically-as they might have done. That increases the scrutiny that will be applied here. I think we have the framework, however, that will make sure we get the right type of referendum.

Q1708 Lindsay Roy: There was a mention of PPERA with particular Scottish circumstances. What are they?

Michael Moore: That recognises the fact that in Scotland the Electoral Management Board has been set up to oversee the running of the actual poll process. I think we all accept that that has been a good way forward. The Scottish Government have also said that they will nominate as the Chief Counting Officer the convenor of the Electoral Management Board, so it is in those particular areas that we recognise that there are different arrangements in Scotland that have the confidence of people in Scotland and so we should use them, not reinvent the process.

Q1709 Lindsay Roy: How will the high standards alluded to in the memorandum of understanding be monitored and by whom?

Michael Moore: They will be monitored by all of us, if I may say so, and by public opinion across Scotland. We care very strongly, all of us, as Scottish MPs and those from other parts of the UK, about this process; of course we do. That is why we are so intently focused on it. But I think people across the country also care about it. There is going to be a lot of attention focused on this. When you then drill down to official bodies, it goes back to the Electoral Commission and Parliament itself. I believe that, as David has said, it has established itself as a Parliament that will scrutinise and have robust debate and I anticipate that with this as well.

Q1710 Lindsay Roy: There has been a great deal of discussion about spending limits in the referendum campaign. Can you explain what the draft order stipulates?

Michael Moore: The agreement, the memorandum here, essentially highlights the role of the Electoral Commission in advising on those limits. What the Scottish Government have acknowledged is that, since they put forward their proposals back in the spring, there are two campaigns in place now, the Yes campaign and the Better Together campaign, so they need to be consulted, and the Electoral Commission, which offered evidence to their consultation and published it, will also be brought into the process, as it would be elsewhere. This is another example of an area where, historically, UK Governments of different hues have followed the advice from the Electoral Commission.

Q1711 Lindsay Roy: There is very much talk about a level playing field. How can the Electoral Commission, in regulating for a level playing field, do so when the regulated period is only 16 weeks?

Michael Moore: That is an extension over what it would normally be elsewhere. Bear in mind that there are other bits of PPERA that apply to the donations to political parties which continue throughout the period. The campaigns have, I believe, made public statements about their desire to see transparency over donations and the like, but, in the formal period, which has been extended under these proposals to 16 weeks, the Electoral Commission will police that in the same way that they would-

Q1712 Lindsay Roy: What is to prevent differential spending prior to that 16 weeks?

Michael Moore: That is a feature of all referendum campaigns. There is no formal bar to that, but I think the evidence on the ground shows that both campaigns are already getting on with their job very vigorously.

Q1713 Chair: So, in that case, it has been agreed that there should be no control over spending outwith the regulated period?

Michael Moore: The regulated period is the period where the Electoral Commission has its formal role. Otherwise, it is the normal rules that apply to party campaigning in terms of the funding of political parties.

Q1714 Chair: In terms of the amount of spending, there are no rules. Is that correct?

Michael Moore: In the meantime, there are no limits placed on what either side might wish to spend.

Q1715 Chair: Was it discussed whether or not there should be limits?

Michael Moore: We discussed the proposal from the Scottish Government, which was to extend what would normally be a regulated period of 12 weeks to 16 weeks. So we accepted that. We did not discuss extending it forward to the present day, for instance.

Chair: We have a Division. Shall we adjourn for the moment?


Sitting suspended for a Division in the House.


On resuming-

Q1716 Chair: You were not in full flow in the middle of a particular sentence. I think I waited till the end of a paragraph.

Michael Moore: You were generous, yes. A whole chapter, I think, had spewed forth.

Chair: That is possibly true.

Q1717 Pamela Nash: The Scottish Government, in my opinion, have taken the view that there should not be public funding for any of the campaigns around the referendum. Is that something that, in negotiations, you agreed with the Scottish Government?

Michael Moore: We did. We understood that it was their public money that we would be talking about, so, to that extent, we could not necessarily instruct them to do it. If you consider what the provision of public money has been for in the past, it is basically to set the campaigns up. It has not been for the campaigns to be run. It has been a matter for them to raise the finance for that, which we have already discussed. They took the view-and I think it is a fair point-that the campaigns were both already up and running and, considering what other public money is being spent on now, this would not be the right way to spend it. I thought that was a reasonable position to have.

Q1718 Pamela Nash: For the record, can you make it clear why it would be Scottish Government funding solely that would potentially be used if it was campaign funds?

Michael Moore: Anything that the Scottish Parliament legislates for has to be funded by the grant and other revenue that the Scottish Parliament Government has at its disposal. If you look at the issue of the mailshot, in all elections we have a provision for a free mailshot for the candidates or, in a referendum, for the designated campaigns. In the order, we are ensuring that power is there but we are also explicitly clear that it is the Scottish Ministers who have to pay for that. That will come out of the Scottish Government’s budget.

Q1719 Jim McGovern: Could I go back a wee bit in terms of the franchise and who will be allowed to vote? There is a byelection coming up in Corby and I am sure that everyone here will be aware that there is a very large Scottish population there. At the last census, apparently 10% of the population of Corby were Scottish-born. Does the Secretary of State have a view on whether Scots who do not live in Scotland should have a vote? For example, Sir Alex Ferguson, one of the most famous Scots, as things stand at the moment will not be allowed to vote in the referendum.

Michael Moore: When we issued a consultation back in January, we addressed this issue and said that we believed that the Scottish Parliament franchise would be the appropriate one, that that would follow from the fact that it was the Scottish Parliament elections that were won and the mandate was secured through that. It was entirely consistent to follow that for this referendum on the back of that election victory. That, it seems to me, is the important starting point. It then is about the fact that, in any case, around the world, if a part of any existing country wishes to secede, go its own way, it is the people in that part who have the vote, selfdetermination. It is two years away. Anybody who wishes to come up to Scotland to have an influence over that has time perhaps to do something about it. But I do not think you can escape from those fairly straightforward principles.

Q1720 Chair: Can I follow that up? One of the reasons for the date of the referendum being 2014-apart from Bannockburn-was the suggestion that Scotland would be in the middle of a triumph at the World cup, but under the SNP leadership it looks as if Scotland will not qualify. Do you know how many of the Scottish football team will be eligible to vote in the referendum at all?

Michael Moore: It will depend on where they are living at the time of the referendum.

Q1721 Chair: Was that mentioned in discussions and dialogue at all?

Michael Moore: I hope the Deputy First Minister would not object to me saying no, we did not discuss the issue of the Scottish football team voting in the course of our discussions.

Q1722 Pamela Nash: Following up on that, was the Scottish armed forces’ eligibility to vote discussed?

Michael Moore: It has been discussed. David was dealing with that when he was meeting with Bruce Crawford.

David Mundell: The current position is that there are rules in relation to armed forces being able to vote and a register in relation to armed forces. There are still some issues in relation to members of armed forces who are Scottish who may be stationed and resident in England, because their status would be different from members of the armed forces who were stationed overseas. But it was an issue that your colleague Frank Roy raised at the time of the statement. Subsequently, I have undertaken with him to look at that further.

Q1723 Chair: The present position then is that members of the British armed forces who would have the opportunity to transfer possibly to the Scottish Navy, Air Force and Army and perhaps fight and die for their country would not be eligible to vote in the referendum unless there was a change to the rules. Is that correct?

David Mundell: It is certainly the case that not all members of the armed forces who would regard themselves as Scottish would be able to vote under the current rules.

Q1724 Chair: Secretary of State, you did mention that there were two years before the referendum and that people could do things about that. What sort of things could they do?

Michael Moore: All I am saying is that the residency test is the key to this and, if people are going to be moving to or from Scotland, that will affect whether or not they can get the vote. The critical thing is that it is people based in Scotland who will get the vote.

Q1725 Chair: But people who are living in Spain, who had a Scottish address, are able to vote for up to, is it, 15 years beyond, but people living in England-

Michael Moore: That is for Westminster elections, not for the Scottish Parliament franchise.

Q1726 Chair: Fine. So all the eastern Europeans who are in Scotland at the moment would be eligible to vote if they are registered.

Michael Moore: That is correct.

Q1727 Chair: But Scots in the armed forces would not.

Michael Moore: Depending, as David made clear, where they are based and where their home base is-

Q1728 Chair: That is something that presumably the Scottish Parliament, if it has the wish to deal with it, can do.

Michael Moore: They cannot change the electoral franchise in that respect in terms of who is eligible, I am pretty sure.

Q1729 Chair: If they can change the age to 16 and 17yearolds, presumably there are all sorts of things they can do.

Michael Moore: The Scottish Parliament is entitled to set the franchise. The Scottish Government have indicated they want to go with the Scottish Parliament franchise as we have enunciated, but that is a debate that could be taken to them, I am sure.

Q1730 Pamela Nash: Chair, I am still not clear on that. Does the Scottish Parliament now have the power, as a result of this order, if it is passed by our Parliament and theirs, to give Scottish members of the armed forces based in England the vote?

Michael Moore: Just so I can clarify again and get this technically correct, they can apply for a vote at their home base through special service registration under the rules that exist. Hence, if you are based in Catterick rather than in Paisley you will not get the vote, whether or not you regard yourself as Scottish. That is clearly an issue for some people who would want to be regarded as Scottish for these purposes.

Q1731 Pamela Nash: I understand that. That is why I am concerned. If we wanted to change that and to ensure that Scottish armed forces based in England had the right to vote in this referendum, if this order is passed would that be a matter for the UK Parliament or the Scottish Parliament?

Michael Moore: If I may say so, you would be opening up the broader issue that Mr McGovern raised earlier about what the basis of the franchise is, whether it is distinguished Scots like Sir Alex Ferguson who live in other parts of the UK or armed forces personnel who, regardless of whether they are posted abroad or otherwise, might work at the Ministry of Defence or may have been seconded over time and rebased themselves south of the border. We agreed with the Scottish Government that the Scottish Parliament franchise should be the basis on which they proceeded. That is the intent.

Q1732 Chair: Clearly, there is a difference surely between Sir Alex Ferguson, who is a good boy from Govan, and members of the armed services, because the members of the armed services can be transferred by the MOD, whereas, presumably, Sir Alex Ferguson chose to go to Manchester. People in the armed services do not necessarily have the right to decide where they are based and, of course, members of the armed services might very well be given the right to serve in the Scottish armed forces, whereas there is no guarantee that Sir Alex Ferguson will be given the opportunity to serve in the Scottish football team in any capacity at all. So there is a clear distinction there, surely, between members of the armed forces and others.

Michael Moore: There are a range of things. One can be a football manager of a club in one part of the country and live in another. Perhaps it is a stretch to imagine you could do that from Glasgow to Manchester and commute. Nobody is seriously suggesting that that can be done, but choosing an occupation where you can, from time to time, be based in some other part of the country does change your rights. I do not think there is any question of that. What I would be very happy to do for you and the Committee, to get the technical detail of this right, is write to you to specify what happens for people who are, for instance, to use the previous example, based in Catterick but have come from, say, Paisley, and whether they can use special voter registration procedures available to the armed forces still to vote in Paisley. But I do not have chapter and verse about that in front of me.

Q1733 Chair: Did the Scottish Government raise the issue of the armed forces at any stage during the negotiations?

Michael Moore: We did not discuss this, particularly as a subset of the broader point, which was that the Scottish Parliament franchise should be the one that applied.

Q1734 Chair: That is right. The point I am making, though, is that they did not seek to raise this.

Michael Moore: We did not have the detailed kind of discussion that you and I have had just now.

Q1735 Jim McGovern: Possibly to close that point, it was put to me at the weekend, Secretary of State, that, if Sir Sean Connery chooses to maintain a flat in Edinburgh and use his name for the electoral register, he would get a vote, but Sir Alex Ferguson, because he lives in Manchester, will not.

Michael Moore: You are inviting me to speculate on the property owning of two very prominent Scots who might or might not have different views on the future of Scotland. These are personal decisions for the individuals concerned and they will determine how that proceeds.

Q1736 Chair: Can I ask about the draft order providing for the, I think, 28day period of purdah for Ministers and public bodies? Are there any restraints upon the use of Government money and staff for propaganda purposes by the Scottish Government from now on?

Michael Moore: The normal rules applying to accounting officers and how they use public money apply throughout, so it is for civil servants and-

Q1737 Chair: So that is a no then.

Michael Moore: There are no additional restrictions.

Q1738 Chair: But there are additional restrictions for that 28day period.

Michael Moore: That is entirely consistent with other referendums.

Alun Evans: The restrictions are the same as they would be for a general election campaign on the use of Government money or civil servants.

Q1739 Pamela Nash: Before you finish, I would still like to clarify the issues around the armed forces. Minister, you said that, following your statement to the House and the fact that questions were raised on this, you are now looking at it again. Could you give us a bit more information on that?

David Mundell: We asked for, and I think the Secretary of State indicated that he would provide it to the Committee, a detailed briefing on the exact rules and whether there was anything that could be done in terms of the rules as they currently exist.

Q1740 Pamela Nash: Might it be the position of the UK Government now that they would like Scottish armed forces based elsewhere in the UK who are of Scottish origin to get the vote?

David Mundell: I think, obviously, the intention in recent times has been to ensure that members of the armed forces get to vote in elections. Members of armed forces from Scotland would obviously want to vote within the referendum, but, clearly, in drawing up the rules which currently exist, the separate nature of the Scottish referendum was not within the contemplation at that time. So what we need to do is to look at the rules as they are set out. The Secretary of State will share them with this Committee and will look to see what can be done within the rules as they are set out.

Q1741 Pamela Nash: I understand that the rules preceded thoughts about this particular referendum, which is why I am quite surprised that this was not discussed when you were having discussions with the Scottish Government in drawing up this order and memorandum of understanding, particularly when it came up in this Committee and in the media several times and was part of major discussions for the last few months, in fact the last year, when people were talking about this referendum. This has not just come up today or when the statement was made to the House. This has been a longterm discussion.

Michael Moore: What we undertake for the Committee is to make sure that we give you chapter and verse on the arrangements as they apply and which we would expect would apply consistently through the adoption of the Scottish Parliament franchise as it exists at present and make sure that people in the armed forces understand what that means for them and their entitlement to vote.

Q1742 Pamela Nash: That detail would be very much appreciated, but I think the armed forces would also like to know that there is someone fighting for them to get this vote in the Scottish referendum.

Michael Moore: It is an issue clearly that will also be debated in the context of the Scottish Parliament’s consideration of the referendum.

Q1743 Chair: Can I be clear about that? The Scottish Parliament has the power to change the rules for 16 and 17yearolds. Does it also have the power to change the rules for the armed forces?

Michael Moore: I need to double check the specific arrangements that are made through UK electoral law as opposed to the devolved electoral aspects on that, but I will make sure that that is clarified for you.

Q1744 Chair: Fine, okay. The final point I want, before I make a brief closing statement, is just to come back, if I could, to this question of the Scottish Government’s consultation. We have been contacted since the session began by people who were watching the programme and we want to be absolutely clear that at no stage did the SNP appear to have or to refer to the results of their own consultation. Is that correct?

Michael Moore: I apologise, but I didn’t-

Q1745 Chair: The Scottish Government had their consultation. I want to be clear that at no stage in the negotiations did the Scottish Government representatives refer to the results of their consultation as supporting evidence for anything that they put forward.

Michael Moore: Correct.

Q1746 Chair: They did not refer to the consultation in any way, shape or form and the consultation did not form any part of the dialogue and discussion that took place.

Michael Moore: I gave the answers earlier. It is correct to say that they did not share with us the outcome of the consultation or discuss it with us in the course of our negotiations.

Q1747 Chair: But you do not know whether or not they had it and were just keeping quiet about it.

Michael Moore: I have no insight into the inner workings of the Scottish Government, how they handled this with their external advisers and assessors. What I do know is that within our own operation civil servants did all the work and we minimised the cost by ensuring that we kept-

Q1748 Chair: Was this drawn to the attention of your civil servants at all? In dialogue between the civil servants were the results of the consultation mentioned in any way, shape or form?

Alun Evans: The civil service team did not see any of the results of the consultation beforehand either.

Q1749 Chair: Was it referred to? Were you told anything of it? Was it mentioned?

Alun Evans: I can speak for myself. I cannot speak for all of my colleagues, but the fact that the consultation had happened, the fact that the results were due to be published late summer, whatever that meant, was discussed, but no specifics of what was actually going to be said in the consultation were given to us in advance.

Q1750 Chair: Goodness me, that really is amazing, isn’t it? Are there any final points that you want to mention to us?

Michael Moore: I am grateful for the opportunity to be here again this afternoon. The key thing for all of us is that we now have an agreement which will ensure that we have a legal, fair and decisive referendum on independence and independence alone and I look forward to the further discussions we will have with you on all the different issues that that debate now raises.

Chair: Right. Can I say, on behalf of the Committee, thank you very much for expounding in such great detail how the section 30 notice is intended to work? Obviously, we want to explore this in detail and we are probably likely to call some further witnesses about the issues that they might be concerned about, about how this operates. But we should not allow this to pass without remarking on what a remarkable change and transformation we have.

We have now managed to come to an agreement that will allow the Scottish people to make a major decision-the greatest for 300 years-about whether or not they wish to remain part of the United Kingdom. Our understandable anxiety, given particularly what has happened recently, is that this is handled fairly, that there are no attempts to rig the ballot and no false legal advice provided or anything else and that we maybe have one person, one vote. It is not one man, one vote, with the one man being the First Minister. We want to make sure that the rules are fair on all sides and we will continue to investigate and pursue that.

Could I thank you very much for coming along? I think we have let you out three minutes early.

Prepared 26th November 2012