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Baroness Seccombe: My Lords, I thank the noble Lord for giving way. I think it was guillotined at a much later stage.
Lord Desai: My Lords, I hear voices in my right ear that that was not the case. But I say this to the noble Baroness. Not only was the Single European Act much more fundamental. But in her concluding remarks she said that the Labour Party might regret the Bill. Whether or not that turns out to be the case, I shall say one thing. Her party regrets passing that Act.
This is a small, technical Bill. It is a first step which opens a process. Noble Lords opposite have said that in 1978 only one in three voters voted in favour. What has happened since to change so much the situation in Scotland and Wales that we expect not only a yes vote but a large turnout? I shall tell the House what has happened. The party opposite's Government has happened. The poll tax disaster in Scotland will never be forgotten. Not only that, but when the English poll
tax voters were given a subsidy, an on-the-spot correction had to be made to remind the Minister in charge that he had entirely forgotten Scotland.I have no stake in the system. I cannot claim a grandparent or any ancestor English, Welsh or Scottish. I am neutral in this respect. One of the longest Acts debated by this Parliament was the Government of India Act 1935. It set up a federal system, which is a very good system. But we are not discussing a federation. Here I take issue with the noble Lord, Lord Steel, and others on the Liberal Democrat Benches. The German case is irrelevant because we are not setting up a federation. I do not believe that it would be possible to do so with a population which is so unequal between the four areas. We are discussing devolution. In that respect we are saying that, given what we already know from the election results, one can presume--I am perfectly willing to take a bet with anyone on the opposite side of the House who disagrees with me--that the referendum will result in a yes vote in Scotland.
Baroness Carnegy of Lour: My Lords, does the noble Lord appreciate that one of the main reasons for anxiety about the position in Scotland and the longing for a Scottish parliament is that people say that they never got the kind of government that they voted for? I am informed that now, when people have the kind of government they voted for, they are becoming a bit cool on the Scottish problem.
Lord Desai: My Lords, let us test that proposition. If the noble Baroness is right, I am sure that she will celebrate. I presume that people do not change their minds that quickly. I have read a lot about the Scottish convention. I believe that the process was deep and wide ranging. It is not going to be abandoned that easily. I will not take a bet on the Welsh vote; I shall hedge my bets on that. I shall give a cautious prediction that there too the vote will be yes. I do not believe that anyone so far has said that the votes will be "yes, yes" or "no, yes". That would be disastrous. I believe that there will be a "yes, yes" vote throughout.
One of the problems of an unwritten constitution is not that it is unwritten, because a large part of it is written, but that it does not have a precise system for changing the constitution. There is an advantage here. When we come to contemplate any particular change in the constitution we can be flexible. Therefore, in my view it is quite right to adopt the idea that for this particular constitutional change we should take a simple majority of all those voting for the very sound reasons put forward by my noble friend Lady Ramsay.
I do not believe that we should presume that those who do not vote are against. When opinion polls are taken the "don't knows" are proportionately divided between yes and no. It is a common statistical practice. There is no basis for saying that everyone who says "don't know" will say no. If people care enough to stop something they should go down to the polling booth and vote no rather than be rewarded for their laziness. It is perfectly fair to say that we should have a simple majority, because that is not the end of the process. Given our constitution, all referendums are consultative
by definition. Parliament has to ratify the decision and pass the Bill and only then will the referendum decision be validated.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble Lord for giving way. We normally debate economic matters and this is a change for both of us. If I heard him right--leaving this referendum aside for the moment and talking about referendums in general--it is conceivable that Parliament might decide to ignore the result of the referendum. Does he not believe that that is likely to cause a great deal more trouble than setting down, as the Commission on the Conduct of Referendums suggested we should, some kind of ground rules for deciding on a majority rather than leaving it to Parliament after the event perhaps to overturn the referendum?
Lord Desai: My Lords, I believe that we have only one constitutional doctrine; namely, the sovereignty of the Crown in Parliament. This Bill is not proposing such a fundamental change that we will have another rule just for Scotland no matter what happens. For the sake of argument I assert that in this case, as it is laid down, a simple majority should suffice because after the referendum we shall have to debate the Bill through Parliament. It is only when it is passed that we shall have a parliament in Scotland and an assembly in Wales.
Like my noble friend Lord Prys-Davies, I wish to mention one or two things which should appear in the White Paper. This is my only chance to do so because we shall debate the White Paper after it appears. This is the only pre-White Paper debate that we shall have.
I should like to make two points. The first relates to the second question in Schedule 1, which covers taxation. Everybody is presuming that the Scottish parliament may increase taxes, but it could also cut taxes, which may raise problems with regard to the Barnett formula. That is a non-statutory formula, which is usually adhered to, given the rules of the game. Once we have set up a separate parliament, we shall have to give the Barnett formula statutory form. Indeed, that should be done because the Barnett formula is a very good formula--but perhaps to make noble Lords opposite happier I should call it the Goschen-Barnett formula because it goes back more than 100 years. That formula should be codified and one should perhaps establish prudent financial rules. Perhaps such a change should already have been made in the UK, given the way in which the previous government behaved. One should not cut taxes while deficits are high. There should be sound financial rules.
With regard to clarification, we should seek carefully to embody what my right honourable friend the Prime Minister--he was then the Leader of the Opposition--said about where sovereignty lies. I believe that the White Paper should state explicitly that it lies with the powers of the Westminster Parliament. Section 75 of the Government of Ireland Act 1920 provides a very good formulation which I urge upon my noble friend. I thought that I would just throw in that rather obscure reference to match the popular reference given by the
noble Viscount, Lord St. Davids. Apart from that, this is a good example of the rapid enactment of a manifesto promise and I therefore welcome it.9.22 p.m.
The Earl of Northesk: My Lords, the noble Lord, Lord Desai, has just told us that this is a small, technical Bill. It runs to only six clauses and two schedules. We are told that it is a simple matter of the Government honouring their manifesto commitment to consult the peoples of Scotland and of Wales. I reassure noble Lords opposite that I am entirely comfortable with those propositions. I have no objection at all to the principle of the people being consulted. I welcome that. Indeed, I welcome the Government's tacit admission that devolution is a matter of such momentous importance that the mandate afforded by the majority gained at the election needs to be buttressed by further consultation of public opinion.
Why, therefore, does the Bill make me feel uneasy? Inevitably, part of the answer lies in what we know about the Government's proposals for devolution. As we are all too painfully aware and as has been manifest from today's debate--I suspect that the Government are facing their own quandaries here--those proposals are littered with a whole raft of unanswered questions. No doubt we can anticipate many happy hours agonising over them in due course. But--and I hope that noble Lords opposite will be pleased to hear this--I can accept that they are not necessarily of particular relevance to the Bill before us.
Like other noble Lords who have already spoken, I believe that there are certainly two, and possibly three, substantive issues which this Bill fails to address adequately. They are whether pre or post-legislative referendums are the most appropriate means of achieving the desirable objective of public consultation; whether the respective electorates for the referendums are adequately defined; and whether the outcomes should be subject to some form of threshold criteria.
Of course, the arguments relating to these issues have already been well rehearsed; but, be that as it may, I make no apology for any repetition to which I may fall prey. Whatever noble Lords may feel, these remain matters of fundamental importance. I shall limit myself to consideration of the first two only. As to the first, it is all very well to consult about a broad principle, but how can people come to a considered and rational opinion without knowing the substance of that principle? Transport analogies are somewhat in vogue at the moment--perhaps due to the influence of the Deputy Prime Minister. I was initially tempted down the route of steamrollers or even rollercoasters--both in their own ways appropriate. Instead, I plumped for the thought that the Government are in effect asking the whole of the United Kingdom to purchase a car without affording it the opportunity to inspect it or look under the bonnet. Bluntly, whatever the bodywork from a distance, be it a Rolls-Royce or a beat-up Land-Rover, one cannot make an informed judgment as to the desirability of purchase without reference to the interior trim and engine. Nor does the offer of the referendums being determined in the light of the Government's
respective White Papers help. Regardless of the Government's majority in another place, these are simply the dealers' option packages. Under no circumstances do they necessarily represent the vehicles that will or will not be driven out of the showroom.I simply pose the following question: should the peoples of Scotland and Wales trust the used car salesman ethos upon which the Bill is based? (I hasten to add that I mean no disrespect to that honourable and noble profession.) An observation of the Commission on the Conduct of Referendums is pertinent here:
- "A referendum cannot, however, settle issues once and for all. At best it can offer a considered measure of the electorate's views at the time it is held ... The sovereignty of Parliament means that the power to legislate against a referendum, however overwhelming, remains, at least in constitutional theory, with Westminster".
Listening to the noble Lord, Lord Sewel, in introducing the debate I am none the wiser as to the Government's view on this matter. But the important point is that the passage I have cited infers that greater credibility particularly in terms of consent can be attached to post-legislative referendums.
As to the second issue, viewed from the consultative/consentient divide, my mind strays to Her Majesty's most gracious Speech and almost the very first words spoken in this Parliament; namely, that the Government intend to govern for the benefit of the whole nation. The Union exists. On that basis the English and the Irish have just as much right to be consulted as the Scots and Welsh. Failure so to do renders this implicit promise somewhat hollow. I accept of course that any referendum of the English or Irish should not determine whether devolution in Scotland and Wales will proceed and that such referendums should be consultative. Rather, in line with the nature of a pre-legislative exercise, such referendums would do an enormous amount to inform debate on any future legislation.
More than that, one should not be blind to the simple fact that the whole nation has a vested interest in the outcomes of the referendums. The financial implications of devolution, particularly in Scotland, are such that it is extremely difficult to sustain any argument that the English nation should not be consulted. Accordingly, in a pre-legislative scenario what is important above all else is that the proposed changes to the structure of the Union should be subjected to, if not the consent, then the opinion of all the peoples of the Union, thereby fulfilling this Government's avowed aims of democratisation. If the Government wish to remain true to their pronouncements on this there is no alternative to a nationwide referendum. The Bill as it stands, if it is based on a consultative purpose, is at once both hubristic and arrogant.
Inevitably, we have been regaled by noble Lords opposite with protestations that the Bill is merely a matter of the Government fulfilling their manifesto commitment. I have no problem with that mantra.
I acknowledge the Government's mandate. But, pursuing the train of thought of my noble friend Lord Beloff, we can be a little disquieted that there may be a sense in which a soundbite is being used here and, indeed, more generally, as a substitute for reasoned debate and policy substance.Philip Norton, Professor of Government at Hull University, writing recently in the House Magazine expressed it thus:
- "Manifestos establish goals. They state the principle rather than the detail".
- "A government that believes in its measures should welcome rather than fear parliamentary scrutiny. Running away from parliamentary scrutiny and hiding behind a party majority, is a sign of a weak rather than a strong government; and the weaker the scrutiny, the greater the harm in the long term to support for the political system".
The cynic in me is tempted to suppose that the Government's approach to the Bill--the persistent avowal of their mandate, the guillotine Motion in another place--serves to limit and deflect proper and adequate scrutiny. In a sense, of course, that brings me full circle back to my reasons for being uncomfortable about pre-legislative referendums. Certainly I have yet to hear any reasoned defence of the substantive issues in today's debate so far, especially the distinction between the use of referendums as mechanisms of consultation or of consent. I therefore hope and trust that that will be forthcoming when the noble Lord, Lord Williams of Mostyn, winds up the debate.
9.31 p.m.
Earl Russell: My Lords, the noble Earl, Lord Northesk, is mistaken when he describes the majority in favour of devolution as a party majority. In saying that, I do not refer only to my own Benches, crowded though we are; I recall, for example, the speech of the noble Lord, Lord Alport, in the debate on the humble Address. This is a body of opinion that stretches a long way beyond the boundaries of any one party. Indeed it has, even quite recently, taken in large parts of the Conservative Party.
The noble Lord, Lord Desai, as always, was entertaining and thought-provoking. He is of course right, that what we are proposing here is not a federation; but relevance, as he knows well, is a relative and not an absolute concept. So when my noble friend Lord Steel, in a delightful and distinguished maiden speech, referred to Germany, the relevance is to the English idea that the unitary sovereign state is the only form of state. To that point, my noble friend's point was entirely relevant.
Hans-Dietrich Genscher, talking to my late noble friend Lady Seear, once said:
- "You British are a generous people. You created the best constitution and the best system of labour relations in Europe. You gave it to us, and you didn't keep it for yourselves".
I do not believe that this is a major constitutional Bill. The devolution Bill itself, when we get it, undoubtedly will be such a Bill. All this Bill does is authorise us to allow the people to vote, which is not a particularly
dramatic thing to do. That makes the issue of the publication of the Bill, or indeed of the White Paper, rather less dramatic than perhaps it sounded during the day.By the time people vote, they will know what it is they are voting on. I believe that people usually find White Papers easier to read than Acts of Parliament. By the time we here vote, we will know what we are voting on. So the delay in the Bill and the White Paper is not of desperate seriousness, especially since, as my noble friend Lord Steel of Aikwood pointed out, in relation to Scotland the proposals rest securely on the Scottish Constitutional Convention whose proposals have been clearly known, though, I admit, in England not quite as widely known as they should have been, for quite some time.
In general, I could not help feeling that there was a slight note of, shall I say, captiousness in some of the objections to the Bill. For example, the noble Lord, Lord Crickhowell, was distressed that people would be asked to vote in a referendum immediately after returning from holiday. Let us suppose that the noble Lord, Lord Williams of Mostyn, was to say at the end of the evening that he was persuaded by the point and that he was shifting the referendum to February. Might the noble Lord, Lord Crickhowell, then suggest that that was a difficult time because of the risk of snow drifts in the Welsh and Scottish mountains?
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