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Lord Mackay of Ardbrecknish moved Amendment No. 45:

Page 2, line 32, leave out subsection (2) and insert--
("(2) The Secretaries of State, shall appoint an Independent Statutory Commission which shall monitor the conduct of the referendums provided for under this Act, and shall, in the light of the referendums, draw up recommendations for the conduct of future referendums, having regard to the 1996 Report of the Commission on the Conduct of Referendums, such recommendations to be laid before each House of Parliament.").

The noble Lord said: At Second Reading Members of the Committee will remember that I highlighted the need for a referendums Bill and then a referendums Act if, as

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the Government have promised, we are to have a number of referendums. I prayed in aid at a little length the report of the Commission on the Conduct of Referendums. I make no apology for doing so again today. Paragraph 40 of the report states:

    "The various Representation of the People Acts govern the way in which elections are run in the UK and, through the provision of a consistent framework, ensure that they are fair. There is no comparable statute for referendums, and the arrangements for elections cannot simply be applied without change".

We certainly know the truth of the last phrase,

    "[they] cannot simply be applied without change",

because late on Thursday evening I invited the Committee to consider an amendment which the Government accepted in principle. It will incorporate the two draft orders which accompany this Bill into primary legislation. I did so not only because I believe it is important that we discuss them as primary legislation, but also because--just in case some Members of the Committee missed the real significance--it should allow your Lordships and Members of the other place to rise for the Summer Recess at the end of July. If the Government had not had that "lifebelt", as I would describe it, thrown to them by me they would have had to keep Members of the Committee and of the other place going until about 7th August. I know that Members of the Committee are keen to stay here as long as they possibly can, but I must tell the House that those Members of the other place, especially Scottish MPs whose children have been on holiday now for a week and who go back to school in the middle of August, will not be pleased (at least, that is what they will tell their wives!) if they have to stay down here until almost the end of the school holidays.

I remember in the early 1980s that, for a number of reasons, the House sat well into August and how difficult it was for those of us with young children. Therefore, I very much hope that, having been helpful to the Government, I will hear no more statements from Downing Street or from the Secretary of State for Scotland about how obstructive the Opposition has been on this Bill. I believe by that one single stroke I have proved that I am being critical, but that I am not being obstructive.

My reason for introducing the draft orders and the schedules late on Thursday, apart from trying to help the members of the Committee with their August diary, was to highlight and underline how difficult it is to take the Representation of the People Act and amend it so that it applies to referendums. If the Committee has studied the draft it will see that it runs to many pages. It was on the Order Paper on Tuesday and Thursday of last week with the amendment to incorporate the draft as one of the schedules to the Bill.

I sat in the Library for some little time with the Representation of the People Act, following the changes that were being proposed by the Government in the orders. I hope that they got them all right because if they did not it may prove rather difficult to run the referendums . There may be small technical and logistical problems when it comes to running them. That is why I believe that it would be very much simpler to

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do as the commission suggests and have a proper referendums Act so that all these matters can be properly dealt with.

Perhaps I may return to the words of the commission. It said very clearly that,

    "Guidance should be drawn up dealing with organisational, administrative and procedural matters associated with holding a referendum. Established guidelines should include fixed rules for some matters (for example, the organisation of the poll, the election machinery and the count). For other matters, on which it is impossible to determine rules in advance (for example, wording of the question) the guidance should state how a decision should be reached".

That was the case I was arguing at Second Reading. I am not arguing that we should wait for a referendums Act before we have the Scottish and Welsh referendums. That would mean that I was attempting to delay the referendums until later. While I believe that there is a huge argument in favour of having the referendums after the necessary legislation is passed, I appreciate that the Government have a mandate to do it in this way, which I believe is wrong.

On the previous occasions in this country when we have had referendums, we have worked in the same kind of ad hoc way as we are doing in the present case, with amendments being made to the Representation of the People Act. Following the passage of the Referendum Act 1975, the noble Lord, Lord Allen of Abbeydale, was appointed chief counting officer with responsibility for a number of matters relating to the referendum. When it came to the Scotland and Wales Act the incorporation of these provisions was handled by the civil servants in a constitutional unit.

If we are to have a number of referendums--and we are certainly promised them--we ought to consider very seriously the need for an independent statutory commission and a referendums Act. The independent statutory commission would make sure that the referendums were properly run under the proposals in any referendums Act.

Paragraph 47 of the commission's report says,

    "There is now a strong case for giving responsibility for the conduct of referendums to an independent body. Public confidence in the neutrality of the conduct of a referendum is essential if the result is to be accepted as legitimate, particularly where the Government is pledged to support a specific outcome, or the interests of Members of Parliament are directly affected".

It is very obvious that in this case the Government have pledged to support a specific outcome.

The independent body would do a number of things. It would advise on the wording of the question; on allocating funds to campaign groups; it would liaise with and act as moderator between any campaign groups; it would act in an ombudsman's role to deal with any complaints; monitor balanced access to broadcasting media--I shall come back to that--provide public information including a balance statement of the opposing arguments--I shall come back to that in another amendment later on this afternoon--supervise the organisation for each polling station and the counting and declaration arrangements.

All these things require to be done--and would be better done--by an independent statutory commission backed by a referendums Act. As I have said, I

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appreciate that that cannot be done in this case, but we have an opportunity before us to set up a body, which I have called an independent statutory commission, in order to monitor the referendums that we are going to hold in September, or whenever it is. As I have said before, that still seems to be a state secret although it is to be hoped, as I believe it is the noble and learned Lord the Lord Advocate who is to reply to me on this occasion, that I might manage to squeeze from him the date for these referendums having signally failed to squeeze it from the noble Lords, Lord Sewel and Lord Williams of Mostyn. Perhaps the noble and learned Lord the Lord Advocate will be a good deal more forthcoming as befits his high office, independent of the Government in many of its aspects. I shall not hold my breath as regards that expectation, but I certainly express it. If the Lord Advocate wishes to tell us the date of the referendums we shall be very grateful. We can then put it in our diaries so that those of us who are fortunate enough to have a vote will be able to make sure that we are at the polling station that day.

As I have said, when we look at how the referendum works it would be useful to have a body which can study the problems that arise--and I imagine that there will be problems--such as the places where it might be better to run it in a slightly different way from the way in which we run elections under the Representation of the People Act. In such cases there are candidates who have election campaigns in their constituencies and so on. That is an entirely different situation from that where there are no candidates, but the electorate has to fill in some answers on a ballot paper. There is also the question of national campaigns, perhaps with local organisations, but nonetheless national campaigns. For example, the returning officer does not have in each constituency a candidate and election agent to turn to if a problem arises which he needs to discuss. All these matters deserve to be looked at.

Amendment No. 47, which is grouped with Amendment No. 45, also asks the independent statutory commission to report on the impartiality of broadcasting material during the campaign. I was happy to accept the assurance from the noble Lord, Lord Williams of Mostyn, late on Thursday evening that that campaign will last about six weeks, give or take a week or two, from the publication of the White Paper, which is the important basis on which people will have to make up their minds. Clearly, the rules to which we are accustomed in relation to broadcasting during general election campaigns are not exactly applicable in this case. I shall not go into any great detail now because I have a more detailed amendment later which relates specifically to broadcasting. I hope that the Government will then be forthcoming and give us their views on what they would expect the rules governing the broadcasters to be during the campaign and, indeed, on how long that campaign will last. Such matters are defined in statute for general elections and local government elections, so everybody knows when the campaign is up and running and when the election rules have to be obeyed.

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I hope that the Government will address the issue of establishing a statutory commission and a referendums Act. I do not recall that too much mention was made of the case that I presented at Second Reading--I am not complaining about that--but in summary perhaps I may remind the Government of guideline No. 3 in paragraph 67 of the commission's report. It states:

    "If a Government is planning a series of referendums"--

I understand that that is what this Government are doing--

    "it has the option of establishing a statutory framework for the conduct of referendums through the enactment of a generic Referendum Act. Such an Act would demonstrate the Government's commitment to the efficient, fair and consistent conduct of referendums. It would provide for the establishment of an independent 'Referendum Commission' and include fixed rules for some matters (for example the organisation of the poll and the count). For other matters, on which it is impossible to determine rules in advance (for example, the wording of the question) the Act should set out how a decision should be reached. Those matters which will be different in each referendum and are likely to be of Parliamentary concern could be dealt with through primary legislation on each occasion".

I know that I cannot have that in the referendums that we are about to have, but I believe that those referendums should provide a learning curve, if I may put it like that, for a general referendums Act and an independent commission. My proposal for an independent statutory commission to look at the way in which the referendums in September are to be conducted would, if implemented, be a major step towards having an independent commission responsible for the holding of all referendums and for a referendums Act. I very much hope that the Government will accept that I am not trying to do anything to disrupt the referendum that they propose to hold in September; instead I am looking at the broader picture of all the referendums that we are promised in the years to come. I beg to move.

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