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Lord Hardie: I deal first with the last point raised by the noble Lord, Lord Beloff. Noble Lords will appreciate that I do not speak for the Scottish National

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Party. I do not understand what position it will adopt when the referendum takes place. The issue is not one of favouring or otherwise particular political parties. The obligation on the broadcasters is to provide a balance of different points of view. To answer the noble Lord shortly, the whole question of transposing the rules of broadcasting from general elections to referendums has already been decided by the courts in Scotland. In 1979 during the previous referendum that issue was addressed in Wilson v. IBC. In that case the courts held that it was important to ensure that due impartiality was achieved and that due weight was given to each of the various people who supported or opposed the proposal. The noble Lord can be assured that the courts will preserve and enforce the independence of broadcasters but equally will ensure that they act with due impartiality.

As far as concerns the issue raised by the noble Lord, Lord Renton, I accept that Orders in Council are quite different from legislation. I also accept that on occasions Orders in Council can be in favour of one party. However, as the noble Lord may have failed to appreciate, the noble Lord, Lord Mackay of Ardbrecknish, alluded to that in his speech this afternoon. An amendment was accepted by the Government that Orders in Council would be incorporated into legislation. I can assure the noble Lord that there is no question of partiality, because my noble friend has already approached noble Members opposite to discuss with them the terms of the appropriate----

Lord Renton: With great respect to the noble and learned Lord, perhaps I did not make myself clear. There is a big difference between an Order in Council being incorporated in primary legislation and an Order in Council being the alternative to the report of an independent commission. They are different situations.

Lord Hardie: I should have thought that it would have been much stronger were it incorporated in private legislation, because it would be not only achieved following discussion with the party opposite, but it would be subject to the scrutiny of this place.

I turn now to the point raised by the noble Lord, Lord Campbell of Croy. The procedure to be adopted will be covered by the Act. I adopt the point raised by the noble Earl, Lord Russell, to the effect that if the Committee wishes an independent commission then this is not the appropriate time or place to be considering such a course. It is not necessary or relevant to the Bill, if as the noble Lord, Lord Mackay of Ardbrecknish, indicated, it is not designed to delay the Bill's passage, or, for that matter, to delay the referendum.

Lord Mackay of Ardbrecknish: I am grateful to those Members of the Committee who have spoken on the amendment and supported it. I am also grateful to the noble and learned Lord the Lord Advocate for his response. Of course I appreciate the difficulty of setting up a commission, as I propose, in the short time we have available. The noble Earl, Lord Russell, with whom I have crossed swords on a fair number of occasions, reminded me of certain things that I should avoid doing.

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I think that he was saying that I should avoid trying to encourage this place to sit between now and the September date to pass the legislation necessary to set up such a commission.

What I wanted to do, and I am pleased that I did it, although I rather wish that I had received a better response from the Government, was to raise the general question raised by the Commission on the Conduct of Referendums regarding setting up a statutory commission to look after referendums and doing it on the basis of a referendums Act. I do not want to detain the Committee. The noble and learned Lord the Lord Advocate was being a little general when he thought that we could scrutinise the draft orders now that they are incorporated into legislation. Indeed we could, but it would require a good deal of time spent in the Library. Of course the other place will have an opportunity to scrutinise the proposal when the Bill returns to it with the amendment that the Government have promised to bring forward.

I should give the Committee a flavour of what goes on with draft orders. I do it at random, I suppose. The amendment refers to Section 102 of the Representation of the People Act which relates to no payment for the conveyance of voters. It states:

    "For 'the election of a candidate' substitute 'a particular result at the poll'".

We go through section after section of the Representation of the People Act either amending them or saying that they do not apply or that they do apply. The Committee will therefore appreciate that it is not clear; it is reasonably well done if one sits with the Acts.

If we are to have a number of referendums, we should have an Act at which one could look to see how the systems will run and we should not have to do this toing and froing. I appreciate that that was the way that the 1975 referendum was done. Those of us who were around politics at the time, although not in either House, will remember that it was very much a novel idea. It was not thought to be something that was going to be part and parcel of our constitution. The same is true of the 1979 referendum.

The difference this time is that we have a government promising a number of referendums. That is why I believe that it would have been good if we could have had some information from the noble and learned Lord that the Government understood the point being made this afternoon; understood the point being made by the commission, and were prepared to say, "Yes, we will come forward with a referendums Bill which will do for referendums what the Representations of the People Act does for parliamentary and local government elections". In other words, this is not in any way a batty idea of one of the Members of the Opposition Front Bench in this place.

That is in fact the considered view of a commission set up by the Constitution Unit and the Electoral Reform Society, chaired by no less a person than Sir Patrick Nairne who was responsible for the work done to bring the 1975 referendum to the polling station. The deputy chairman was Dr. David Butler, someone we have all watched on television and read pontificating on

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elections and electoral matters. The commission had on it no less a person than the noble Lord, Lord Holme of Cheltenham. I had rather hoped that I might have recruited a Liberal or two to support the idea in principle, but I have long since learnt that to recruit a Liberal or two to say anything mildly critical of the Government is expecting latter-day miracles.

3.45 p.m.

Earl Russell: I do not think that the noble Lord is listening. I did say something sympathetic in principle, but not relevant to the Bill.

Lord Mackay of Ardbrecknish: I heard the noble Earl say that, and I am looking forward to him giving support to the Government for the various proposals on social security about which I was reading in the Sunday newspapers. That may be an interesting debate when it happens.

As I said, the noble Lord, Lord Holme of Cheltenham, was on the commission. The noble Baroness, Lady Gould of Potternewton, was on it. She is now a Government Whip so it was not even a conspiracy between the Liberal Democrats and the Conservative Party. Just to show that it was balanced, my honourable friend Mr. John Whittingdale MP was also on it. The people I have mentioned, and other equally impressive names who were on the commission, gave the matter a great deal of thought and came to that conclusion.

I was disappointed that the noble and learned Lord the Lord Advocate did not give us even a hint that the Government might, after the referendums are out of the way in September, return to the issue and look seriously at the proposition that we should have an Act and a commission for the proper conduct of future referendums.

We shall come to broadcasting in a minute, but just to give the noble and learned Lord the Lord Advocate a bit of notice, I thought that he said the proper balance in broadcasting should be from when we know the date until when the referendum takes place. Every indication is that in this case that will not be very long. In 1979, it was a whole three months. I am not entirely sure that we could have three months of operating the broadcasting rules on the basis of a referendum which is to come. That might be difficult. We will return to that point.

Perhaps I may help my noble Lord, Lord Beloff, and the noble and learned Lord the Lord Advocate who did not seem to know what position the SNP will adopt. He seemed to give the impression to my noble friend that he did not really care. That is not how I read the Scottish press. It seems to me that the Government care a great deal. They are absolutely desperate to recruit the SNP in the "Yes, yes" campaign. Perhaps I should call it the "Yes, yes chorus". I think that we will find later this afternoon that the last thing they want to give the SNP is the option to show how many or how few of my fellow Scots want independence. The reason is simple. The Government know that they need to bolster the numbers wanting devolution with the numbers wanting independence. As I told the Government at an earlier stage, it will mean that in future the Scottish National Party will be able to say, "You would not have won this referendum if it had not

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been for the votes of those who want independence". If that is a recipe for stability in our constitution, then it is Tuesday today!

I believe that the Government should think seriously about that problem when we deal with it later. I hope that I have helped the noble and learned Lord the Lord Advocate by telling him what his party is doing in the political sense as opposed to the legal sense in which he operates. With a certain disappointment that we have not had a more sympathetic response to the general proposition, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 46 not moved.]

Clause 3 agreed to.

[Amendment No. 47 not moved.]

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