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Lord Mackay of Ardbrecknish: I am grateful to the Government for seeing the point that we are making in Amendment No. 67 and in making it clear, as I think they did, that they intend to bring in an order. But I am in agreement with the noble Lord, Lord Thomas of Gresford. If he, as a lawyer, cannot read through Clause 11 and see that this issue could be dealt with under Clause 11, what hope is there for the rest of us? This is an important issue. It relates to who may be elected in a by-election. It is not exactly a small matter such as the size of the print on the ballot paper or other matters that can easily be dealt with in regulations. I believe this is quite an important issue.

The Earl of Balfour: In respect of the amendment which is tabled in my name, I must point out that the same provision was included in Clause 9 of the Welsh Bill. In respect of Clause 11, even in the Government of Wales Bill, it has exactly the same title:

I accept that the wording of Clause 11 is rather wider in the Wales Bill than in the Scotland Bill. I did not necessarily mean to interrupt my noble friend Lord Mackay, but perhaps the Minister will take the matter away and just think about it between now and the Report stage. I believe that there may be a little more in this than I can read in the present Clause 11 of the Bill.

Lord Mackay of Ardbrecknish: My noble friend has made a fair point. I believe that the Minister has accepted the principle; indeed, there is no division on that point and I do not want to labour it. However, it is an important issue because by-elections are important. The Welsh Ministers obviously decided that it was important enough to have it made clear in the Government of Wales Bill. Therefore, why must we have in this Bill the words:

    "He must be a person who ... is included in that list, and is willing to serve"? Why could not the reference to "willing to serve" be left to order-making powers?

I can see that there is a grey area here as regards whether it should be covered by order-making provisions or included on the face of the Bill, but I actually think that the balance is probably more in favour of it being included in the legislation. Under Clause 11, the Government will still retain the ability to make an order changing the issue if it requires to be changed and if anything needs to be done in the future because of a change in circumstances. Therefore, although we are all pleased to hear the Minister's assurance, I am sure that he is getting the general message from the noble Lord, Lord Thomas.

Lord Sewel: Perhaps I may intervene in an effort to try to be helpful to the Committee. As has been pointed out, there is no difference between us in terms of principle or of policy. Without giving any assurances, I shall be happy to think about the matter. I shall be

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guided in what I recommend at a later stage in terms of whether or not I am convinced that there is a need to retain the slightly greater degree of flexibility that the order route gives, rather than putting such provision on the face of the Bill.

Lord Mackay of Ardbrecknish: I am sure we all fully accept that, even if our amendment were placed on the face of the Bill, the Government would still have to put forward a legitimate case for having powers under Clause 11 to make changes in the future. There is not much between us on the issue, especially as the Minister has promised to think it over during the long summer evenings. However, if the summer continues as it is at present, he will do so accompanied by the pitter patter of raindrops rather than enjoying pleasant summer evenings with the sun shining. In the circumstances, I beg leave to withdraw the amendment in the hope that, when we return in the autumn, the Minister will bring forward his own amendment which will achieve what we all desire.

Amendment, by leave, withdrawn.

[Amendments Nos. 67 to 69 not moved.]

On Question, Whether Clause 9 shall stand part of the Bill?

Lord Mackay of Ardbrecknish: I have a small point to raise here which really came to my mind during the intervention made earlier by the noble Earl, Lord Mar and Kellie. It is really a cross-over to the European parliamentary Bill. If a vacancy occurs in a party's list in what I suspect would be very unusual circumstances--because I should not have thought that a party is likely to get more than three or four people elected from the list, even if it was doing very well indeed on the list vote and not so well on first-past-the-post--it is unlikely that the returning officer in the case of by-elections will ever come to the twelfth name and, so to speak, drop off the end because there is no "next person" to fill a vacancy.

However, if I understood the Minister's reply correctly, and in fact the Bill makes no provision in that respect, there will be no by-election. It is perhaps to the disadvantage of Members of the Committee that I am also involved with the European Parliamentary Elections Bill where, in such circumstances, there is provision for a by-election. I know that I have not tabled an amendment in this respect, but I shall be quite happy to receive a letter from the Minister on the matter. I can envisage the Minister saying to me that, while there are first-past-the-post seats, it is not such a big problem because all the European parliamentary seats are off the list. But there will still be one member of the parliament short and the proportionality which is desired will not be achieved. I think there may be some merit in considering a by-election provision in those circumstances, as is done in the European Parliamentary Elections Bill. As I say, I accept that I have rather sprung this on Ministers. I shall be content with a written reply later if I cannot have a reply now.

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Lord Sewel: I think the most helpful thing I can do is to refer the noble Lord to Clause 9(2) which states,

    "If the regional member was returned as an individual candidate, or the vacancy is not filled in accordance with the following provisions"--

we know what the "following provisions" are because the noble Lord, Lord Mackay, has described them--

    "the seat shall remain vacant until the next general election".

The noble Lord is right in his assumption that the opportunity does not exist for a by-election.

Lord Mackay of Ardbrecknish: I do not wish to press this but why is the opportunity not available when it is in the European Bill?

Lord Sewel: That is again something that I shall reflect on during the long summer evenings.

Clause 9 agreed to.

Clause 10 [Electors]:

Lord Mackay of Ardbrecknish moved Amendment No. 70:

Page 5, line 40, leave out ("local government") and insert ("Parliamentary").

The noble Lord said: In moving Amendment No. 70 I wish to speak also to Amendments Nos. 71, 72 and 73. The electoral register on which the Scottish parliament is to be elected is to be the local government register. I wonder whether that is not a case of equating the Scottish parliament with local government, and if we should not have the Scottish parliament elected from the parliamentary register with the addition of those Members of your Lordships' House who, of course, are debarred from voting. While this may look as if I am putting in a caveat for our own interests, to be honest in the seat in which I live in Glasgow I do not think it will make too much difference if I have a vote or not, but it may do as regards the additional member seats in Glasgow. I wonder, however, about the signal the Government are giving in that we are operating on the local government register and not on the parliamentary register. I beg to move.

Lord Mackie of Benshie: I am not in favour of this amendment. I do not have any daughters in Italy or anywhere else that I know of. It is logical that the local government electorate should elect the Scottish parliament. We have been through this argument. The parliamentary elections for the Westminster Parliament enable citizens living overseas and elsewhere to vote. But I do not think that those who are not living in Scotland are a logical electorate in the way that the local government electorate are. I do not approve at all of the amendment.

Lord Sewel: I thought we were heading towards the Italian "job" yet again, but that is not the case. The point, quite simply, is whether the franchise for the parliament should be drawn up on the basis of where people live currently or where people have lived in the past. We had this debate in the context of the referendum where we chose the local government franchise on the basis that it is the people who are living

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in Scotland who will be most directly affected by the decisions of the Scottish parliament because that parliament will have domestic responsibilities only. The referendum on whether there should or should not be such a parliament is a matter which should rightly be decided by those who will be most directly affected by it, and therefore the local government franchise is appropriate. The same argument holds with equal validity in relation to the question of who should vote for members of the Scottish parliament.

The basic difference is simply in the parliamentary franchise; namely, that British citizens who live abroad would have a vote. Under the local government franchise they do not have a vote, but European Union citizens resident in this country do. That kind of adjustment from the parliamentary to the local government franchise is wholly appropriate for a domestic parliament, as the Scottish parliament will be. I hope that the noble Lord will feel able to withdraw his amendment.

10.45 p.m.

Lord Mackay of Ardbrecknish: I am pleased that the noble Lord, Lord Mackie, remembers my interest in overseas voters, especially those who live in Italy. That was not my main reason for tabling the amendment, although I accept that the consequence would be that UK citizens living abroad who are normally resident and on the register in Scotland would have a vote for the Scottish parliament; and that European Union citizens temporarily in Scotland would not have a vote for the Scottish parliament.

I do not particularly want to rehearse that argument, although I believe that there is a good case to be made for it being UK citizens and people on the parliamentary register in Scotland who vote. My main point--and I am surprised at the view adopted by the Liberal Democrats and the Government--is that, if this is to be a serious parliament, as the noble Lord, Lord Sewel, has told me it is to be, and as I fully accept, then it ought to be based on the parliamentary register, not the local government register. However, at this time of night I see that I am not moving the Minister at all. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 71 to 75 not moved.]

Clause 10 agreed to.

Clause 11 [Power to make provision about elections]:

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