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Lord Mackay of Drumadoon: My Lords, perhaps I may say how appropriate it is that the noble Baroness has the opportunity to explain these sensitive matters to the House. She has done so clearly.

I well understand the reason why the Government have brought forward these amendments, and I should not wish to be associated with any suggestion that devolution should in any way complicate or frustrate the attempts that must be constantly made to fight cross-Border crime. The noble Baroness has provided a full justification for these changes.

On a point of interest relating to Amendment No. 206Y, which part of paragraph 1 of Schedule 5 reserves the various functions of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters? It is not entirely clear to me.

Baroness Ramsay of Cartvale: My Lords, I am pleased that it was not clear to the noble and learned Lord, because it was not clear to me either. I inquired about the matter and have been advised that it is the very first part, namely the Crown, which covers the three agencies named.

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 207:

Page 68, line 21, at end insert--
(" . Paragraph 1 shall not prevent the Parliament from passing a Bill authorising the Scottish Executive to hold a poll in Scotland for the purposes of ascertaining the views of those polled as to whether or not Scotland should become independent of the United Kingdom.").

The noble and learned Lord said: My Lords, with the leave of the House I shall speak also to Amendment No. 208 standing in my name.

The purpose of the amendments may initially be perplexing to some noble Lords. Their terms are clearly inconsistent. They address from different perspectives the issue of whether or not it would be competent for the Scottish executive to hold a poll in Scotland for the purposes of ascertaining the views of those polled as to whether Scotland should become independent of the United Kingdom. Clearly, I shall not invite the House to accept both amendments. My choice as to which one will depend on the Minister's reply.

This matter was debated in Committee on 21st July. On that occasion a number of amendments dealt with the issue of referendums or polls. The discussion addressed the basic question of whether it would be competent for the parliament to hold referendums before turning to the secondary, albeit important, issue of whether it would be competent to hold a poll dealing with the issue of independence. The initial amendment sought to explore whether it was necessary for the parliament to be given express power as part of its legislative competence to enable it to pass Acts of the

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Scottish parliament authorising such referendums and polls. Section 7 of the Government of Wales Act gives the assembly power to hold polls.

As regards the competence of a referendum on independence, the noble Lord, Lord Sewel, dealt with the matter in his reply. He said:

    "I wish the Committee to be in no doubt that as the Bill stands the Scottish parliament will not be able to legislate to hold a referendum on independence as the union of the kingdoms is already a reserved matter under Schedule 5".--[Official Report, 21/7/98; col. 854.]
He suggested that explicit reference along the lines of an amendment proposed by my noble friend Lord Rowallan was not needed. The noble Lord went on to say:

    "In determining what relates to a reserved matter, the Government amendments tabled to Clause 28 are of help here, because they indicate that we must look at the purpose of what is being done. If the parliament passed an Act to hold a referendum about whether the Union should continue, it would thus clearly be legislating in relation to the reserved matter of the Union. Any such Act would be about the continuation of the Union and it would therefore be beyond the parliament's competence and would not be law".--[Official Report, 21/7/98; col. 854.]
He went on to give certain reasons for the view which he had expressed.

I read with care what the noble Lord said on that occasion, particularly in view of the fact that since then the Scottish National Party, I think in an interim policy document issued since July, and certainly in speeches made by leading members, has reiterated its intention to hold such a referendum in the event that the party forms the Scottish executive, or part of it. Even if it were not in such a position, there would be nothing to prevent it bringing forward a Bill and seeking to have it enacted by the Scottish parliament.

When the matter was debated in July, I expressed concern that, notwithstanding the views clearly and fairly expressed by the noble Lord, Lord Sewel, it might still be possible to construct an argument in a court of law that it would be competent for the Scottish executive to hold a referendum touching upon or involving the issue of independence. I concede that such a referendum would be held not to obtain a vote that would bind the parliament or the Scottish executive but for the purpose of informing both those bodies of the thinking of the Scottish people on this issue. I believe that it could be successfully argued--and certainly that it could be argued in a rational way in a court of law--that it would be of assistance to the Scottish parliament and the executive to be aware of what Scottish people think on the issue to assist them in the discharge of other statutory duties which lie well within their executive and legislative competence.

In developing that argument on that occasion I made reference to the fact that, without any statutory authority, the Strathclyde Regional Council had on its own initiative held a referendum as to whether the water supply industry in Scotland should be privatised. I also referred to the fact that the Grampian Regional Council had made a financial contribution to the Scottish constitutional convention, albeit that the work of the convention touched on issues which were not within the direct statutory responsibilities of the local authority.

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Since the matter was last debated in this House, the Supreme Court in Canada has issued a judgment in a very important and interesting case involving the consequences of a referendum in Quebec. The decision was dated 20th August this year and followed a reference by the governor, acting in council, posing certain questions for the Canadian Supreme Court. Against the background that it was held that the referendum held by the Quebec authorities in no sense bound the other members of the federation and had no binding effect, there is an interesting discussion as to how the expression of opinion which the referendum threw up placed upon the other parties to the federation a duty to negotiate in a responsible manner as to whether it would be appropriate for Quebec to receive its independence.

I can foresee that if, many years down the line, such a referendum were to be held in Scotland, reference might be made to that authority. As we have discussed on numerous occasions during the passage of the Bill, when the Judicial Committee of the Privy Council comes to deliberate on how devolution issues should be resolved, it is anticipated that they will look to the jurisprudence of the Commonwealth for assistance on these matters.

As far as the practicalities of having a referendum are concerned, I believe that I am at one with the Government. I understand that the Government are opposed to a referendum being held. Their view is that it would be incompetent for that to happen under the present terms of the Bill. I agree. If the majority of the Scottish people wish to seek independence--and I believe that they certainly do not--they could make that clear by voting in a general election for sufficient numbers of members of the SNP. There is little doubt that, were that to happen, negotiations of the type referred to in the Canadian case might well begin.

Where I and the Government Benches differ is as to whether the matter should be clarified further on the face of the Bill. Time and again in our debates on the Bill there have been discussions as to whether some of the clauses are unnecessary and whether some of the amendments proposed are unnecessary and would serve to increase the length of an already complicated and detailed Bill.

If the second of my amendments were to be accepted by the Government, I believe that it would unequivocally prevent any attempt by either the Scottish executive or the Scottish parliament to hold a referendum unless it had been sanctioned by this Parliament. That is, therefore, the amendment which I favour, and I hope that it would be accepted. In the meantime, I beg to move Amendment No. 207.

The Earl of Mar and Kellie: My Lords, I believe that these two paradoxical amendments raise an important issue and that one of them should be on the face of the Bill. It is always important to reaffirm that Scotland has placed its sovereignty voluntarily in the United Kingdom and in this Parliament. The Bill is entirely in keeping with that constitutional theory. The Bill is being enacted because the people of Scotland have requested--or perhaps demanded--the return of

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some de facto sovereignty in the form of a parliament with powers devolved from this United Kingdom Parliament.

The issue of power to hold a plebiscite concerning secession from the United Kingdom is also central to that constitutional theory. The power must be lodged overtly somewhere. For the Bill to be silent on the issue, as if it would just go away, could be seen as confirmation that Scotland has been annexed on a de facto basis and that Scotland is not a voluntary member of the United Kingdom.

The scheme of devolution before us lays down that such constitutional issues are reserved matters and that it would be for the United Kingdom Parliament to deal with any demand for secession from the United Kingdom. The people of Scotland should be allowed to know--and should be under no illusion about the matter--that this is an issue which they ought to take up with their Westminster MPs in the future. I support Amendment No. 208, which clarifies the position as I have described it.

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