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Lord Norton of Louth: My Lords, I am grateful to the Minister for giving way. I understand the point he makes. However, perhaps I may draw his attention to the fact that there could be a methodological aspect to the question, rather than a partisan aspect. The commission could be looking to ensure--this is where expertise is involved--that there is no bias in terms of the wording of the question. I do not necessarily mean looking for deliberate bias in terms of those drawing it up. However, a wording may be constructed which might have a built-in bias, of which those drafting it may be unaware. That would not necessarily be deliberate. I am not thinking in terms of an attempt to gain advantage by those drafting the question; I seek to ensure that the question, which might come under the broad heading of being unambiguous, is unbiased in the sense that the wording does not point people in a particular direction.

There is a technical aspect to this, which I mentioned in Committee. A noble Lord suggested that we should have a straightforward question which could be answered "yes" or "no". My understanding is that that is problematic because there is a bias towards saying "yes" in response to a question. That is the sort of thing of which I was thinking in terms of consulting the commission to avoid bias in the question.

Lord Bassam of Brighton: My Lords, again, one person's bias may be another person's equity. The commission could find itself drawn into a political aspect which would be profoundly uncomfortable. That is not what we want from the commission. We have all set out our stall very much in terms of the commission being free and independent of the political process, although from time to time advised by it. However, I believe that that is where the commission properly sits. It is for that reason that I do not think we should taint the process.

As a politician, putting myself in that position, I am not sure on what basis I would want to respond to a request for advice on fairness or bias on a referendum question. I could only respond on the basis of what I personally happen to think about the issue in question. I do not think that there is an off-the-shelf technical answer to, for example, the question of whether referendum questions should be cast in positive or negative form, provided that they are intelligible. The Government's amendment looks after that.

I therefore suggest to the House that if your Lordships accept the Government's new clause, they will have the matter pretty much where they want it. For that reason, the Government's new clause is greatly to be preferred to the one tabled by the Opposition. I recognise that the issue is important, as I am sure will all Members of your Lordships' House. However, because of the political nature of any debate

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about fairness, equity, bias and so forth, it would be wrong to place those as questions for the commission to consider in giving its advice on intelligibility.

I am grateful for the support for the amendment we have moved, which I thought was a fair reflection of the debate in Committee, long ago though that was, and of the points raised then by the noble Lord, Lord Norton of Louth. I think we have it about right. We have gone as far as we possibly can on that question. I accept that the question of fairness is a legitimate one for debate, but that debate should be had politically.

7.15 p.m.

Lord Mackay of Ardbrecknish: My Lords, I indicated, perhaps over-generously, that I was pleased to see the government amendment on this issue. I fully accept the procedural points raised by the Minister; that is, that his amendment covers a situation in which the question would be in a Bill or in an affirmative order. Indeed, although I cannot understand or even conceive of it ever happening, it covers the situation in which the question might be in a negative order, which I find rather unbelievable. However, I accept that the amendment covers all eventualities about how the question would be addressed or dealt with in Parliament.

The problem comes down to the use of the word "intelligibility" instead of "fairness". The noble Lord came a little close to us when he said that certainly it should not be obscure. That is a little progress, at least towards the fairness attitude. However, as my noble friend Lord Cranborne rightly pointed out, these matters come into play only when we are not dealing with a post-legislative referendum. If we were, the question would be simple; for example, "Do you wish the Scotland Act to come into force: yes or no?" That is straightforward. However, the bias comes in if we are dealing with a pre-legislative referendum and are therefore not asking whether an Act should come into force.

The Minister seemed to find it hard to believe the point raised by my noble friend Lord Norton, that there could be an unintended bias in the question simply by virtue of the nature of the question. Such bias could work against the interest of the Government. Therefore, the electoral commission might well have a view about whether or not there was that kind of bias in the question. To put it perhaps at its most extreme, let us assume for the moment that at some date in the future enough of my fellow countrymen decide to elect the Scottish National Party to the Scottish Parliament, and on that basis look for a referendum to make Scotland free or to break up the United Kingdom.

I have to say to your Lordships that those two questions would receive quite different answers in Scotland. I believe both would get negative answers from the SNP; but the question phrased, "make Scotland free", would be likely to gain a bigger "yes" vote--though not perhaps a majority--than would the question phrased, "break up the United Kingdom".

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That is an illustration in bold terms of where bias can come in. Noble Lords can be assured that if the Scottish National Party was devising the question, it would go for the "make Scotland free" form. Perhaps if my party or the governing party here were devising the question, we might be more tempted to go for, "breaking up the United Kingdom". That is the essence of the problem. Both are intelligible but they both also contain bias. If I can step aside for a moment from the position that I would take on those questions, I can see that the one question is as biased as the other; and that is what we are getting at.

However, we have made progress with the Government in these amendments and for that I am grateful. Without being churlish, I hope that the noble Lord will understand when I say that we will study carefully what he says and study his amendment as it appears in the Bill. I am not sure whether my noble friends agree with me on this, but we may well come back to the issue of fairness as well as intelligibility at Third Reading. However, I welcome the Government's amendment. It arises out of our debate. Whether or not it could have gone further is something we shall ponder between now and next week. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Giving of advice and assistance]:

Viscount Astor moved Amendment No. 20:

    Page 7, line 2, at end insert--

("( ) Advice given under subsection (3), other than in confidence, shall be made public and available in a format that the Commission thinks fit to any relevant body to which this section refers.").

The noble Viscount said: My Lords, Amendments Nos. 20 and 21 relate to separate points in regard to the advice that the commission may give out.

We believe that non-confidential advice given by the commission to a political party should be made available to any relevant body whom it may concern or directly affect. The publication of such advice would be of benefit to both the other registered parties and to the political process because it would assist those bodies with their duty to comply with the provisions of this Bill and help to ensure that they were acting in accordance with the same information.

That would be helpful to the commission because it would avoid multiple applications for the same information and save other parties from having to "reinvent the wheel", as it were, on every occasion when general advice was required. In the distribution of such advice, the commission would be able to take advantage of current technology and limit any expense by sending out information electronically by e-mail, via circulars or in similar ways. Over time, the body of advice built up as a result of that distribution would constitute a valuable source of readily available knowledge to which all could refer without the need to return unnecessarily to the commission.

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Amendment No. 20 does not seek to expose sensitive information which might prejudice the standing of either the commission or the body to which it gave the advice. It requires only that the commission publish open information and leaves the form and consequently the content of that publication to the discretion of the commission. Amendment No. 20 is in keeping with the general principle of clarity and openness that lies behind the Bill. It would be of benefit to the commission and help to make its life easier.

Amendment No. 21 concerns a slightly different point. It seeks to clarify the status of advice given by the commission. It is unclear whether following the advice of the commission would constitute a "reasonable excuse" defence to many of the offences created by the Bill--of which there are many. An individual may be placed in a position where he had followed the advice of the commission to the letter but that advice was subsequently ruled wrong by the courts. If that is so, we should look again at whether or not that individual should be guilty of an offence.

Indeed, what will be the legal status of advice given by the commission? Will the courts have to have regard to that advice or can they ignore it? But that would not be helpful; it would make it difficult and discourage people from going to the commission to ask for advice, which is presumably what we want. So Amendment No. 21 seeks clarification on the nature of advice, particularly on its status, and I should be grateful if the Minister could elucidate that point. I beg to move.

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