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As far as I am concerned, it has never been a condition precedent of completing this work that we guarantee that there will be an LCM. However, it now appears that there will be one. At least to the extent that we can anticipate that the agreement that has been reached will persuade the Members of the Scottish Parliament to vote for this LCM, I think we can work on the basis that there will be one. However, we need to get more detail from the Government of what this deal that they have struck with the Scottish Parliament actually means.

I have already said this afternoon that the Government should assure the House that Parliament will be provided with an adequate opportunity to scrutinise properly what amount to significant new details on the process of the devolution of tax and borrowing powers. I do not fully understand the relevant paragraphs in the Written Ministerial Statement. We do not have much time to get to grips with them, but we will never do so if no one explains them to us. What exactly does the reference to the Holtham report mean? The noble Lord, Lord Forsyth, referred to the paragraph that states:

"The Government will work together with the Scottish Government over coming months and years to give operational effect to the powers including the block grant adjustment, in a fair and sustainable way".

What does that mean? How will that agreement, when it is reached, be subject to parliamentary scrutiny here in our Parliament?



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The next bullet point states that the Secretary of State for Scotland and Scottish Ministers will produce between them,

There must be some method of accountability envisaged in this deal that allows this Parliament to be assured that the Bill we are passing in the context of the deal that has been struck will ensure that the Government are answerable for what they are doing in relation to these issues.

I am content that we should continue with this debate provided we are given some explanation of how this process is to be carried out. I am happy to engage, time permitting, in any number of briefings outwith this Committee with Ministers, or with Members of this House more broadly, so that they can explain how this process is to operate. I would also like to be assured that Members of the other place will get the same briefing, because it is absolutely certain that they will get 15 minutes to debate all this and decide it when it gets back to them. They may all be cut off in mid-sentence as they try to tease out what this means. I therefore encourage the noble and learned Lord to come to the Dispatch Box now, or at some stage over the next few hours, and explain how this is to be done.

I have already said that I broadly welcome the other aspects of this agreement-the non-financial elements-because I do not think that they represent the hollowing out of the Bill that was suggested earlier. They are comparatively small concessions. However, as my previous contributions to this debate, and those of my noble and learned friend, have indicated, they are concessions that we were encouraging the Government to implement in another way because we thought they went beyond the Calman recommendations, which we support. Legislative consent Motion conditionality is less relevant to the Bill now than it ever was. In any event, it was never relevant to my support for it. However, we now have a much more complicated environment that has generated the possibility of that LCM. When the noble and learned Lord comes to the Dispatch Box now or at some stage within the next few hours, I urge him to explain to us the implications of that much more complex environment.

Lord Wallace of Tankerness: My Lords, I am grateful to my noble friend Lord Forsyth for his amendment. He obviously had great prescience in tabling it because it has been debated today when a Written Ministerial Statement has been brought forward paving the way for a legislative consent Motion. As the noble Lord, Lord Browne of Ladyton, made clear, that is what it does-it paves the way for a legislative consent Motion, and it will be a matter for the Scottish Parliament to determine whether to pass it. However, as the noble Lord, Lord Foulkes, indicated, he would be rather surprised if the majority party in the Scottish Parliament did not take the lead from its leader.

I was asked by the noble Lord, Lord O'Neill, for more details. I have not held any direct negotiations with the First Minister on these matters. My right honourable friend the Secretary of State has been primarily responsible for the negotiations involving individual Scottish Ministers.

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The Written Ministerial Statement sets out the agreement that has been reached and we should be happy to provide further details to facilitate debate on Report. I had already indicated as much with regard to the Holtham proposals. Clearly, if other issues need to be raised, it is only right that I should facilitate that debate. As I think was acknowledged in our short debate before agreeing to go into Committee, a considerable amount of hard work was done to ensure that that agreement was concluded and, in turn, to ensure that that happened before today's debate.

It is difficult for me to make other arrangements while I am here on the Front Bench, but I am more than willing-even at the conclusion of our discussions this evening-to meet noble Lords to arrange for briefings on paper, and perhaps to see what other briefings between Members of your Lordships' House and relevant officials could be facilitated, so that when we come to Report or Third Reading, when there may be a bit more time, your Lordships will be properly informed and briefed.

I certainly pick up the point made by the noble Lord, Lord Browne, that Members of the House of Commons have more than a legitimate interest in these matters, because if this House chooses to pass amendments-and the Government will be bringing forward amendments to reflect some aspects of the agreement that require changes to the Bill-they will also have to be considered in the House of Commons. I certainly want to facilitate such discussions as best I can and, if it is thought suitable-and it is not at a ridiculous hour, which I hope it will not be-I shall be more than happy to meet anyone who wishes to have a preliminary discussion at the end of our proceedings today about how those discussions might best be achieved.

It has always been the Government's intention to secure a legislative consent Motion from the Scottish Parliament in favour of the Scotland Bill, and it goes without saying that we are pleased that we were able to do that in terms of changes to the Scotland Bill and supporting non-legislative arrangements, and that the Scottish Government have also tabled a legislative consent Motion in support of the Bill. It includes finance and non-finance changes. I believe that these changes meet the tests that my right honourable friend the Secretary of State indicated were important, and by which this Government have set store, for any changes to the Bill package-namely, that they are based on evidence, maintain the cross-party consensus that supports the Bill and will benefit Scotland without detriment to the rest of the United Kingdom. We have gone further than in any other Bill in working between parties in Scotland and across the United Kingdom to build on a cross-party consensus. We have carefully considered and-where appropriate and where the case has been properly made-we have taken on board the views of the Scottish Government and Scottish Parliament. This has allowed an agreement to be reached.

My noble friend asked about the legislative consent Motion, and the position was also reflected in the contribution of my noble friend the Duke of Montrose. It may be useful if I say something about legislative consent Motions in the absence of the noble Lord, Lord Sewel, who I am sure would be able to correct me

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if I got it wrong. During the passage of the Scotland Bill through your Lordships' House, the noble Lord, Lord Sewel, said that,

It is a convention; it is not law. The words "not normally" are there. An example occurred earlier this Session when the Scottish Parliament passed a legislative consent Motion objecting to parts of the Welfare Reform Bill. The Scottish Parliament consented to some parts that were within devolved competence and rejected other parts that had implications for Scottish Ministers. The United Kingdom Government-probably one of my noble friends from this Dispatch Box-moved amendments to excise those parts from the Welfare Reform Bill.

6.15 pm

The statement made by the noble Lord, Lord Sewel, has been supplemented in a devolution guidance note and is now in the Memorandum of Understanding with devolved Administrations. I have one here from November 2005, issued by the Department for Constitutional Affairs, which states:

"The convention applies when legislation makes provisions specifically for a devolved purpose. It does not apply when legislation deals with devolved matters only incidentally to, or consequentially upon, provision made in relation to a reserved matter, although it is good practice to consult the Scottish Executive in these circumstances".

There is an important distinction between a convention and a Section 30 order. A number of different orders can be promulgated under the Scotland Act 1998. Indeed, there is a schedule with headings (a) to (j)-possibly more-that state the procedures and processes in respect of each order. I know that noble Lords have had debates in the Moses Room on Section 104 orders, which very often relate to when the Scottish Parliament is unable to give full expression to its legislative proposals because they may well have non-controversial implications for matters or bodies that are reserved. After working with the United Kingdom Government, it is possible to bring forward an order that can then give full effect to such proposals. We recently considered such an order with regard to social housing. There are a number of examples. These are matters of law, and a Section 30 order is used to transfer or make changes to Schedule 4 to the Scotland Act. Schedule 5 sets out the specific issues that are reserved under that Act. A Section 30 order requires the consent of the House of Commons, the House of Lords and the Scottish Parliament. It is not a convention. If the Scottish Parliament withholds its consent, a Section 30 order cannot pass. That is why it has legal effect in a way that the Sewel convention does not.

The Earl of Caithness: My Lords, on that point, will the Minister confirm that my noble friend the Duke of Montrose was right to say that we cannot amend a Section 30 order here and that we have to either reject or accept it?

Lord Wallace Tankerness: It is generally the case for all orders that they cannot be amended. However, in earlier exchanges, the noble Lord, Lord Foulkes,

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asked whether there might even be a draft order. Actually, it was the noble Lord, Lord Sewel. My apologies -it seemed to happen so recently. He raised the possibility of a draft Section 30 order. I indicated then that if it related to the important issue of the referendum, we could take the opportunity of the debates that we are, I hope, about to have to get the reflections of your Lordships on these matters.

The Duke of Montrose: I am most grateful to my noble and learned friend for giving way. I am very interested in where he has gone with his explanations. It has been an interesting discovery that Section 30 orders can be applied to devolved and non-devolved matters. Section 30 orders can be applied within the legislation. If it is something included in an Act-this is the first time that we have had a new Bill since the 1998 Act-it seems that the legislation does not require the consent of the Scottish Parliament. This is the first time that the devolution guidance note has been before the Committee. It would be interesting to see the whole of the devolution guidance notes so that the Committee is aware of what the noble and learned Lord has to deal with in his negotiations with the Scottish Parliament. We are getting closer to where the legislative terms lie.

Lord Wallace of Tankerness: I am grateful to my noble friend for giving me an opportunity to make things clear. I rather suspect that the devolution guidance was placed in the Library by the previous Administration, but if there is any need to ensure that it is taken from the back shelf and made more readily accessible, I am sure we will see to that.

Perhaps it is my fault for not having explained it, or perhaps we have just glibly used the expression "a Section 30 order" without explaining it. A Section 30 order is not about dealing with things which are currently devolved. The purpose of a Section 30 order is to transfer issues which are currently reserved under Schedule 5 and devolve them to the Scottish Parliament. Perhaps one of the best examples of that since the Scottish Parliament was established in 1999 is the devolution of railways. There was extensive discussion and negotiation between the Scottish Executive and the United Kingdom Government. A Section 30 order was brought forward to bring about the devolution of railways to Scotland. Railways were not previously devolved. There were limits on that, as the noble Lord, Lord McConnell, will no doubt remember. Section 30 orders do not deal with matters that are already devolved. They are to confer on the Scottish Parliament devolved responsibility and powers in areas that are currently reserved. That is why it is important that they have to be passed by both Houses, as well as asking the Scottish Parliament, "Do you want these powers?".

The Duke of Montrose: My noble and learned friend is describing what has been the habit of the use of Section 30 orders, but Section 30 states:

"Her Majesty may by Order in Council make any modifications of Schedule 4 or 5 which She considers necessary or expedient".

Therefore, it can be used for both devolved and reserved matters.



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Lord Wallace of Tankerness: I do not think that that is the way to transfer backwards. That may be possible; I will have to check. It may be possible to go in the opposite direction. I am trying to think whether that has ever actually happened. When the Arts and Humanities Research Council was established, because it had not hitherto existed and because under the scheme of devolution it was a devolved as opposed to a reserved matter, an order had to be brought forward to establish that it would be a UK parliamentary responsibility. I am not sure that it was a Section 30 order. The noble Lord, Lord Sutherland, may have been involved at the time. I certainly was, because I took the order through the Scottish Parliament.

The important point is that it changes the devolution settlement. It changes the boundaries between devolved and reserved powers. That is why it requires the consent of both Houses of Parliament and the Scottish Parliament before it proceeds to Her Majesty in Council.

I hope that I have shown that there is a distinction between that and a legislative consent Motion, which is by its nature a convention. On the basis of those explanations and the undertakings that I have given to try to identify ways in which we can discuss the matter in more detail-

Lord Kerr of Kinlochard: My Lords, the noble Lord, Lord Forsyth of Drumlean, raised one other question in his reading of the Statement. I am very grateful to the Minister for his Statement, and I feel much less pernickety about it than the Committee as a whole seems to do. It is a good thing that this agreement has been reached. A number of demands from the north have been dropped. A number of changes that the Government propose to make seem to me perfectly earnestful. The reason why it has been possible to negotiate this successfully is that everyone has decided that it is de minimis-it really does not change the price of fish. That is the trouble with the Bill: it does not attack the real issues.

The noble Lord, Lord Forsyth, referred to the sentence in the Statement in which we are told:

"The Government is open to considering what further powers might be devolved after a referendum on independence".

The noble Lord asked how we should construe that sentence. Scots are good at punctuation. There is no punctuation in that sentence. That, I take it, means, "We are open to considering now, today". It does not mean, "We are open to considering what further powers might be devolved, after a referendum". The Minister had a good Scottish education, so I am convinced that I am reading this correctly. That seems to me to be a move from the porridge oats speech, where I think the punctuation included a comma. Am I right? Am I reading this correctly?

Secondly, what mode are we in? The porridge oats man is very muscular. He is very active.

"The Government is open to considering",

suggests to me a rather passive role. The Government will sit there and if anyone turns up with an idea, they may look at it. Are we active or passive? I think that the porridge oats position, the punctuated position, is impossible-after there has been a referendum, then we will consider what more you might get. Scots have

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long memories. It will not work; that is an unsustainable position. Therefore, I am very glad to see no punctuation in that statement. Are we actively to define what further measure of devolution would be feasible, or are we to leave it to others to devise devo-maxes, devo- pluses and devo this, that and the other? I feel that there is a strong case in logic for being clear before an independence referendum about what would be on offer after it.

Lord Wallace of Tankerness: They may be very unfair on themselves but officials say, "Blame officials for poor punctuation". I think I will reserve my position on that. I apologise for forgetting to pick up the point raised by my noble friend. As he and the noble Lord, Lord Kerr, correctly identify, the Statement says that the Government will consider further devolution after a referendum on independence. I believe that that is consistent with the position set out by the Prime Minister and with the evolution of devolution to date. It has involved a careful assessment of the evidence.

One could go back to the constitutional convention or the Calman commission. It has involved consideration of its implications across the United Kingdom-it is important to remember that any devolution has implications for other parts of our United Kingdom-and it has generally proceeded with cross-party agreement. Those are all essential ingredients, perhaps not of porridge oats but for moving forward. The Government are committed to continuing to consider amendments to the devolution settlement on that basis. My party and others are doing their own thinking on what that might be, but, as we have seen to date, any substantial progress has been made on the basis of cross-party agreement. That is important.

I make one further point for clarification. My noble friend the Duke of Montrose is right: the word "modify" means to decrease or extend the subject matter of Schedule 5, and I am advised that the order which I took through the Scottish Parliament with regard to the Arts and Humanities Research Council was indeed a Section 30 order that added something to Schedule 5.

Lord Forsyth of Drumlean: My Lords, we have had an interesting debate. To rescue the Minister, I think that paragraph 3 is headed,

"Further devolution in the future",

which qualifies the sentence,

"The Government is open to considering what further powers might be devolved after a referendum on independence".

I think that it clearly means that it is after the referendum.

I noticed that my noble friend did not answer my question when I asked what he could be thinking of, given the scope and nature of the Bill. As I get older, I get more and more interested in gardening. One thing that I have learnt is that it is a big mistake to pull plants up and move them before they have had a chance to settle and put down roots. It seems rather odd that we are discussing a Bill where the tax proposals will not come into effect until 2015-16. The noble Lord, Lord Kerr, wants us to start thinking about further devolution now. If you are going to plant this prickly sort of bush, it is probably a good idea to see whether any flowers are going to appear on it before

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deciding whether you are going to do more planting. I hope that my noble friend will not be tempted to expand the meaning of that sentence.

6.30 pm

I am still unclear about the Government's policy on legislative consent Motions. I am not clear whether they regard them as something which they are prepared to override, but I am clear why the Government do not want to say what they think about that. I entirely agree with my noble and learned friend's analysis of the role of Section 30. I am fascinated, as we move on to the debate on referenda, to hear from him precisely what he is going to do if he cannot get the Scottish Parliament to consent to a Section 30 proposal that contains the conditions which have been clearly laid out by the Prime Minister on a referendum.

In order that we can get to that issue as quickly as possible, I beg leave to withdraw my amendment.

Amendment 85 withdrawn.

Amendments 85A and 86 not moved.

Amendment 87

Moved by Lord Foulkes of Cumnock

87: Clause 43, page 33, line 2, at end insert-

"( ) Notwithstanding the other provisions of this section, no provision of this Act may come into force until a referendum has been held in accordance with section (Referendum about Scottish independence)."

Lord Foulkes of Cumnock: My Lords, we now come-at last, some noble Lords may be saying-to what I understand is the first of two substantial debates on the major question of this Bill. It is the one we have been waiting for with great anticipation, holding off until the report of the consultation has been published, on the referendum. I am not going to manage to do it in 140 words, let alone 140 characters, although I can say to my noble friend Lord O'Neill that whole stories, whole sagas, can be written in 140 characters. I will give him just one: Heart of Midlothian two, Hibernian nil. That describes 90 wonderful minutes last Sunday which I am sure he would wish to forget.

However, let us get on to the substantive issue of the evening. We are talking about the future not just of Scotland, but of the whole of the United Kingdom. What happens to Scotland in an independence referendum will have a huge effect on the whole of the United Kingdom, some of the detail of which has not yet been examined. We have started discussing and debating them at last-they are principally some of the effects on Scotland. However, the Joint Committee on the National Security Strategy, for example, only recently started to discuss some of the security implications of an independent Scotland, in relation to the independent deterrent, membership of NATO, and a whole range of other things. There would be huge implications for the whole of the United Kingdom if Scotland was no longer a part of it.

Any referendum, or referenda, should be organised on an agreed basis that we all understand-that the Scottish Parliament and all of its Members understand;

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that both Houses of this Parliament and all the Members understand; and that the Scottish people understand. The UK consultative document is absolutely right in saying that the three essential elements should be that it must be legal, fair and decisive. First, it must be legal because some people will be predisposed to challenge the basis of a referendum that is not carried out on a legal basis. I cannot say nothing will be open to challenge, but there must be a minimal likelihood of it being challenged. That would be something that would be conducted if not by, then with, the authority of the United Kingdom Parliament.

Secondly, it needs to be fair. That will ensure that all of us will be satisfied that we have had the opportunity of putting our case to the Scottish people fairly. Questions about the timing of the referendum, and the question to be asked-I will come back to that in a moment-are absolutely essential in relation to that. People who seek to choose the timing to make sure that they get a maximum vote for separation are not giving the Scottish people the best opportunity to make a balanced judgment about the referendum. That is clearly the idea of waiting until 2014. The euphoria of the Commonwealth Games, the Ryder Cup, and the anniversary of Bannockburn, will get Scots all fired up, even those from Shetland. I am sure the noble Lord, Lord Lamont, will find a way of coming to a specific amendment in relation to Orkney and Shetland as well.

Of course the timing is also being suggested for 2014 because in the run-up to the United Kingdom election, the SNP wants to try to polarise the debate between a certain kind of Scotland and a politically different United Kingdom, and that would also be to its advantage. I will come back to the question to be asked in a moment.

Thirdly, it has to be decisive. It needs to be clear that the referendum will settle the issue. We know from the experience of Quebec that it may not settle it forever, but it must be settled at least for the foreseeable future. If there is a big enough majority against separation, perhaps it will be forever or at least for our lifetimes, or for a generation.

My Amendment 87 is to hold over provision of this Act until the referendum has taken place. The Amendment 88 tabled by the noble Lord, Lord Forsyth, supported by another former Secretary of State the noble Lord, Lord Lang, and by the noble Earl, Lord Caithness, would have the United Kingdom Government take action to exercise their undoubted right to call a referendum by Order in Council. That is clearly unacceptable to the Scottish Parliament. I would not be averse to it, I have made that clear on a number of occasions. However, on the basis that I suggested earlier-that this whole arrangement needs to be accepted by all the parties involved-we must think carefully before exercising that right.

Lord Forsyth of Drumlean: Is the noble Lord saying what I think he is saying? Is he saying that if we proceeded by using Section 30, and if the Scottish Parliament declined to give consent to that, we should not have a referendum? Then the only alternative would be for the Westminster Parliament to pass the necessary legislation without support. He appears to be ruling that out. I hope he is not.



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Lord Foulkes of Cumnock: The noble Lord is anticipating something I am going to say. For once, exceptionally for me, I have written down the argument in some sort of order. I was going to say, before he interrupted me, that we should not rule out such an option if the circumstances made it desirable, or perhaps made it the only acceptable option. That could be because the timing was contrived, in relation to the proposed referendum by the Scottish Parliament, or because we would not succeed because we could not get agreement in relation to a Section 30 order. That is not the preferred option; it is the fall-back position. As I said earlier, the good thing about a referendum organised by the United Kingdom Government would be that it would not only be decisive but it would be legal and would not be open to challenge.

I now come to the other option, which is the proposal of a Section 30 order. I think that is a good arrangement, a clever arrangement and an arrangement that will enable the Scottish Government to legislate for a legal referendum. That would not be likely to be challenged, but it would have to be on an agreed basis. That is why the question raised in our earlier debate about whether the order would be amendable is important. I think the Minister said that, in debating the order, he would consider whether some opportunity might be taken for amendments to be considered. I think that my noble friend Lord Sewel suggested that we might have a debate on a draft order. We may be crossing bridges before we get to them, but that is a good suggestion that would enable us to table amendments.

In this context, the Secretary of State's letter of 20 March to my right honourable friend the Shadow Secretary of State, Margaret Curran, confirms, as did the Minister earlier, that the consultation indicated clear support throughout Scotland for this proposal, including from constitutional experts-the Minister described them earlier-and knowledgeable organisations such as the Law Society of Scotland, the Royal Society of Edinburgh and the British Academy. The Scottish Government have now accepted this, but a Section 30 order still has to be agreed with Scottish Ministers. That is where the difficulty might arise and where the negotiations will be important, where, in the words of the noble Lord, Lord Kerr, we will need to have had our porridge oats, or Scott's Porage Oats. The Minister is negotiating, so that they take a firm line.

Lord Reid of Cardowan: As regards what might and might not be the ultimate outcome of such discussions, let us be absolutely clear on one thing. If it is a question of Scotland remaining inside the United Kingdom or leaving it, the Scottish people have the right to decide such a question. However, a wider question about the changed nature of devolution within the union cannot be a question just for the Scottish people or for the Scottish Parliament; it must be a question either for the two Parliaments, or for the people of the United Kingdom. Will he make that clear?

Lord Foulkes of Cumnock: I completely agree with my noble friend. I think that needs to be made clear to Ministers. I was going to turn to the issue of one question or two questions in a moment. We need to set targets for our Ministers when they are negotiating

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and discussing with the Scottish Parliament. In Amendment 89, the noble Earl, Lord Caithness, talks about the referendum being advisory or binding. There has been much discussion about whether any referendums have been advisory or binding. I think some have been advisory but have been accepted as binding. One target that we need to set the Minister is to decide that both Parliaments should agree in advance to accept the result of the referendum and follow it through with the necessary legislation as the will of the Scottish people.

6.45 pm

That brings me to my Amendment 94C in this group. I want to deal with the wording of the question. Again, we need to set a target for our Ministers. The wording of the question proposed by the Scottish Executive is loaded; it is contrived to get the maximum result for a yes vote: "Are you in favour of an independent Scotland?". There is no indication what that means. It is a kind of, "Are you in favour of motherhood and apple pie?" question. I think it is the wrong way around. In two of the amendments that I have tabled, I suggest that the question should be the other way around:

"Do you want Scotland to remain part of the United Kingdom?".

That is the key point. It changes the fact that those of us who are in favour of the union would be on the yes side of the argument rather than the no side, which I think would be helpful. It may be that some compromise can be worked out, but I certainly do not think that we should accept the wording that the Scottish Executive has put forward. I think that my suggested wording would be preferable and should be the starting point of the negotiations.

I turn to the point put to me by my noble friend Lord Reid: should there be a second question in the referendum? I think that, like the Government, we, as a Parliament, should make it clear that there should be no question on the referendum other than that which asks whether people are in favour or against separation-in favour or against remaining part of the United Kingdom. I reiterate what I said to my noble friend Lord Reid: that there should not be a second question because devolution and separation are two entirely different concepts.

Once we decide, as I hope we will, to remain part of the United Kingdom-this relates to a point that was raised earlier-we need to consider how much devolution there should be and whether the status quo is enough. By then, the status quo will be this Bill.

Lord Reid of Cardowan: I entirely support the thrust of what my noble friend is saying, but it is important to recognise that any change in the relationship inside the United Kingdom must be put before the people of England, Wales and Northern Ireland as well as Scotland, not just because it is a different concept, but because it directly and materially affects them. The Scottish people have the right, if they so wish, to leave the United Kingdom, but if there is a desire for a relationship which diminishes, for instance, the role of England, Wales and Northern Ireland in relation to Scotland within the United Kingdom, that is an entirely different matter in practice as well as in concept.



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Lord Foulkes of Cumnock: I am not sure that I fully agree with my noble friend on that. The referendums in 1979 and 1997 were both on the basis of the Scottish people deciding.

Lord Reid of Cardowan: I was careful to say earlier that anything other than leaving or staying in the union must be agreed either by both Parliaments or by the people of the whole United Kingdom. The two instances which my noble friend mentioned were, of course, agreed by the United Kingdom Parliament before they went to a referendum.

Lord Foulkes of Cumnock: I had not appreciated the qualification of being accepted by both Parliaments. If they are accepted by both Parliaments, that will fulfil my requirements and belief.

I have an amendment which suggests a further referendum on devolution-whether we should have the status quo, devo-plus, devo-max or a multi-option referendum. I am not in favour of that now and I shall not press that because that was going to be 35 days after independence. I confess that this amendment has not received universal support; in fact, it has not received any support at all, which is probably why I am not going to press it.

A stronger reason is that we heard a very powerful argument from both Front Benches that the 1997 referendum's second question gives power to Parliament to decide further devolution. If both Parliaments, as my noble friend Lord Reid has agreed, decide on further devolution, I do not think a referendum is necessary.

Finally, there is the question of further devolution which the noble Lord, Lord Kerr, raised in his interesting intervention about porridge oats and punctuation. I agree-and now it seems the Prime Minister agrees-that further devolution needs to be carefully considered. We have got that in the Statement which the Secretary of State made today. It should be carefully considered; as a number of people have said, the devolution we have at the moment-which is the devolution of the Calman commission, the further extension-has been agreed on an all-party basis, and on the basis of consensus and consultation. That should be the basis of any further extension of devolution.

Both my own party, the Labour Party, and the Liberal Democrats, the Minister's party, have commissions looking at this. In our debates on Thursday, we had an indication that already there is a degree of a mandate in relation to further fiscal devolution.

There are other issues in relation to the referendum, such as the role of the Electoral Commission, which I strongly support as being responsible for the conduct of the referendum. Another is the franchise, because while the Scottish Government propose to extend it to 16 and 17 year-olds, I believe there should be no unilateral reduction in the voting age just for one referendum. There are a number of other detailed matters which we will come to in the later amendments.

We now have this agreement on the legislative consent Motion. We have substantial agreement that greater tax powers are acceptable, and that borrowing consent,

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which we are giving to the Scottish Parliament, is welcome, and that specific areas are now being devolved. Let us not make any mistake about it: this implementation of the Calman recommendations is a very substantial increase in the devolved powers of the Scottish Parliament. We should not be hiding that under a bushel. We should be proclaiming it from the rooftops. Many of the advances have come from pressure from Labour MPs and Labour Peers. It is something I am now proud to support fully. I beg to move.

Lord Wallace of Tankerness: My Lords, it was thought at one stage that it might be helpful if I indicated the Government's position on these points. I shall do that if the House thinks it would be helpful and at the end I will respond to points made in the debate as well as to more specific points made by the noble Lord, Lord Foulkes.

I also wish to thank noble Lords for helping to try to deal with these issues in two discrete groups. The first group concerns how to legislate for a referendum; for instance, whether there should there be one question or two on the ballot paper, the nature of a binding and advisory referendum, and whether it should be held across the United Kingdom. Indeed, my noble friend Lord Caithness has indicated that he wishes to discuss implications for the Scotland Bill of Rockall and, a place dear to my heart, Orkney and Shetland. Subsequently we will have a debate on one of the later groups on more practical but nevertheless very important matters relating to the referendum, including the role of the Electoral Commission, eligibility to vote in a referendum, and oversight of the referendum.

I want to endorse what the noble Lord, Lord Foulkes, said, when indicating that he supports the Government's view of a referendum that is legal, fair and decisive. I think he said that fairness must be fairness for all, and it is a very important point. We will certainly come to debates on the franchise and the role of the Electoral Commission, but I would want to agree that the referendum must be conducted in a way that is deemed fair to all and that both sides are satisfied and can accept the outcome. There would be nothing worse than to have an outcome where one side or the other was crying foul. In all our views, this means adhering to the well-established rules for referendums, so that neither one side nor the other can claim that there has been a false referendum.

As I set out in my Oral Statement to your Lordships' House on 10 January, the Scottish National Party won a significant victory in May 2011. In that election it campaigned for Scottish independence and its manifesto included a pledge to hold a referendum on independence. But winning an election victory is not sufficient. The SNP did not explain how, in legal terms, it proposed to deliver a referendum either in its manifesto or in the election campaign. Nor indeed did the Scottish Government set out their legal view or their plans for many months. As has been highlighted before in your Lordships' House, this is not a matter that can be avoided. To legislate for a referendum on independence, the Scottish Parliament must have the power to do so, and it is the Government's clear view that the Scottish Parliament does not have that power.



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That is why on 10 January we published our consultation paper on how to deliver a legal, fair and decisive referendum. As I indicated earlier, officials are reviewing and analysing the responses and the Government will publish a full report on the consultation, but perhaps I may give some early indications. We received almost 3,000 responses. As I have already indicated, they came from members of the public in Scotland and beyond, and there were contributions from businesses, academics, political parties, trade unions and many others that belong to civic Scotland. I believe this will, and does, provide a sound basis for gauging Scottish opinion on the issues.

The Government's central proposition in the consultation was, as has been said, that the referendum must be legal, fair and decisive. It is important that the responses we received are analysed thoroughly, but I can indicate some of the preliminary results on the key issues. First, on legality, we must turn to the Scotland Act 1998. The Act is clear. The Scottish Parliament cannot legislate on matters reserved to this Parliament, including,

"the Union of the Kingdoms of Scotland and England".

Any Act of the Scottish Parliament is simply not law if it is outwith the competence of the Scottish Parliament. An Act of the Scottish Parliament is outside legislative competence if it relates to reserved matters. The question of whether a provision relates to a reserved matter is determined by reference to,

We are quite clear that the Scottish Government's purpose in bringing forward a referendum is to secure independence. Their intended effect is to secure a mandate for this to happen. Both purpose and effect relate directly to the reserved matter of the Union. Your Lordships' Constitution Committee, in its report published last month, said:

"An authoritative determination of the legal issues analysed in this chapter could be given only by the courts. Having considered the matter in detail, we are of the clear view that the ... analysis offered by the UK Government is correct. Without amendment, the Scotland Act 1998 confers no legislative power on the Scottish Parliament to ... authorise a referendum about independence".

The committee welcomed the Government's proposal that a Section 30 order be made to devolve power on the Scottish Parliament to legislate for a referendum on Scottish independence.

In our consultation document, we invited views on devolving powers using other legislation, including the current Scotland Bill, and for opinions on the possibility of running the referendum directly from Westminster. We have been clear throughout this process that it is the UK Government's preference to work with the Scottish Government to secure agreement on the way forward. This is not a question about the mandates of Scotland's two Governments. We believe it is about empowering the people of Scotland to participate in a referendum that is legal, and it is crucial that any referendum is beyond legal challenge. To provide for that legal referendum, we have set out our view that the power to legislate for a referendum should be devolved by the use of a Section 30 order agreed by both Governments and subsequently put to, and agreed by, both Parliaments.



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Initial analysis of the responses received demonstrates that a significant majority agreed with that approach. That position was not simply supported by the volume of respondents, but by key academic experts and commentators including Professor Matt Qvortrup from Cranfield University, Professor Adam Tomkins of the University of Glasgow, Alan Trench of the University of Edinburgh, and representatives of organisations such as the Law Society of Scotland, the Electoral Reform Society of Scotland, the Royal Society of Edinburgh and the British Academy.

Noble Lords will also have noted that, soon after we published our consultation, the Scottish Government published their own document on 25 January. In that document the Scottish Government also acknowledged the legal problem and accepted that a Section 30 order was the best way to remove doubts about the competence of the Scottish Parliament. We welcome this endorsement, which the Secretary of State has discussed with the First Minister, and we look forward to continuing that dialogue over the coming weeks. Against that background, and indications that the Scottish Government want to reach agreement on these critical matters, I can confirm that we will not be tabling any government amendments on a referendum in the Scotland Bill.

In addition to ensuring that the referendum is legal, the Government have been clear that it should also be fair and decisive. That will be discussed when we debate the second group of amendments.

7 pm

Lord Forsyth of Drumlean: When my noble and learned friend says that the Government will not be tabling any amendments to the Bill, he is ruling out using the Bill as a vehicle to run a referendum. The Section 30 procedure requires the consent of the Scottish Parliament. In the absence of that consent-perhaps over the issue of whether there should be one question or two-is he prepared to introduce legislation in the next Session to provide for the referendum to be conducted along the lines that the Prime Minister set out in what the noble Lord described as his porridge oats speech?

Lord Wallace of Tankerness: My Lords, my noble friend was right to say that we do not intend to use the Bill as a vehicle for introducing provisions for the referendum. I cannot be clearer than that.

Lord Forsyth of Drumlean: My noble and learned friend was absolutely clear on the point about using the Bill for the referendum. Everyone agrees that the preference has always been to use the Section 30 power, which requires the agreement of the Scottish Parliament. The Prime Minister stated clearly that there would be a referendum; that there would be one question; and that it would be run by the Electoral Commission. In the absence of agreement to that under Section 30, will the Government bring forward in the next Session legislation to give effect to that? If that is their position, I will be happy not to move my amendments and not to waste any more time talking about referenda.



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Lord Wallace of Tankerness: I will make this clear. If agreement could not be reached on a Section 30 order, and if we ensured that the matter was kept out of the courts-which I hope would be the preference of most if not all of us-we would need to consider what other options were open to us to provide a legal, fair and decisive referendum. However, just as we were taken many times down the road of, "What if we cannot get a legislative consent Motion?", which we have now seen is possible, we should make it clear that we are confident that we can reach agreement.

We reached agreement on the Scotland Bill when some said that it would be impossible. We reached agreement that Section 30 was the preferred route of both Governments to deliver a legal referendum. When I made my Statement on 10 January, I could not have said that that would be the case. The Scottish Government publicly stated that they share our view that the Electoral Commission should review the question. In their consultation paper, they state that their preference is for a single, direct question. Therefore, I am confident that we can continue to reach agreement on all these matters. The focus of our efforts must be on doing that rather than on speculating hypothetically. Just as we achieved agreement on the Scotland Bill, I believe that further agreement will be possible.

Lord Reid of Cardowan: Perhaps I may clarify something in view of our earlier discussion. Apart from the process of Section 30, the substance will count as well. Will the noble and learned Lord be clear with the House that nothing in the Section 30 order arising from any discussions could validate changes in relationships inside the United Kingdom that affect the people of Scotland, and also those of England, Wales and Northern Ireland, unless they are consulted either through their Parliament or Assembly or in a UK-wide referendum? This is an important point and if the noble and learned Lord can clarify it, I will be very happy.

Lord Wallace of Tankerness: I entirely agree with the noble Lord that the point is important. He made an important distinction between a referendum on whether Scotland should remain part of the United Kingdom, and one on whether Scotland should remain part of the United Kingdom but under a different devolution settlement. He was right that it would have implications for other parts of the United Kingdom. In 1997 the Government of whom he was a member came to power with a substantial mandate to introduce devolution, not only for Scotland but for Wales and Northern Ireland. Parliament respected that mandate and passed the legislation. What we are doing in the Bill, although it brings changes, proceeds from the manifestos of three parties.

The noble Lord made that distinction, and it is the Government's view that there should be a single question on independence and that any other question would be of a different character and therefore would not sit well if it came in the double-question referendum that is sometimes suggested. The point that I was making was that the Scottish Government, in their consultation

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document, stated that their preference was for a question on independence. We should not lose sight of that, as sometimes it is easy to do.

We believe that a referendum on independence should address the single most significant issue that people in Scotland will face for many generations. That is why in the consultation paper we proposed that there should be a single question on independence.

Lord Reid of Cardowan: I am trying to be helpful to the noble and learned Lord. I urge him not to place too much emphasis on the fact that the Scottish National Party, which has independence as its core belief, expressed the view that it just wants a discussion and a vote on independence. If it had any other ideas about achieving a different strength or form of devolution, it certainly would not say this. Instead, it would point to an amorphous grouping in Scotland that supposedly demanded it, and would concede it reluctantly-because of course it wants nothing less than independence. The politics and the substance of this are as important as the process. Would it be legal to proceed with an alteration in the relationships of countries inside the United Kingdom without the endorsement of the United Kingdom Parliament or the people of those countries?

Lord Wallace of Tankerness: My Lords, I was asked on one or two occasions whether it would be legal to have a referendum on so-called devo-max without authority being conferred by this Parliament, either by a Section 30 order or by legislation on the Scottish Parliament. I was very clear that that, too, would change the relationship between Scotland and England and therefore it would be outwith the competence of the Scottish Parliament. I hope that that reassures the noble Lord.

As the noble Lord, Lord Reid, indicated, there are some who support approaches short of separation, such as devo-max or devo-plus. We must be clear that there has been no single, agreed definition of any of these terms. It is the Government's firm view that we should not intertwine questions about the future balance of devolution in the United Kingdom with the question of Scotland's place in the union.

Lord McConnell of Glenscorrodale: On the issue of seeking agreement with the Scottish Government on the nature of the question to be posed on the ballot paper, are the Government willing to look at my suggestion as a way not only of compromising between the two positions outlined by the United Kingdom and Scottish Governments but of producing a clearer answer so that people can understand with absolute clarity what they are voting for, and everyone afterwards can accept and understand the result? The question on the ballot paper should be posed not as a yes/no question, either for independence or for remaining within the union, but as a choice between two statements, the first being that Scotland should become an independent country and the second being that Scotland should remain part of the United Kingdom, with voters asked to put a cross on the ballot paper beside

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the statement of their choice. It would be consistent with the form of words used in the 1997 referendum. It would also give everybody a chance to campaign for their own positive choice, and for them to accept afterwards that the result was fair and not skewed by who had the choice between yes and no in advance.

Lord Wallace of Tankerness: The noble Lord makes an interesting and constructive proposal. I agree with the object of what he is proposing: it must be a question that is fair and brooks no division or challenge afterwards. This is perhaps relevant for the next group of amendments on the role of the Electoral Commission. It has an important and tried and tested role to play in this, so perhaps this is an issue that we will return to on the next group of amendments.

Lord Neill of Bladen: Someone said that the question, or part of the question, might be, "Do you consider the referendum to be legal?". That would be a fatal question to put. It is an extraordinarily difficult legal question, and there is no reason why the ordinary voter should have a view that is entitled to any weight on that. However, he will certainly be asked whether he wants to have one country or two, in the language there is for that. To ask, "Do you think it would be legal?", would be a mistake.

Lord Wallace of Tankerness: My Lords, I do not think anyone is suggesting putting on the ballot paper, "Do you think it is legal?". That would ultimately be a matter for the courts to determine. The collective view is that we should find a way forward that, as best as anyone can, puts that question beyond doubt. That is why we recommend a Section 30 order as the best way of achieving that.

Let me make progress and allow others to contribute. Early analysis of the consultation responses shows clear support for a referendum with a single question on independence. We will take this support for our position into discussions on the Section 30 order. We must be clear that the Scottish Government in their own consultation paper state that their preference is for a single question on independence.

Finally, on the amendments that consider whether a referendum on independence should be held in Scotland or across the United Kingdom, I readily recognise that a decision for Scotland to leave the United Kingdom would have significant implications for those left in the remainder of the United Kingdom. However, it has already been articulated by the noble Lord, Lord Reid, that the question of whether Scotland remains part of the UK or becomes independent is for the people of Scotland alone to answer.

The noble Lord, Lord Foulkes, said that we should set some targets. I hope that in this debate and the debate on the next group of amendments the Government can get a flavour of what your Lordships believe are the important targets and issues that we should strive to achieve in subsequent negotiations.

The Duke of Montrose: The Minister has been most helpful in explaining the Government's position. There is one extra element that it would be interesting to

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know about: would the Order in Council be specifically limited to one referendum? Multiple referendums would raise even more seriously the problem of the involvement of the other parts of the United Kingdom that the noble Lord, Lord Reid, is worried about.

Lord Wallace of Tankerness: My Lords, I am quickly trying to look at the draft Section 30 order that was attached to the consultation. It provides for just one referendum.

Lord Sutherland of Houndwood: May I ask the Minister a question? He may not want to answer it, but clarification would be helpful. He referred to the Government's belief in the importance of a single direct question. Is that a belief or a sticking point? There is a big difference between the two, and for some of us it would be a sticking point. That is the point raised by the noble Lords, Lord Reid and Lord Foulkes. We have not yet solved the West Lothian question with the current legislation. This Bill will enhance that question in the minds of many people across the whole of the UK. If we were to go further in some undefined form of devo-max, the difficulties would be greater, so I take him back to his point about fairness.

7.15 pm

Lord Wallace of Tankerness: That is an important question. If other noble Lords want to make their contributions, I will reply to it and other points when winding up the debate.

Lord Williamson of Horton: My Lords, I have sat through the three and a half hours of this debate. Fortunately, Hansard records our words but not our accents. If it did, it would have to have a little asterisk against mine because, apart from a very brief intervention by my noble friend Lord Neill, I am the only person with a non-Scottish accent who has participated in the debate.

I shall make one point, but it will be quite short. I thank the Minister for what he said in clarifying the Government's position. It is extremely important. In so far as conditions are going to be set for the referendum in the way in which it is presented in the Section 30 Order in Council, it is extremely important that when we finalise that position, we still carry the support, trust and confidence of the people of the other countries of the United Kingdom that the referendum will be fairly drawn up and monitored. There is more than one party to this referendum. There are the Scottish people and there are the people of the United Kingdom as a whole, and confidence in the political process is important.

For that reason, I will say briefly that although these issues are going to turn up-as we know now, in the Section 30 Order in Council and not in this Bill-none the less the points that are raised in the amendment moved by the noble Lord, Lord Foulkes, and that also arise in his Amendment 94C are extremely important. I emphasise that it is extremely important that we stand by the points that are set out in these amendments. The first is that we are talking about whether Scotland should become independent of the rest of the United Kingdom. There must be a clear question on the ballot paper and in the order. The referendum must be

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carried out in accordance with the provisions of the Parliamentary Voting System and Constituencies Act 2011 and the draft must be laid before each House of Parliament. The two further points in Amendment 94C seem to be extremely important. The timing must be made quite clear. It cannot be left ambiguous. The question must be equally explicit. I think that the question that the noble Lord, Lord Foulkes of Cumnock, has put forward in that amendment is excellent.

We need to stick to these points, although I have this terrible feeling, based on a long period in public life, that when we come to negotiations-and there will be negotiations in relation to this Order in Council-gradually a little change will come in. It will not be exactly as it started off, and by the time we get to the end we may find that we are not carrying fully the confidence of all the people of the United Kingdom. Those four points are extremely important to me. They are negotiating points that we need to stick to. We have to be extremely careful that we do not just fade away into something that is much too mushy. We need to stick to the clear points that we have often discussed here. They are extremely valuable and must be carried into the Order in Council.

Lord Forsyth of Drumlean: I shall speak to my Amendment 88, which is part of this group. It may help save your Lordships a little time. I am grateful to my noble friend for the statement that he has just made. As I see it, the position is quite clear: the Government are not going to use this Bill as a vehicle.

I tabled my amendment on 13 September, six months ago. Since then, quite a lot has happened. I tabled it because I thought we needed to resolve once and for all the question of whether Scotland should remain part of the United Kingdom, and I thought that the First Minister would use his period in office to drive a wedge between Scotland and the United Kingdom. Nothing that I have seen in the past six months has done anything other than to consolidate that view. It is therefore very important that we get this matter settled, that we concentrate on whether Scotland wishes to remain part of the United Kingdom, and that issues of devo-max and the rest are kept to one side while we do that.

I entirely agree with the noble Lord, Lord Reid, who intervened twice while the noble Lord, Lord Foulkes, was introducing his amendment to point out that devo-max means creating a federal parliament and an English parliament. He is absolutely right to say that that would need to be subject to approval by the rest of the United Kingdom.

We are concentrating here on how to get the Scottish question resolved one way or the other. Seeing how the noble Lord, Lord Foulkes, has suddenly started speaking to a script, I suspect that there is probably a degree of agreement between the Front Benches on the way forward on this. I hope there is. The noble Lord, Lord Browne, shakes his head, but the noble Lord, Lord Foulkes, was certainly speaking to a script, although after three pages we returned to normal service. I suspect that the three pages may very well reflect the view of the Opposition, but we will hear from the noble Lord, Lord Browne, in due course.



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The point is that there is a consensus in this House that we need to have a referendum; it needs to have one question-

Lord Foulkes of Cumnock: I can let the noble Lord, Lord Forsyth, see my script and he will see that it is in my own handwriting and no one else's.

Lord Forsyth of Drumlean: Yes, I just wondered who dictated it. I am sure it is the noble Lord's own work; it is just that it is such a change of position in such a short time. We have discussed this ad nauseam and it is perfectly clear that there is agreement in this House that there should be one question and that the referendum should be conducted by the Electoral Commission and no one else.

I like the question that is in the amendment moved by the noble Lord, Lord Foulkes, but I am perfectly content for that question to be determined by the Electoral Commission. That is where we may end up. My preference would be for it to be decided by the Government, but I can see how that would create difficulties. The important point is that this whole process needs to be regulated by the Electoral Commission and needs to be conducted under the rules that have been established in statute for the conduct of referenda. I am very happy not to move my amendment and not to spend any more time talking about referenda in the context of this Bill, because this Bill is clearly not going to be used as the vehicle.

My noble and learned friend has been brilliant in his negotiations with Mr Alex Salmond, but I am not absolutely persuaded that Mr Alex Salmond is going to agree to a Section 30 procedure that meets all the criteria. The point that was made by the noble Lord, Lord Williamson, really needs to be taken into account. We do not want any shilly-shallying or giving way on these important points of substance. This is very important.

Mr Salmond does not want to have a referendum on independence because he knows that he will lose, and I am anxious that my noble and learned friend may be optimistic about reaching agreement. However, given his track record, he may well be able to reach agreement: in which case, fine. If he is not able to reach agreement, we will have to have a referendum Bill in the next Session of Parliament that delivers these things. I regret that, because unless there is agreement between the Front Benches to take this through the House reasonably speedily we will have another six or seven months of arguing about process, about the question and about who should run it, whereas I want the debate to be about what happens to Scotland's young people, the jobless, our businesses, our defence, people's pensions, and our country as a United Kingdom.

If we are going to go down this track, I very much hope that the negotiations will not be particularly extended. I believe in competition but, honestly, competition between consultation papers is a bit rich. The Scottish Government's consultation finishes in May. If this is the route that we are going to go down, let us hope that, at a reasonably early stage in the new Session of Parliament, either we will have reached agreement with the Scottish Government on using

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Section 30 or the Government will have brought forward a Bill that is taken through both Houses speedily and delivers the opportunity for a decision to be made. I would have preferred it if we had used this Bill to achieve that because we could have got on with it, but given the Government's Statement and the fact that we have to deal with all amendments by next Wednesday, it is perfectly apparent that that is not going to happen. I am content not to press my amendment.

The Earl of Caithness: My Lords, I have put my name to the amendments tabled by the noble Lord, Lord Foulkes, and my noble friend Lord Forsyth. As my noble friend Lord Forsyth has just said, these amendments went down last year, long before the UK Government sent out their consultation paper, let alone the Scottish Government bothering to send out theirs.

I am not in the least bit fearful of a referendum in Scotland but I am worried about the consequences. The break-up of the United Kingdom at the behest of a minority, which might prejudice the majority, is something of great concern. As the noble Lord, Lord Foulkes, has said, it has huge implications for the rest of the United Kingdom. I am told that when Czechoslovakia divided in 1992, some 30 treaties and 12,000 legal agreements were required. There is going to be a huge amount of work resulting from a decision to have an independent Scotland, if that is the one that is taken.

I hear what noble Lords have been saying about this being a matter for Scotland, and indeed it is, but it is such a big matter that the referendum in Scotland should then be followed by a referendum in the UK. There are huge implications for the rest of the UK; for example, in Brussels, where our ability to get a blocking minority at the Council of Ministers will be altered because the number of votes that we have will be reduced. I spoke about this in an earlier debate. It might very well threaten our permanent seat at the United Nations.

There are a lot of reasons why it is so important that the United Kingdom is kept together, which, if it is broken by a minority, will have huge implications. That is why I have put forward my Amendment 89, which says that the referendum in Scotland should be advisory and could be implemented only if it was agreed in the rest of the United Kingdom. We are sleepwalking into a whole lot of issues that have not been discussed, the implications of which nobody fully understands, and which the vast majority of the United Kingdom will not have a say on.

My Amendment 90 is an amendment to Amendment 88 and says that if the vote in a referendum held in Scotland is for a separate Scotland-I do not say "independent Scotland" because Scotland is about as independent a country as you can get-but that if the people of Orkney and Shetland vote to remain in the United Kingdom, they should be allowed to do so.

The obvious argument in favour of that is the argument that has been expounded about Scotland, which I have just spoken about. Here we have a minority of people in the United Kingdom saying "We want to become separate" or "We could want to become separate". The rest of the United Kingdom has to accept that, as the noble Lord, Lord Reid, thinks is right. I am saying

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that if Orkney and Shetland decide that they want to stay in the United Kingdom-although that is not the only alternative for them-their wish should be granted.

When this amendment was put down, it raised a lot of concern from the usual rent-a-quote SNP MSPs who jumped up and down and said, "This is Westminster dictating to us in the far north". No it is not; it is merely giving a chance for democracy. There is a fear in the far north of the centralisation that has taken place in Edinburgh.

7.30 pm

Let me declare quite an old family interest, which it is important to declare for the record. The family links with Orkney and Shetland start in 1379 when at Marstrand near T√łnsberg in Norway, King Haakon VI invested and confirmed my ancestor Henry Sinclair Roslin as Earl of Orkney and Lord of Shetland. He was required to defend Orkney and Shetland and, if required, provide Norway with military support. It is important to remember that Norway controlled Orkney and Shetland. For the next 91 years, we served two monarchs-the kings of Norway and the kings of Scotland. In 1455, William Sinclair, the 3rd Earl of Orkney was also created Earl of Caithness.

After that, things started to change. In 1468, Orkney and Shetland were pledged by King Christian I of Denmark, who was also King of Norway, as the payment of the dowry of his daughter, Princess Margaret, who was to marry King James III of Scotland. As a result of that, we had to forfeit our title of Earl of Orkney. In 1472, there was an Act of Parliament to annex Orkney and Shetland to the Scottish Crown.

Scotland as we know it today did not become Scotland until 1472. Looking at the timeline, one will see that for about 600 years Orkney and Shetland were under Norwegian or Scandinavian rule; for 235 years, they were under Scottish rule; for 292 years, they have been under Westminster rule; and for 13 years, they have been under joint Westminster and Holyrood rule.

Moving forward to the present day, the history that I have just outlined explains why in 1979 the people of Orkney and Shetland voted against a referendum. In 1997, they voted very narrowly in favour but the people of Orkney voted against the tax-raising powers. There is a totally different culture in the Northern Isles, which has been evidenced by DNA tests that show that 60 per cent of the people of the Northern Isles are of Norse descent. That is not just on the male side but also the on female side. Further research in 2005 showed that as many women came over from Scandinavia to populate Orkney and Shetland as men. It was not a takeover bid by males; whole families moved over, and settled and integrated into Orkney.

Recently, there has been a slight change in the SNP position. After six months of castigating me for what my amendment proposed, in the past couple of days I have seen that the SNP has now admitted that Orkney and Shetland might be able to stay out of a separate Scotland should they vote against independence. In a recent interview, the SNP's rural affairs spokesman, Angus MacNeil, admitted that if that was the case, that part of the oil in the Orkney and Shetland basins, would remain with the islands.



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Although my amendment proposes that Orkney and Shetland might be able to stay within the United Kingdom should they so wish, there are other options. There is outright Shetland independence and Shetland exceptionalism, which the current Convenor of the Shetland Islands Council has been promulgating. There is of course the opportunity to become a Crown dependency. One further interesting fact is that, in January, the debate at the Althing was on the motion that Shetland's future lies in an independent Scotland. That was defeated. In that debate, the people of Shetland clearly indicated that they did not wish to become part of an independent Scotland.

As this seems to be the only occasion on which we are going to be able to discuss referendums, will my noble and learned friend say what discussions he will have with Orkney and Shetland? Of course, there is no better person in this House in a position to hold those discussions to make certain that their voices are heard, recorded and, if necessary, taken into account in the Section 30 order. That is hugely important because there is, without question, a feeling in the Northern Isles, as there is in the far north of Scotland, that the centralisation that has taken place since devolution has been to the detriment of the north. If one looks at some of the recent articles, until recently, to say that one was more pro-Scottish than pro-British in Shetland led to a lot of condemnation because of its traditions, its culture and the way in which it has felt separate and rather remote from the rest of the United Kingdom.

If we cast our minds back only a year to the Parliamentary Voting System and Constituencies Bill, one will recall the argument forcefully made by my noble friend Lord Fowler to keep the Isle of Wight as one unit. It received a huge amount of support and he won his case. I am merely saying to my noble and learned friend, let Orkney and Shetland decide if they want to do their own thing and how they should be allowed to do it when it comes to the referendum.

My next amendment deals with the island of Rockall, those uninhabited rocks out to the west of the United Kingdom. I appreciate that in 1972 the Island of Rockall Act received its Royal Assent. At that time, it was administratively made part of the isle of Harris, which was then part of Inverness-shire. But I shall go back a little further than that to what happened when people landed on Rockall on 18 September 1955. A plaque was placed on Rockall on that day by people off HMS "Vidal", which read:

"By authority of Her Majesty Queen Elizabeth II, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of her other realms and territories Queen, Head of the Commonwealth, Defender of the Faith, and in accordance with Her Majesty's instructions dated the 14th day of September, 1955, a landing was effected this day upon this island of Rockall from HMS Vidal. The Union flag was hoisted and possession of the island was taken in the name of Her Majesty. [Signed] R H Connell, Captain, HMS Vidal".

Lord O'Neill of Clackmannan: Does the noble Earl anticipate there being a polling station on Rockall and the like? We are dealing with matters of rather greater significance than these flights of geographical fancy.

The Earl of Caithness: My Lords, I do not anticipate a police station-



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Lord O'Neill of Clackmannan: A polling station.

The Earl of Caithness: In fact, I do not anticipate people living there. But what is important are the oil exploration rights around Rockall, which have huge implications. What I want to ask my noble and learned friend is what takes preference. Is it Her Majesty's instructions to raise a union flag and it is taken for the union, or is it an Act of Parliament which gives administrative rights so that the island of Rockall is part of Scotland? That ought to be decided. I would say to the noble Lord, Lord O'Neill, that these are the sorts of issues that we need to be clear about when it comes to the referendum. If oil is found within the waters of Rockall, let us have a clear mandate as to who owns it and who is going to have responsibility for those areas, and indeed defend them against attack, perhaps by terrorists, if the oil is developed.

My last amendment in this group is to Amendment 94C, another amendment tabled by the noble Lord, Lord Foulkes of Cumnock. It concerns the second question about the fiscal autonomy of Scotland, for which I know he did not get much support. I want to ask my noble and learned friend what the situation would be should Scotland vote to become a separate country from the United Kingdom. My amendment provides that Scotland should no longer be allowed to use the British pound sterling. I do not see how Scotland could use the same currency as England if it did not have a common Government. That has been the problem with the euro. My noble friend Lord Forsyth has argued strongly that we should not join the euro. Attempts have been made by many politicians, including the present Chief Secretary to the Treasury, to get us to become part of the euro and much more integrated. However, the decision not to become part of the euro has clearly been vindicated. In the event of Scotland becoming a separate country and not having the same Government, it would be quite detrimental both to the remainder of the United Kingdom and to Scotland to have the same currency. It has not worked in the past and it will not work in the future. I would like my noble and learned friend to confirm that Scotland would not be allowed to use the British pound sterling.

That would not be something sensational for Scotland to do because in the days of King David I, somewhere between 1140 and 1150, the weights and measures and the currency of Scotland were based by Act of Parliament in Caithness. It was decreed that there should be a common and even weight for the pondus Cathaniae, so it would be quite simple for Scotland to go back to that.

7.45 pm

The Earl of Mar and Kellie: My Lords, I want to ask my noble and learned friend a question to which I do not know the answer, so maybe he will be able to help me. The noble Lord, Lord Reid of Cardowan, talked about the need for a UK-wide referendum to deal with issues such as devo-max. I could probably go along with him on that, but I recall that Jersey, Guernsey and the Isle of Man have a status which is equivalent to devo-max, and I do not think we had a referendum to let them get to where they are.



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Lord Reid of Cardowan: I did not say that there had to be a referendum but, if there was a discussion about a change in Scotland's place inside the United Kingdom, either that had to be done by agreement between the Parliaments or by a referendum that went wider. In the case of the previous referendums, there was agreement within the UK Parliament and then the referendums were held. The situation has now changed because there is a Parliament in Scotland and Assemblies in Wales and Northern Ireland. One presupposes that a decision will be taken on being inside or outside the union and the result of that decision meaning that Scotland should stay inside the union. I have no principled objections to entering into discussions about changing the nature of the relationship, but that has to be decided either by the peoples of the UK or by their representatives in the Parliaments. That is probably the only legal way to do it, and it is the only fair way. The first question, on whether Scotland wishes to leave or stay, is one for the Scottish people on their own, but the next question is one either for the peoples of the United Kingdom or the various representative bodies of those peoples.

The Earl of Mar and Kellie: My Lords, I am most grateful for that advice. Does the noble Lord, Lord Reid, believe that Jersey, Guernsey and the Isle of Man have devo-max?

Lord Reid of Cardowan: I would be able to understand that if I knew what devo-max is. I am presupposing that if there is a subsequent discussion on the decision to stay in the United Kingdom, some of it will be on what the vote is actually about. I hate to add pigs and pokes to porridge-enough euphemisms have been used-but one of the problems with devo-max is that, since it affects the relationship between the peoples of the United Kingdom, it would have to go to the peoples of the United Kingdom or their elected representatives. Also, at this stage no one knows what devo-max, devo-plus or any of these topics other than staying in the UK or leaving the UK actually constitutes. How on earth that is put to a referendum is beyond me, and therefore it reinforces the fact that there should be a clear, fair and legal decision on one issue, after which there may or may not be discussions between the representatives of the various peoples about changing that relationship. At that stage, presumably, devo-max may represent what the islands the noble Earl referred to already have or it might refer to something entirely different. Part of the problem is that at the moment we have no idea of what it refers to.

Lord Forsyth of Drumlean: My Lords, the difference is that Guernsey, Jersey and the Isle of Man do not send Members of Parliament to the House of Commons.

The Earl of Mar and Kellie: I suppose I should continue to look for advice: did they? I also note that Jersey, Guernsey and the Isle of Man have almost complete autonomy, including on foreign policy and the Treasury. The only thing they do not provide overall is their own defence.

Lord Lang of Monkton: My Lords, I intervene briefly in the debate simply because Amendment 88, tabled by my noble friend Lord Forsyth, also bears my

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name. I begin with an apology because I have been detained away from the House all day and indeed had not expected to be able to get back in time for this debate. Therefore, I speak with some diffidence because I have heard only half of the wind-up speech made by my noble and learned friend to the last debate.

This amendment was tabled when the United Kingdom Government were taking no clear interest in what was going on in Scotland, when the First Minister was being given a completely free run, and when there was a clear need for the Government to get a grip on this matter and represent the interests of the whole of the United Kingdom. That is what the amendment hopes to stimulate, and certainly there has been a lot of progress since then. I wish that I had heard all that my noble and learned friend was able to say this evening but, from the reaction to it, I understand that quite a lot of useful progress has been made.

What seems absolutely necessary is that whatever manoeuvring takes place involving a Section 30 order or whatever else may come along, we have to have a watertight situation in which the Scottish Executive cannot manoeuvre to break away from the commitment that we all now have to holding a referendum in Scotland, with clear wording that forces the issue on whether or not Scotland should remain part of the United Kingdom. That point has been effectively made by a number of speakers today. I particularly agree with the comments made in the last debate by the noble Lords, Lord Williamson and Lord Reid.

My reason for intervening now is to draw my noble and learned friend's attention to what my noble friend Lord Forsyth said when he indicated that he was willing to withdraw his amendment but sought certain clear and specific assurances and undertakings. He made the case clearly and I shall not attempt to repeat it or improve on the language he used. However, I urge my noble and learned friend to respond directly, clearly and unambiguously to the request that he made.

Lord Maclennan of Rogart: My Lords, at the conclusion of this long debate, I thank my noble and learned friend for what he has contributed so far.

Events have moved rapidly in the past few days and have made it extraordinarily difficult for the House to keep abreast of what is going on. However, my noble and learned friend has made it clear from the beginning that the referendum which is held will have to be legal, fair and decisive. How does he intend to enable the United Kingdom Parliament to satisfy itself that the process is legal, fair and decisive and that the questions being put to the electorate are legal, fair and decisive?

There are many questions about fairness and decisiveness in particular. My noble and learned friend has gone quite far towards satisfying us that there is now a broad consensus on what is legal but, with a Section 30 order, there is some difficulty in being certain as to how fairness and decisiveness might be achieved. I recall in earlier debates about referenda an issue about the proportion of the electorate that would be required to reach a decisive conclusion. It is a matter on which people will have differences of view and it is therefore important that we know what the Government are proposing. If Scotland was to oscillate

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in its views, as it might, and if large numbers of people did not vote, that might not contribute to the decisiveness of the outcome. I hope that that will be taken into account.

In earlier debates we also considered who should be the electorate. There is an inherent unfairness in precluding from such a significant referendum Scots people who are working abroad with no real property owned in Scotland. It is a difficult question to resolve but we would like to at least consider that the Government have addressed the issue.

Many of these questions, no doubt, will be referred to the Electoral Commission, as is appropriate, but Parliament's input into this is at least as important. A government agency should not have the final determination on whether or not what is being put forward is acceptable on the grounds of it being fair and decisive. I hope, consequently, that there will be an iterative discussion in Parliament over the next few months about the process and the criteria to which the Minister has attached himself. They have been supported by others but they are not necessarily as clear as they need to be if we are to decide how this process is to be concluded.

Lord Empey: My Lords, the noble Lord, Lord Williamson of Horton, said that up until his contribution, with the exception of a brief intervention by the noble Lord, Lord Neill of Bladen, no voice other than a Scottish voice had been raised in the debate. I agree entirely with the point made by the noble Lord, Lord Reid of Cardowan, that the Bill and the prospect of independence for Scotland affects substantially everyone in the United Kingdom.

The noble Earl, Lord Caithness, made a point about Rockall which brought a response from the noble Lord, Lord O'Neill, who is not in his place at the moment. I remind the House that in the late 1980s or early 1990s, a would-be politician in the Irish Republic changed his name by deed poll and ended up calling himself Dublin Bay Rockall Loftus. He went to place an Irish flag on Rockall and promised that he would visit the island every year to stake his claim. That gentleman has since passed away but the anecdote illustrates the fact that others claim the island as a base. Of course, the concept of oil and natural gas also arose at that stage. The point is not quite as flippant as some people think; in fact, it could be significant.

The implications for the rest of the United Kingdom are substantial but, sadly, there has been an obsession with the personality of the First Minister in Scotland and we should get away from that. As the hymn writer said:

"Time, like an ever-rolling stream,

Bears all its sons away".

We are thinking here of the long term, of the implications for generations and of the economic implications for the people of Scotland.

However, there are implications for others. For instance, a large part of our energy supply comes through Scotland via pipelines and interconnectors. There is the question, which we discussed last Friday, of access to airports and their status. That is a huge issue for Scotland too, because obviously connectivity is vital to the Scottish economy.



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I hope that we can move the debate on to the key issue: that is, what is in the best interests of Scotland? Of course, it is its decision, but let us also take into account that there are implications for the rest of us, some of which have been mentioned. The status of the United Kingdom would be drastically changed in the event of Scotland leaving it. I tabled a Question to the Minister some time ago about what name we would give to Great Britain if Scotland was not part of it. The noble and learned Lord, with his great experience in these matters, answered by saying that he was not expecting such an event to take place. I hope that he is right. Nevertheless, these simple questions are left in the air. We have to go beyond the process and get down to the real issues. What is the economic future for the people of Scotland? What are the implications for the rest of us? I hope the debate can move on to those issues.

I strongly support the point made by the noble Lord, Lord Reid of Cardowan. When we had the referendum in Northern Ireland there was a decision by the United Kingdom to implement the results of the referendum, and that became the Northern Ireland Act 1998. Since then, Parliament has ratified a series of intergovernmental agreements that were politically negotiated. At every stage in that instance, the Irish Government, their Parliament and ours were involved. Every part of the United Kingdom had a say in the arrangements that we were permitted to enter into. That emphasises the point made by the noble Lord, Lord Reid. Yes, a decision on independence is for the people of Scotland. We all have an interest in anything other than that and should have a say in it through our representative Parliament. If that is not possible, there is another route open to us.

8 pm

The point is well made that if you go beyond the basic, fundamental question of independence, you move into an entirely different area of activities and responsibilities where more than the people of Scotland are affected. As they are our own kith and kin, I sincerely hope that the people of Scotland do not go down that road but we have got to get on to the main issue of the debate-the rights, wrongs and benefits of it. We hope that the people of Scotland, who must be free to make their own decision, reach one that will help strengthen the United Kingdom and not tear it apart. That would weaken all of us. We are stronger together than the sum of the individual parts. Ultimately, I hope that that is the direction that we travel in.

Finally, when the noble Lord, Lord Kerr, was in his place, he pointed out to the Minister that there was an absence of punctuation. I remind the Minister that a speech was made some years ago by the noble Lord, Lord Brooke of Sutton Mandeville-he is not in his place-in which he said that Britain had,

The noble Marquess, Lord Lothian, who is also not in his place, proceeded to write a book about that sentence, making the point that we in Northern Ireland took the wrong meaning from it because of the punctuation. That goes to show that when dealing with these matters

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one has to be extremely careful what one says. The small print and, in this case, the punctuation can be just as important.

Lord Neill of Bladen: Is the noble Lord, Lord Empey, contemplating circumstances where there would be referenda in countries other than Scotland? He said Parliaments, their representatives and the people would have to make up their own minds in their own countries. That was English people, the Welsh Assembly and so on. Supposing that these problems arise, does he envisage by the phrase "another route" that there might be a referendum in England, Wales and Northern Ireland?

Lord Empey: I hope that that would not be necessary. I certainly believe that the best outcome is that Parliament itself, which is a combination of representatives from all parts of the United Kingdom, should be where those decisions are made. The noble Lord, Lord Reid, raised the possibility that, for whatever reason, that might not be possible. I find it hard to envisage circumstances where it would not be, but if Scotland's relationship within the United Kingdom changed, whether as devo-max, devo-plus or whatever, and it was not possible for Parliament to agree on how that could be implemented, then under those circumstances the rest of the United Kingdom should be consulted. Yet I find it hard to envisage circumstances where Parliament cannot resolve that.

Lord Reid of Cardowan: Perhaps I can help the noble Lord. I, too, have reservations about the fact that, if there was a discussion about some different form of devolution, it would come to the UK Parliament to decide. I have an inkling that if the effect of such discussions at some stage in the future was to effectively constitute a federal Britain, then Parliament might well think that that was a constitutional issue of such magnitude that the people should be consulted. I merely give that as a possibility.

Lord Neill of Bladen: An obvious difficulty arises once you get into consulting constituents of other countries-England, Wales and Northern Ireland-which is: in what order do you take the referendum? What effect will it have if, we assume, in Scotland the referendum is passed with acclaim but other countries, such as England and Wales, say, "No, it is very damaging and we are against it"?

Lord Reid of Cardowan: I hesitate to start discussing another referendum when we have spent so long on this one. To try to take the hypothetical situation, Scotland wishes to stay inside the United Kingdom and the Scottish Parliament or people wish to go on to discuss further powers. The negotiations conclude with what is effectively a federal system in the United Kingdom that affects Wales and Northern Ireland as well as Scotland. Then, one option is for the British Parliament to address that. Another might be, hypothetically, to put it to all the peoples in the UK at the same time as a referendum on the constitutional settlement. The important point is that the first decision

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has to be a simple one: "Do you want to stay inside the union, or be outside it as a separate nation state?". That is a decision for the Scottish people alone.

Lord Browne of Ladyton: My Lords, I hope that noble Lords will forgive me if, in the interests of attempting to be brief-I have tried this before and it has not worked-I do not make reference to their contributions to the debate in any great detail. I shall also resist the temptation to go down many of the hypothetical routes or cul-de-sacs that have opened up in the course of the debate. I will try to concentrate on the nub of the issue.

I do that principally because, as the noble Lord, Lord Forsyth, indicated in his opening remarks, there is now a great degree of unanimity across the House about where we are. It may have taken us much longer than it should to get here, and that may be because, as the noble Lord, Lord Lang, pointed out, for a time it was not clear what lead the Government were to give on these issues. That is now much clearer. It may also be that we had, to a degree, a hangover from the past in the sense of the Scotland Bill, which I think we were committed to seeing through. Managing all these things together was challenging and difficult. I do not envy the noble and learned Lord and his colleagues in the Scotland Office having to work their way through this. I congratulate them on getting us to where we are to date. There are still challenges ahead and some of those have been identified in this debate. Given that there is a significant degree of unity and unanimity across the Committee on how we should approach this and the challenges that face the Government, it does not seem very fruitful to pick through all the possibilities. Apart from anything else, I know that that would just encourage Members of the Committee to have other ideas. They might want to make interventions and develop other lines.

I listened carefully to the Minister's contributions this afternoon. I carefully read the Written Statement which his right honourable friend the Secretary of State for Scotland laid today and which was referred to in this Committee. From the degree to which the consultation has been reported either by the noble and learned Lord or in the Ministerial Statement, or from other pieces of information that are now allowed, we seem to be able to come to some conclusions about where the Government ought to be, and we can encourage them to continue on this path in their ongoing discussions with the Scottish Government.

It appears that the Government have comprehensively won the argument about legality. I do not think there is any question about that. I was privileged to be present when the noble and learned Lord spoke at length on this issue at Glasgow University. He was persuasive then, and the consultation document is persuasive. Since then, the Scottish Government have tried to undermine that advice, but unsuccessfully-so much so that the Deputy First Minister, Nicola Sturgeon, went to the same location, ostensibly to deliver a competing lecture on the issue, and ended up avoiding the question altogether. I understand that during her speech on independence and its virtues, she referred to one text-book supporting the view that she and her fellow Ministers held about legality, and that she was

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intervened upon or questioned by an undergraduate who pointed out to her that his instructions, when he appeared as a student at the university, were that you should never be in a position where you have to quote a text-book to support a legal proposition as that was just bad law, and she was flummoxed by it. If she was beaten by an undergraduate at Glasgow University, perhaps she should give up trying to make the argument.

The Government appear to have won comprehensively the argument on legality, and they also appear to have done so on the argument that we have to have this referendum as soon as practically possible. That is now being supported by growing evidence from those in business and other walks of economic life in Scotland. They suggest that evidence is now emerging that the uncertainty about Scotland's future is starting to damage investment in Scotland, and consequently jobs and people's incomes.

The Government appear to have comprehensively won the argument about the question. I do not think there is any doubt that everybody is of the view that it is best to have one clear question-so much so that the Scottish Government were forced to concede that point in their own consultation document, at least as a headline, although they did exactly what my noble friend Lord Reid of Cardowan suggests. They created a consultation with an amorphous group of people in Scotland, to whom they said: "If you persuade us that we need to go further and have another question, we will reluctantly concede to that but our position is that there should be one question". I will come back to the issue of the question. I am not in a position to judge between the competing questions that have been proposed in our debate this evening, but there is a mechanism for working out the appropriate, fair question. We should at least begin that process now, so that when proposals are made to the Electoral Commission and to others who have to take responsibility for adjudicating to some degree on questions, they will be in a position to do that.

The Government appear to have comprehensively won the argument that the referendum ought to be run if not by the Electoral Commission then at least according to the rules that it sets and for it to be accountable to the Electoral Commission. I would prefer it to be run by the Electoral Commission. If I have not covered all the bases relating to the issues of contention, then somebody should point that out to me, but I think that is it. It appears that the Government laid out their stall, found support across Scotland and won the argument comprehensively, and now are able to say, "Not only do we know that we have won the argument but here is the evidence in the response to the consultation showing we have won it". That puts the Government in a strong position, but in negotiating terms it puts them in a difficult position because it does not leave them very much room for manoeuvre, but they should not have very much of that on these issues.

I am inclining to the position that I have always been in about legislative consent Motions regarding the Bill. It is that the Scottish Government, inevitably and for political reasons, will have to come to that position too. As they have gone out and tried to

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sustain arguments in other areas, they have found that increasingly difficult, and their credibility is being undermined. I suspect that in the negotiations, which I hope will not take too long, the Scottish Government will be brought to that position.

8.15 pm

Listening even more carefully to the noble and learned Lord, it now appears that we will not be using this Bill as a vehicle for legislating for a referendum in Scotland, and I agree with that. This Bill is about devolution, and it should remain about devolution. We should not muddy its waters by using it for another purpose. Apart from that, a Section 30 order is the right way to go because it is an established mechanism for transferring the power to the Scottish Government. It is tried and tested, and it involves a level of buy-in by the Scottish Government that should prevent them complaining in future about what they have agreed to. It may not, but at least it provides a political framework where they can be held to account for the consequences of the agreement and we can avoid all these arguments about imposition. If we have a process that they have to buy into to create this opportunity, which we all now want to see, we can stop all this nonsense talk about diktats from London and imposition by Westminster. They will have to buy into it.

Lord Foulkes of Cumnock: I can understand why my noble friend says that using this Bill to discuss or legislate for a referendum might not have seemed appropriate. However, if the amendments had not been put down all those months ago by the noble Lord, Lord Forsyth, and myself, and if the pressure had not been put on the Government, does my noble friend think that we would have had two consultative documents? Does he think that we would have achieved what we have achieved today? Is there not extra advantage in putting down amendments, even though at the end of the day they may have to be withdrawn? Does it not achieve something in the end, and has something not been achieved in relation to this?

Lord Browne of Ladyton: I thank my noble friend for his intervention, although I have no idea what the answer is to the question that he asks. We get many amendments that allow us to explore issues that are of less relevance and importance to the people of Scotland, but I certainly welcome amendments that allow us to explore issues that are important. Through their amendments, my noble friend and the noble Lord, Lord Forsyth, have been utterly diligent on this Bill. They deserve a great degree of credit for the amount of work that they have put into preparing amendments, by which they have created opportunities for some very good debates in Committee. They will be a quarry for the future for many good arguments that can be put forward about the positive nature of the United Kingdom.

To go back to my point, the noble and learned Lord says, "Not this Bill", and I agree. He says that the preferred option is a Section 30 Order in Council, and I agree. The consultation reveals some very good and compelling arguments in some of the responses about why that is

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the right way to go. I have adopted some of them. The noble Lord, Lord Forsyth, asked the Minister, "What if there is no Section 30? Where does that leave you?". The noble and learned Lord answered, "If agreement cannot be reached, we need to consider other options". I understand why that form of words is the most that he can give your Lordships.

Lord Forsyth of Drumlean: Why?

Lord Browne of Ladyton: The noble Lord, Lord Forsyth, asks me why. The simple answer is: because he is a government Minister. The noble Lord should know that, and I am sure that he was adept at giving those sorts of answers himself when he was at the Dispatch Box.

Lord Forsyth of Drumlean: I never really felt much constrained by collective responsibility, as the noble Lord will recall. My noble friend Lord Deben is indicating that he agrees, which is a bit alarming. I thought that the noble Lord was going to say that the Minister could not say this because he did not want to put a gun to the Scottish Government's head, but it is quite important that it is clearly understood that we are determined to resolve this question and that we have the lines that we have discussed. It is also clearly understood-and I understand where the noble Lord is coming from-that we would much prefer to do this on an agreed basis and for the Scottish Parliament to legislate, but at the end of the day this is going to be done.

Lord Browne of Ladyton: I am sure that, from the point of view of the record and those who read it, it is probably better that the noble Lord says this and is not contradicted from the Dispatch Box, rather than that those words be put into the mouth of a Minister. I do not want to go too far down this road.

My point is that there are precious few options anyway. Without persuading, badgering or compelling the noble and learned Lord to go any further than the words that he wants to use, it is clear to me and, I think, to everyone who has heard this debate that the options are limited. Whatever option the Government choose in future if that set of circumstances arises, there will be an opportunity for your Lordships' House to have a detailed debate on the way in which the referendum is conducted.

That leaves us with the challenge of how we achieve that debate if it is a Section 30 Order in Council. We have been teasing out from the Government some concessions regarding that with proposals that have been made-one from my noble friend Lord Sewel and some from others-about iterations. However, it would be helpful if the noble and learned Lord indicated, perhaps even repeating what he said before, that something will be done to structure a process that allows the content of the order to be debated at some length here and in the other place before it gets to the point where it is set in stone and has to be either accepted or rejected and cannot be amended. I have so much faith in the noble and learned Lord, from the years that I have known him, because of his reputation before I knew him and from my dealings with him, that I know

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he will do his best to deliver that. If he gives the House an undertaking that some process will be found, I will accept that and play my part in that process.

Lord Forsyth of Drumlean: This is all very sensible and I have no problem with any of it, but will the noble Lord say a bit about the timetable? How long will this process run for? I would be horrified if we found ourselves coming back here at the end of the year with this matter still not resolved. Does he think that this needs to be done by the Summer Recess? He said earlier that it should not take too long. How long is too long?

Lord Browne of Ladyton: Clearly it could be done by the Summer Recess, and that would be my preference. It would be contradictory to issue a consultation document and argue for the resolution of this issue as soon as reasonably practicable and then put practical blocks on that being done because we cannot get through the process here. We in this Parliament have all had experience of dealing with things in an emergency. In the context of Northern Ireland, for example, in order to maintain momentum in the peace process or to respond to circumstances, we have taken legislation through each House in one day. So if there is a will there is a way, and there ought to be a will because this is the most important question that the people of Scotland have ever been asked-or at least since 1707-and, as we have heard repeatedly from noble Lords, it has serious implications for other parts of the United Kingdom. People have lots of investment in this. The Government should treat this as a priority and find a way forward. We have stuck to a timetable that is associated with the consultation that the Scottish Government have issued, and to respect them we must observe that timetable. Beyond that, though, we need to move as quickly as possible.

With regard to the noble Earl's three or four amendments, I think we were all interested in the history lesson that we had about the islands of Orkney and Shetland, the observations about Rockall and indeed the argument about a complementary referendum for the United Kingdom after the Scottish people have had their say, if they determine to leave the United Kingdom. Like other attempts to amend the Bill, the complementary referendum falls down on the next question, which is: if the Scottish people decide to leave and the rest of the United Kingdom wants to keep them, how do you keep them in the United Kingdom? Unless you were going to ask that question, why would you hold the complementary referendum? I listened to my noble friend Lord Reid explaining the necessity for dealing with these issues in series. Many of us who have been in this debate consistently had got to that point a while ago. I read in some of the responses to the consultation attempts to explain this by analogy, but the best analogy that I have heard for this is that if you are a member of a club and you choose to leave, that is a decision for you, but if you are a member of a club and you want to change the rules, that is a decision for all the members of the club. That seems to be common sense. The analogy belongs to Sir Malcolm Rifkind, by the way; maybe he got it from someone else, but he said it to me and I thought, "That's exactly the position".



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Consulting all the other members of the club about changing the rules, if that is what we choose to do in future, will be a complicated and difficult process because there is a lot to be done if we enact the Bill. First of all, we have to work out the exact implications of what we have already devolved to the Scottish Parliament. We have learnt a lot in this Committee about Clause 28, which is quite substantial devolution. We have to persuade those people who are good at making up phrases to describe what they want and what it means-they had their opportunity with Calman to come forward and explain what all that meant, and precious few of them appeared-and then find some mechanism beyond the separate party mechanisms of finding an inclusive, all-party process of measuring whether all this is in the best interests of Scotland and the rest of the United Kingdom. Then perhaps we can decide how we are going to ask for approval from the people of the country for that deal if we come to some recommendation. That, however, is a process for another day; it cannot be done in the context of this Bill.

I shall deal with the noble Earl's other two amendments about the islands. My suspicion was that what lay behind those amendments was oil, which was perhaps doing a disservice to the noble Earl as I listened to him explaining the history of the islands and his knowledge of the island of Rockall and how it was claimed for the United Kingdom. He was quite candid about the issue towards the end of his remarks. I say to him that if that is the intention of any person in relation the Bill, that is not a game that people on these Benches will play. The challenge that we face is to persuade the people of Scotland to stay in the United Kingdom for good, positive future reasons. If we cannot meet that challenge, I will be no part of telling the voters of Scotland that if they vote for independence the UK will take away their oil. Starting down that line would be utterly counterproductive.

I must caution the noble Earl. Whatever the underlying motivation may be for these amendments-respecting the wishes of the people of the high north with regard to the United Kingdom, or the history of the island of Rockall, which is much more chequered and less specific than it first appeared-now that he has linked this issue to oil, I ask him please not to repeat these arguments in Scotland, as they will damage our ability to keep the union together.

The Earl of Caithness: That was not my argument. I was responding to an intervention by the noble Lord, Lord O'Neill. My argument was not about oil. That was not my intention at all, particularly with regard to the Orkney and Shetland amendments. As for Rockall, I just wanted to know what the legal position is.

8.30 pm

Lord Browne of Ladyton: I am glad to hear from the noble Earl that that is the case. The legal position is that the island of Rockall would not be part of the United Kingdom if it were not so close to Scotland. If we break the relationship between Rockall and Scotland, we will lose our basis in international law for claiming it in the first place. We should be very careful about that.



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Lord Wallace of Tankerness: My Lords, I thank all noble Lords who have taken part in this very useful and informative debate. There are clearly issues that go to the core of the referendum issue and what shape a Section 30 order might take. Before I address those points, it might be helpful if I pick up some of the more specific points that were raised, not least in the amendments spoken to by my noble friend Lord Caithness.

In many respects, his amendments proceed on the proposition that in the event of Scotland voting for independence there should be a subsequent referendum of the whole United Kingdom to ratify it. I certainly take the view, which was expressed by the noble Lords, Lord Browne and Lord Reid, that, to use the words of Sir Malcolm Rifkind-if it was he who coined them-"If you want to leave the club, the other members shouldn't really stop you". Therefore, it is not a tenable position to suggest that if Scotland were to vote for independence, there should be a subsequent vote in the United Kingdom as a whole. In that sense, the subsequent vote of the people of Orkney and Shetland and the position of Rockall would not arise.

That said, my noble friend has raised an important issue. He gave us the history of Orkney and Shetland's association as part of Scotland and, subsequently, the United Kingdom, having previously belonged to the Danish kingdom. The Government fully acknowledge the distinct community view of the people in the northern isles. This has been an important feature of previous debates on the Scottish constitutional position. The famous Grimond amendment on the position of the isles was taken through by my predecessor as MP for Orkney and Shetland, Jo Grimond. It led indirectly to the establishment of the Montgomery committee by the late George Younger when he was Secretary of State to look at the position of the islands' communities. In the debates on the 1997 referendum, distinct issues were raised on the position of Orkney and Shetland. When the Scottish Parliament was established, I was able to ensure through its Standing Orders that a policy memorandum should address the implications of policy for Scotland's island communities. I also recall that, in the 1987 general election, the Scottish National Party stood down in favour of a candidate from the Orkney and Shetland Movement, who stood on a platform of self-determination.

Since this issue clearly attracts attention, consideration and debate in the islands, we take as our starting point that we very much hope and believe that Scotland would not vote for independence and, therefore, that the position would not arise. For those eligible to vote in Scottish Parliament elections in Orkney and Scotland, our preference would be that that should be the franchise for the referendum. They will have the opportunity to express their views in the same way as those eligible to vote elsewhere in Scotland. As such, we do not see the need at present to treat residents of any particular part of Scotland differently from those elsewhere in the country when it comes to the consequences of the referendum result.

I can assure my noble friend and the Committee that I always listen carefully to the views of the people of Orkney and Shetland. I am in regular dialogue with those who represent them in both this Parliament and

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the Scottish Parliament. If they choose to make a case for formal constitutional recognition of their social, cultural and economic distinctiveness, I will certainly listen with care and respect. The coalition Government have a very soft spot for and pay great attention to the people of the northern isles.

Rockall is administered by the Western Isles Council under the jurisdiction of Scots law. The amendment, which seeks to change the original Island of Rockall Act 1972, could sow confusion. We do not believe that any of the issues raised by the various approaches to the United Nations about the continental shelf in any way change the United Kingdom's ownership of Rockall. However, we would possibly be in an anomalous position if there was independence and the amendment went through, since the Act would assert that Rockall was no longer part of Scotland but it would be administered by a Scottish local authority. I am sure that is not what my noble friend intended but he has raised an important issue. The United Kingdom Government are clear that Scotland is stronger in the United Kingdom and that the United Kingdom is stronger with Scotland in it. Although there is no one on Rockall to vote, we are sure that it, too, will remain part of the United Kingdom.

I say to my noble friend Lord Mar and Kellie that Jersey, Guernsey and the Isle of Man have a completely different constitutional history and relationship from that of Orkney and Shetland and, indeed, Scotland. The noble Lord, Lord Reid, pointed out that Jersey, Guernsey and the Isle of Man have never sent Members of Parliament to Westminster. Therefore, their constitutional position is somewhat different.

I have listened carefully to the points made in the wider and more general debate. I certainly found it valuable to hear the different views expressed, although there was considerable consensus among them. As I have set out, the Government believe that it is right that there should be a single-question referendum to address Scotland's place in the United Kingdom. We have set this out in our consultation paper and have sought views on it. The responses that we have received roundly support this position. Over the coming days and weeks, we will continue to assess in full the detailed arguments made in response to that consultation.

The amendment of my noble friend Lord Forsyth seeks to provide a referendum on independence, to be run by Westminster. It was supported by my noble friends Lord Lang and Lord Caithness. I made it clear that we would not look to use the Bill to deal with a referendum. As we made clear on page 19 of our consultation document, the future of devolution and independence are two entirely separate constitutional issues. The Bill is concerned with the former-the future of devolution-not the latter. It would not be in anyone's interests to confuse the two issues. Amending the Bill to deal with independence would risk that confusion.

As I have indicated, and as has been widely recognised, our clear preference is that a Section 30 order, agreed between Governments and approved by both Parliaments, should be used to give the Scottish Parliament competence to hold a referendum on independence. As I stated in my opening speech, that position is supported not simply by the volume of responses to our consultation

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but by a number of experts and key commentators, several of whom have already made their comments public. Professor Adam Tomkins of the University of Glasgow said:

"The section 30 solution is both the neatest and the most compelling solution available, not least because it offers to the Scottish Parliament the fullest possible say in the process".

The Law Society of Scotland has said:

"The Society is of the view that the making of such an Order should remove doubt as to the question of legislative competence and for that reason it may be desirable that an Order be made".

The response of CBI Scotland also makes that point. The Scottish Government themselves have accepted that a Section 30 order is the best way to remove what they acknowledge are doubts about the competence of the Scottish Parliament to legislate for a referendum on independence. With that weight of academic and legal support, support that goes much wider than that and the support expressed in your Lordships' House, we are confident that we will reach an agreement with the Scottish Government on a Section 30 order.

I shall pick up some of the points that were made in dealing with this issue. The noble Lord, Lord Neill of Bladen, asked how we would determine a referendum on federalism across the United Kingdom if different parts produced different outcomes. The noble Lord, Lord Reid, answered that point very effectively. The debate demonstrates why we need a clear referendum on a single question about independence. There should be one question in a legal, fair and decisive referendum to settle this matter before we turn to consideration of any further changes to devolution across the United Kingdom.

My noble friend Lord Maclennan raised the question of the referendum, the importance of the question that is asked and the use of the Electoral Commission. As set out in this Government's consultation paper, our view is that any referendum held in the United Kingdom would be subject to normal rules on referendums as set out in the Political Parties, Elections and Referendums Act 2000. The commission would have responsibility for overseeing the conduct and regulation of the referendum independently of the Government. Since the Electoral Commission was created, it has overseen three referendums, which have followed the framework of the 2000 Act, and no minimum turnout or threshold has been raised. My noble friend referred to the question to be asked and the noble Lord, Lord Foulkes, suggested that it might be loaded. On the wording of the question, again it is our view that any question for a referendum on independence should be subject to the same rigour and the same rules as a question in any other referendum. It is the Government's view that the Electoral Commission should fulfil the same role in reviewing the question as set out in Section 104 of the Political Parties, Elections and Referendums Act.

My noble friend Lord Maclennan also asked-I think that the noble Lord, Lord Browne, reiterated this but we are all interested in this-how this Parliament can continue to play a role in ensuring the content of any Section 30 order before it is formally put, and in ensuring that any question is fair, legal and decisive. We have made clear our view that a Section 30 order agreed between Governments and Parliaments is the

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best way to deliver a fair, legal and decisive referendum. Today's debate is an important part of seeking views from this Chamber, just as the consultation paper allowed a wider input. It has been suggested that a draft should be made available before debates in this Chamber on any Section 30 order. As I indicated earlier, these are important and interesting suggestions that we will certainly consider further. I know that the noble Lord, Lord Browne, understands that I cannot make any commitment on what will happen. However, I am sympathetic to the concept of identifying a means by which there can be further consideration, and indeed further accountability, on the part of Ministers who are negotiating these matters. We all have an interest in these matters and a part to play. It might be useful to engage with others in opposition and our colleagues in government to try to identify how best we might achieve that.

Lord Deben: I thank my noble and learned friend for giving way but does he accept that this is also very important for those of us who are not Scottish, and for the nation as a whole? We must feel that this decision, which will be made by the Scottish Parliament, is fair. I am not saying that we should have a say in it but we should understand the system. I hope he will ensure that the English, Welsh and Northern Irish are fully informed of the care with which this measure is being taken forward because there is a distinction between this decision and any decision that may be made subsequently on further devolution. The comments of the noble Lord, Lord Reid, on that are very important. However, we must make sure that the whole of the United Kingdom recognises that this process is fair, not just to the Scottish people but to the whole of the United Kingdom.

Lord Wallace of Tankerness: I have considerable sympathy and support for what my noble friend says. I think that the noble Lord, Lord Williamson, was the first Peer to express a view on this matter who did not speak with a Scottish accent, and the noble Lord, Lord Empey, also contributed to the debate. I am certainly acutely conscious-the Government are also acutely conscious of this fact-that although a referendum on independence is a matter for the people of Scotland to decide, nevertheless that process impacts on other parts of the United Kingdom. I believe that this is a two-way process. I believe that Scotland is better off as part of the United Kingdom. I also believe that the United Kingdom is better off with Scotland being part of it. Therefore, other parts of the United Kingdom have a legitimate interest in this matter. A Section 30 order would have to come before your Lordships' House, and indeed the House of Commons, for approval by the Parliament of the United Kingdom.

Lord Maclennan of Rogart: I am most grateful to my noble and learned friend for giving way. However, it would not be attractive if the Section 30 order, as a result of a process of negotiation with the Scottish Government, had been decided and then presented to Parliament. This is not a treaty for which we are seeking ratification; it is a legislative process. Although I entirely accept all the arguments that have been

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forward in favour of the Section 30 process, I think this United Kingdom Parliament will feel that it is representative of the country as a whole and would want to feed into the process of getting the thing right so that it is not seen as a divisive issue which we have to pull down after the event.

8.45 pm

Lord Wallace of Tankerness: I hear what my noble friend says and the force with which he says it. I suggested that we might try to identify a way in which we can engage without finding ourselves in a position where a negotiation takes place in public. As regards the point made by the noble Lord, Lord Sutherland, I do not think he would expect hands to be declared in any negotiations. Nevertheless, I do not want to be party to any mushy outcome, as I think was suggested by the noble Lord, Lord Williamson. We have been given a very clear steer by your Lordships' House, not least by the noble Lord, Lord Williamson, as regards what things are important.

Lord Forsyth of Drumlean: My Lords-

Lord Wallace of Tankerness: I hope that I may finish this point and then I will certainly give way. The noble Lord, Lord Williamson, said that there should be a clear question on independence. I hope that I have made that clear. He indicated that each House of Parliament should be involved in that, and a Section 30 order certainly delivers that. He talked about the timing. We may come back to that when we discuss the next group of amendments but the Government have certainly made it clear that they would prefer a referendum to take place sooner rather than later. These are important points which strengthen our position in any negotiation as they are genuinely supported across parties and those attached to no parties in your Lordships' House.

Lord Forsyth of Drumlean: I am finding it difficult to understand what there is to negotiate about if we are to have one question and the Electoral Commission is going to run the process. I can see that there might be flexibility on timing, which I do not regard as very important. However, I share the anxiety expressed by my noble friend Lord Maclennan, that you cannot negotiate on these central principles. The worry is that we shall end up with a fudge which we will not be able to amend because of the process. If my noble friend is saying, "Look, we've got the message; we are committed to"-the point was made to my noble friend Lord Lang-"a single question: the role of the Electoral Commission; and we are not going to move on that, and it will be part of the Section 30 order", all of us will be a bit less nervous.

Lord Wallace of Tankerness: I tried to note down a phrase that my noble friend used: "We are determined to resolve this question". We are determined to resolve this question. The noble Lord, Lord Browne, said that there was little room for manoeuvre. The Scottish Government have tried to describe the issues that we have set out to ensure a legal, fair and decisive referendum

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as having strings attached. We are not attaching strings. We are seeking provisions, such as in any other referendum, that ensures that it is delivered successfully, and where all sides agree that it has been a success and a decisive referendum. The manifesto commitment of the Scottish National Party was to have a referendum on independence, not devo-max. Therefore, if we say that we support a single question, we are actually seeking to give legal substance, a legal basis, for something that that party put in its manifesto. That is why our position is very strong as we go forward in seeking to achieve a Section 30 order.

Lord Forsyth of Drumlean: I do not want to prolong this. My question was: is the Minister saying to us, in pursuing his Section 30 route, that his position will remain the same-that there is no flexibility on these central issues of a single question and the role of the Electoral Commission?

Lord Wallace of Tankerness: There has been considerable agreement between the two Governments on the role of the Electoral Commission, which is vital. I do not believe that we would get a fair, legal and decisive referendum if we did not involve the Electoral Commission. A signal as to why I believe that we can reach an agreement is that already, since I made a Statement on 10 January, the Scottish Government have come a long way and acknowledged the position of the Electoral Commission.

I hope that I have tried to express clearly what the Government believe are the key issues on this matter, without saying-

Lord Maclennan of Rogart: I am grateful to my noble and learned friend. Will he leave it to the Electoral Commission to decide, in pursuance of this goal of decisiveness, that a majority of one vote would be decisive, or does he accept, particularly as regards the Cunningham amendment in the past, that Parliament ought to discuss that issue before it is put to the Electoral Commission?

Lord Wallace of Tankerness: I indicated that we are not generally disposed to supporting the idea of a threshold. My noble friend mentioned the Cunningham amendment, which related to a classic example of a referendum that many of us did not consider, at the end of the day, to be fair. Heaven forbid that we should ever find ourselves in a position whereby, after a referendum on independence, 30 years later one side or the other cries "foul"-with some justification. That is why the oversight of the Electoral Commission is very important.

The noble Lord, Lord Browne, and my noble friend Lord Forsyth raised a point about timing to which I should like to respond. I was asked what the timetable would be. We should press on with this matter very early indeed. We should be pressing for early engagement with the Scottish Government immediately after the close of their consultation. There have already been preliminary discussions between my right honourable friend the Secretary of State and the First Minister-indeed, the Prime Minister met the First Minister.

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I am sure that they will receive representations. If the Scottish Ministers think that independence is such a wonderful thing, why do they want a delay in getting it? This is a matter on which we should seek to make substantive and early progress to allow their referendum to conclude.

I will take one further intervention before I make my final point in response to the noble Lord, Lord Empey, and my noble friend Lord Forsyth.

Lord McConnell of Glenscorrodale: I thank the Minister for giving way. On the specific of timing, in response to the comment of the noble Lord, Lord Forsyth, that the timing perhaps does not matter as much as the issue of the Electoral Commission and the other issues we have been discussing, we should be cautious. It seems to me, with the Scottish unemployment rate now higher than in the rest of the United Kingdom and Scottish growth now below that of the rest of the United Kingdom, there is a degree of urgency about resolving this uncertainty. I hope that the Government will not de-prioritise the timing of the referendum in order to secure agreement on the other issues. Timing the referendum in advance of some date nearly three years away is vital if Scotland is going to get the growth and jobs that it badly needs.

Lord Wallace of Tankerness: The noble Lord makes an important point, which was reflected in some of the responses to the consultation, not least from SSE. My noble friend Lord Forsyth and the noble Lord, Lord Empey, made the point that we want the debate to move on to the substance of independence, a point also made by my noble friend Lord Caithness when he raised the question of the currency. Those are questions that the Scottish Government ought to be addressing. I entirely agree. It is important that we get the process resolved, and resolved swiftly, but it is equally important that we get on to the substantive debate about the benefits to Scotland from remaining part of the United Kingdom, part of the most successful union of nations, certainly in modern times, and possibly for even longer.

As noble Lords will be aware, my right honourable friend the Secretary of State has raised six questions with the Scottish Government to which we still await answers. Many others, including Members of your Lordships' House, have raised other questions. I am confident that when we get to the substance of the referendum debate, we can expose the weaknesses in the independence argument and do so on a positive footing by showing what is really positive about Scotland remaining part of the United Kingdom. On that basis, I invite the noble Lord to withdraw his amendment.

Lord Foulkes of Cumnock: My Lords, we have an excellent debate. We have had a very helpful reply from the Minister. We have another debate looming. I therefore immediately beg leave to withdraw my amendment.

Amendment 87 withdrawn.

8.55 pm

Sitting suspended.



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9.10 pm

Amendment 87A not moved.

Clause 43 agreed.

Clause 44 agreed.

Amendments 88 to 90 not moved.

Amendment 90A (in substitution for Amendment 25)

Tabled by Lord Foulkes of Cumnock

90A: Before Clause 10, insert the following new Clause-

"Taxes and excise duties

(1) In Part 2 of Schedule 5 to the 1998 Act, in section A1 (fiscal, economic and monetary policy) omit "taxes and excise duties".

(2) The Scottish Government shall pay funds to the Government to cover a proportion of the costs incurred as a result of policies made under reserved matters.

(3) This section shall only come into effect if it is approved by a majority of people voting in a referendum on the provisions held in accordance with Schedule (Referendums under this Act)."

Lord Foulkes of Cumnock: My Lords, in view of the excellent progress we are making not only in these proceedings but behind the scenes, and also the work that has been done by the Minister, I shall not move this amendment.

Amendment 90A not moved.

Amendment 91

Moved by Lord Foulkes of Cumnock

91: Before Clause 10, insert the following new Clause-

"Referendum about Scottish independence

(1) Her Majesty may by Order in Council, on the advice of the Prime Minister, cause a referendum to be held throughout Scotland about whether Scotland should become independent of the rest of the United Kingdom.

(2) Such a referendum can only be held within 24 months of the day on which this Act is passed.

(3) The question that is to appear on the ballot paper is-

Do you want Scotland to remain part of the United Kingdom?

(4) For further provision about a referendum held by virtue of subsection (1), Schedule (Referendums under this Act) applies.

(5) An Order in Council under this section may not be made unless a draft of the statutory instrument containing the Order has been laid before, and approved by a resolution of, each House of Parliament."

Lord Foulkes of Cumnock: My Lords, we have had a good debate on the whole issue of a referendum. However, there are one or two important amendments in this grouping that I think we should deal with very briefly.

The first is in relation to the Electoral Commission, which we dealt with earlier on. The noble Lord, Lord Steel, who explained to me that he was not going to be able to be here, has raised this issue as well. It is very important that the Electoral Commission determines this, and not the body that has been set up by the Scottish

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Government. The Electoral Commission has the experience, it has the authority and the respect. Questions in relation to the actual wording of the question on the ballot paper, the amount of finance and the control of financial expenditure and the conduct of the referendum should be left to the Electoral Commission.

The second point relates to the franchise. As I said in the earlier debate, it would be entirely wrong to change the franchise for this one referendum, just because the First Minister of Scotland thinks it would help him to get the right result. So we should stick to the arrangement that it is people over the age of 18 who are able to vote.

There is an interesting amendment by my noble friend Lady Taylor of Bolton which, if I understand fully, suggests that Scots who are now resident in England but who were born in Scotland and still have an interest should also have the vote. She is one of those concerned and one of the more famous Scots residing in England, a supporter of Motherwell Football club no less. There is a very credible argument for that point of view. I am not sure I agree with it exactly, but we certainly deserve to hear it.

There is also an amendment in relation to Scottish nationality in the name of the noble Lord, Lord Selsdon, who does not appear to be in this place at moment. If he were, I am sure he would make a very entertaining and interesting contribution to that amendment. I want to raise the West Lothian question with the Minister. The noble Lord, Lord Selsdon, has arrived so we look forward to hearing him in relation to his amendment. On the West Lothian question, a committee has been set up by the Government to look at whether MPs from Scotland, Wales and Northern Ireland should vote on purely English matters in the House of Commons. I contacted the committee to seek to give evidence and I was told that it is not taking evidence. That seems very strange, given that it is an integral part of the whole constitutional debate that is currently taking place and given that it has some knock-on relevance to the point that we are dealing with. Perhaps the Minister could persuade the committee that it would be wise to consider evidence.

9.15 pm

Lord Watson of Invergowrie: Before my noble friend moves his amendment, I wonder whether he would comment on the very interesting proposal made by the noble Lord, Lord McConnell, earlier this evening when he suggested that two questions be posed, so avoiding a yes or no answer on the ballot paper. I recall that in the 1997 referendum the words were "I agree that there should be a Scottish Parliament" or "I do not agree that there should be a Scottish Parliament", and that there was the same in respect of the tax-varying powers. Would my noble friend like to comment on that as a possible wording, which we all accept is very important, as it would avoid a straight yes or no answer to a question?

Lord Foulkes of Cumnock: My noble friend is a former Member of the Scottish Parliament, as I am, and I thought it was very interesting that the suggestion

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came from the noble Lord, Lord McConnell, himself a former First Minister of Scotland, as he has a great deal of knowledge about this. I think that is a very interesting suggestion, which I hope the Minister will feed into the discussions that are taking place. If the Scottish Parliament or Scottish Executive suggests one question and we are sticking to another one, perhaps there could be agreement on two counterbalancing questions-questions that have different outcomes-for which people could vote positively. In other words, no one would vote negatively; everyone would vote positively for their option. I think that is a very good suggestion.

The fact that these things have been suggested shows, as I hope my noble friend agrees, the value of these debates, the value of Committee stage and the value of the House of Lords. Earlier we were talking about tweets, and I have been getting tweets asking what right I have, as someone who is not elected, to make any comments on this. I can understand the politer ones that raise that question, notwithstanding the fact that I was an elected representative for many years. One of the answers is that debates in this place, as we have had today and previously, can come up with very useful suggestions which can move things forward in a very positive way. I beg to move.

Amendment 92 had been withdrawn from the Marshalled List.

Amendment 93(to Amendment 91)

Moved by Lord Steel of Aikwood

93: Before Clause 10, line 14, at end insert "and the Scottish Parliament.

( ) Such a referendum must be administered by the Electoral Commission."

Lord Steel of Aikwood: My Lords, I think this amendment has been overtaken by events. The Minister has made it clear that the referendum will be administered by the Electoral Commission and, therefore, there is no need for me to labour the point. That is very important. The First Minister of Scotland still has to recognise one thing: as he has a particular objective in mind in holding the referendum, he is not the right person to declare what the question should be. Any member of the public would accept that that proposition is correct. You cannot say, "The people must determine this, but I will tell them how to determine it". In my Amendment 93 to the noble Lord's Amendment 91, I have suggested that it should be by agreement and that the Scottish Parliament should be consulted and be party to how the question is drafted.

Equally, I disagree with the noble Lord-although I think a moment ago he almost resiled from certain wording-that we should lay down the question. I missed the earlier debate for which I apologise, but the noble Lord, Lord St John, and I had a longstanding appointment with the Prime Minister of Zimbabwe, Mr Morgan Tsvangirai. If you think we have problems in our coalition, you should hear his. I missed the substantive debate on the referendum earlier.

I think it is also important that the people of Scotland are beginning to get scunnered-if I may use a good Scottish word-by the endless argument from

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politicians, academics and economists about the process and what might or might not happen if Scotland became independent. This cannot go on for another three years. It is ridiculous.

Therefore the part of the amendment that I support is the suggestion that the time should be now. If not immediately, then certainly as soon as possible, we should get this issue out of the way. As soon as we get clear of the independence referendum, we can start, as the Prime Minister has said, serious discussion about how we can add to the devolution package, and that is very sensible.

We have got the Electoral Commission in the frame, so there is no need to press that. Choosing the question should also be a matter for the Electoral Commission, and I agree with the noble Lord, Lord McConnell, who has made this point before, that rather than having a yes or no and putting some people in a negative position, there should be two propositions from which people choose either to remain in the United Kingdom or to go independent.

If that is done, and done quickly, then we can get this issue out of the way and the Scottish Government should concentrate on what they were elected to do, which is to deal with the issues affecting Scotland at the moment: bad housing, unemployment, and the need for more investment in industry. These are the things people want. They do not want three years of argument about a referendum. They want to see a Government tackling the issues, both in Scotland by the Scottish Government, and in the United Kingdom by the UK Government. The sooner we get back to that realistic level of politics, the better.

The Earl of Caithness: My Lords, my Amendment 94E takes what my noble friend Lord Steel said a little bit further, and asks that the Electoral Commission set the question. It is quite clear that nothing the UK Government propose is going to be accepted by the Scottish Government, and nothing that the Scottish Government propose will be accepted by the UK Government.

Why not cut the politicians out? Let us ask the Electoral Commission not only to set the questions but to arrange all the counting, transferring the number of votes into a proper result that is based, exactly the same way the referendums were in 1979 and 1997, on each local authority area, rather than just Scotland. We would know that there would be a clear question-or questions, if we go down the route proposed by the noble Lord, Lord McConnell-but also that each area voted and how they voted, and that it was a fair process.

Taken out of the hands of politicians, it will not only be more acceptable to the people of Scotland, but in view of our earlier discussions, I think it would be more acceptable to the rest of the UK, who would feel that an independent authority is doing this rather than politicians.

Lord Selsdon: My Lords, I will speak to Amendment 96, if I am in order. I feel that because of my voice, I should give a brief introduction. My name is Malcolm McEacharn Mitchell-Thomson, and I carry the burden

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of being Lord Selsdon, which is actually registered in Scotland. I am also a Scottish Baronet. But on the business of one's past and the Scottish relationship, I ask: who is a Scot, and where or what is a Scot?

As noble Lords know, 5 million Scots live in Scotland, 400,000 or more live in England, and 40 million around the world. If we are to move towards having a referendum, I for one would like to be able to vote for the first time in my life-because by accident of birth, I have never had a vote-in a referendum. I have reason to believe there are many others in the world who will claim they are Scots who would like to be consulted in one form or another. This is why I tabled my amendment on Burns Night, and it was well received by many of the Burns associations.

It is a very difficult matter. If we do not consult, many people who are not in Scotland will feel that they have been ignored. My amendment draws attention to us. In this House, by accident or by recent legislation, we are deemed to be resident, ordinarily resident and domiciled in the United Kingdom. What happens to us if the referendum goes through and there is devolution? Are we still domiciled in the United Kingdom? Domiciled is an interesting concept. As an ex-banker, I know that there is no way I can be anything other than domiciled in Scotland. The reason is that, as your Lordships know, you take the domicile of your father at birth, which is your domicile of origin. Unless you physically and emotionally make a move to change that domicile to a domicile of choice, your domicile remains your domicile of origin. It passes through the male line if you do not change it. Therefore, there could be more people outside Scotland who have the right to vote than there are in Scotland.


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