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I personally am hooked there-line and sinker. I have not got rid of any property in Scotland. You have to cut off all your links and sell your properties and perhaps resign from your clubs. I have the advantage or disadvantage of having a lair. When you reach the age of 50, you receive from some smart Writer to the Signet a brown envelope containing your lair certificate. I did not know that a lair was a plot. I did not know also that as my family is international-my great grandfather was Provost of Edinburgh and my great-great-grandfather was the first Lord Mayor of Melbourne; my family fled Scotland to earn some money and were the biggest coal people in Canada, so I am spread and twisted across the world-I have two lairs, although there is only one of me. Furthermore, the McEacharn family has a mausoleum in Galloway. When I visited it, I was asked to make a contribution, although the stipend was originally drawn up at the turn of the century. The agreement was that we would effectively allow them to keep the motor mower and gardening equipment in there because there was plenty of room and we no longer had the same number of children as we had had in the past.

My point is simple. However the referendum is constructed, there should be some consultation among the Scottish community around the world to see what their views are. I believe that they are unionist at heart. It is not difficult to identify them because through the Burns society you can identify any Scot in the world, including those who like to pretend that they are

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Scots. One of the greatest benefits of Scotland is that relationship: the power and influence of Scots throughout the world. It is a Foreign Office that costs them money. It is also a relationship that brings interchanges, and one is pleased at the moment that there are more students coming to Scotland than there were. The dogs have not yet arrived, but more people wish to come there. So Scotland can prosper. It is not a question of coastline or anything like that; it is a question of attitude. Will the Government find some consultation formula that will allow us to consult Scots worldwide?

Baroness Taylor of Bolton: My Lords, unlike the noble Lord, Lord Selsdon, I do not have a lair. However, I was born to a Scottish father in Motherwell, Scotland. My grandfather was the chairman of Motherwell Labour Party, which may or may not be a recommendation. However, I have a Lancashire mother. After several years in Scotland, my mother won the battle and we moved to Lancashire. Many families share that kind of situation. Many Scots have moved away for work, education, sporting or other reasons. I tabled my amendment because I was concerned that, as the noble Lord, Lord Selsdon, suggested, a lot of people will feel that they are missing out on what they believe is their right to have a say in their heritage.

9.30 pm

When I tabled this amendment, my noble friend Lord Foulkes was indiscreet enough to mention it to a member of the press, and therefore there was a little publicity. I am not sure that I was grateful for that because it resulted in the usual barrage of e-mails and letters, but it threw up some very interesting situations. I shall quote just one: "I am a 30 year-old Scot born, raised, university-educated in Scotland and currently living in London. I would like to return in future. I have a large network of young professional Scots both in England and around the world. Those are people who have a significant vested interest in the future of Scotland and their decisions about their future lives may well be affected by the outcome of that referendum".

The amendment that I have tabled, which I do not claim to be perfect, would not give either of us a vote, because I have suggested that we use parliamentary election registers. There are many options. When I looked at the Hansards for the debate on similar issues in 1979 and 1997, it was intriguing to see the variations in voting procedures. We can use the local election register, which incidentally would allow noble Lords to vote. We have EU citizens, Irish citizens living in Scotland, and an overseas register, but you have to have lived in Scotland in the past 20 years to be on it. We have people who have property in Scotland, but it is not their first home. We have English people who have a second home in Scotland. It is a very complicated area. We could do with some clarity on this. My noble friend Lord Browne, who was Secretary of State for Defence when I was a Minister in that department, will well remember our difficulties in trying to get service personnel on to any electoral register. Many Scottish service men and women serving in the British

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Armed Forces may be resident for several years in England, yet, I suggest, have a very significant interest in this.

In the 1979 and 1997 elections, significant polls suggested that we should keep the register as simple as possible. I have looked up how I voted and, to my great relief, they were two of the rare occasions when as Leader of the House of Commons I did not vote. Whether that was subconsciously or consciously, I have no recollection, although I have been thinking about it. A referendum on independence is different from the referendums that we had on devolution all those years ago. This is a much more fundamental step. Listening to the whole of the debate today, that is one thing that everyone in this House agrees on. It is a far more fundamental step than the referendums in 1979 and 1997.

I hope that we are not going to be told that because of time or difficulties, this cannot be done. I would not suggest that we go as far as saying that anyone whose father was born in Scotland should be eligible. I would just go for people who were born in Scotland and are already on a parliamentary register somewhere in Britain. That would be feasible and would catch a group of people who have made a great contribution to Scottish life as well as to British life and people who might well feel excluded.

In the debates on the two previous devolution referendums, there were, as my noble friend indicated, many references to football, which seems to come up in all these debates. It was very interesting that in 1979, it seemed to be the Kenny Dalglish question: would he be allowed a vote? In 1997, it was whether Gary McAllister would be allowed one. Today, Scottish players are no longer predominant in English football, so we have to rely on asking whether certain managers could have a vote. My choice would be the manager of my English football team, Bolton Wanderers, namely Owen Coyle, who has distinguished himself in recent days following the frightening collapse of Fabrice Muamba at White Hart Lane on Saturday. That is a really good example of a Scotsman who has done everyone proud, and I am sure that we all send Fabrice Muamba every good wish for his recovery.

As far as the referendum is concerned, someone who plays football for Scotland but has a career in England or somewhere else would not be allowed to vote about the future of that country. Many other issues will come down the line-dual nationality, passports and security, as my noble friend mentioned earlier-but the simple point that I put to the Minister is that surely there is some way of finding a system whereby those who were born in Scotland can have a say on the future of the country of their birth.

Lord Selkirk of Douglas: My Lords, the noble Baroness has, as usual, made a very persuasive speech, and I look forward to the Minister's reply to the points that she has raised.

Amendments 93 and 98, in the names of the noble Lords, Lord Steel of Aikwood and Lord Foulkes of Cumnock, and the noble Earl, Lord Caithness, call for a much greater involvement of the Electoral Commission, which I strongly support, on account of two incidents.

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The first incident involved the noble Lord, Lord Steel of Aikwood. In the first election to the Scottish Parliament he and I were two of the last three to be elected in Scotland. The counters went on strike at 4.30 am because of the complexities of the proportional representational vote. As a result, we came back the next day and we were elected two out of the last three; the third was Robin Harper, the first Green candidate to become a parliamentarian. However, we did not know that 2,000 votes had not been counted.

When this became clear, with great alarm I wrote to the Secretary of State for Scotland, now the noble Lord, Lord Reid. He replied that he did not have the powers to do anything about it, but that we could take legal action if we so wished. Happily, the chief executive had thoroughly studied the matter, and whichever way the votes were counted all three of us would have been elected. As soon as we knew that, we had no desire to take the matter any further. I think that the votes have now been destroyed and it is impossible to rectify the matter. However, that incident should never have occurred and if the Electoral Commission had been involved, I believe it would not have done.

The other incident occurred during the devolution referendum in 1979. I remember vividly the late Robin Cook being very much involved because 2,000 electors had written "No" opposite the word "No" on the ballot paper, and the counting officer said that writing "No" opposite "No" meant "Yes". I actually believe that they meant "No". We asked to speak to the chief voting officer in Scotland but he would not come to the phone. There were murmurings of calls on television for resignations if the matter was to be swept under the carpet. He did come to the phone. He was not very good tempered but he said he would look into it. Within two hours, they had rectified the matter and the votes were counted as no votes. This was important in that referendum because it was on a knife-edge; the results were very close and regarded as somewhat inconclusive at the time.

I mention these two episodes to emphasise how very warmly I welcome the Minister's statement that he wishes to involve the Electoral Commission in an overseeing role. If you have a Government at Westminster who take one view and a Government in Edinburgh who take a different view, it is very important to have an impartial body that has both objectivity and expertise.

Lord Watson of Invergowrie: I wish to make some comments in relation to the amendments spoken to by my noble friend Lady Taylor of Bolton and the noble Lord, Lord Selsdon, in respect of who should have the opportunity to vote in a referendum on Scottish independence. Much as I respect my noble friend, I cannot agree with her premise that those who were born in Scotland and move to other parts of the United Kingdom or even further afield should have the opportunity to vote in the referendum.

At the time of the referendum, whenever it is-like many other noble Lords I hope that it is as soon as possible-it has to be a vote for people who are at that time living in Scotland. I am aware that that will involve a number of people, not least a considerable number that is reckoned to be about half a million

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people, who would describe themselves as English domiciled in Scotland, as well as people of various other nationalities who happen to be living and working in Scotland. If they are on the electoral register as EU citizens, I believe that they should have a vote.

The question of Scots who have moved-of course, the Scottish diaspora is considerable-beyond the confines of Scotland is a difficult issue in this situation. To some extent, I have some connection because my son has a Scottish father and an English mother but he was born in England. He is well short of voting age but the point is that many people in that situation would have an interest. In the future, he may choose to live in Scotland.

After leaving university, I went to live in England. I was living and working in England at the time of the 1979 referendum. I was not on the electoral register in Scotland, although I travelled home in the weeks immediately prior to the referendum every weekend to campaign vigorously for a yes vote. Even though I did not have a vote myself, it did not occur to me that there was anything wrong with that. I had chosen for whatever reason to leave Scotland.

It may well be that there are many thousands of people who, like my noble friend Lady Taylor, were perhaps very young when their parents left and they more or less had to go with them. I accept that they may not have made that decision but none the less on becoming an adult they would have the option to go back to live in Scotland if that is their choice. They are more than welcome to do so. For people who have left Scotland-I left, went back and left again-the situation is simple. You have to be domiciled in Scotland to have a vote on something as important as this. Just to say, "I am Scottish in my blood; I feel a Scot; and I do not feel any other kind of allegiance" is not enough.

A very interesting example was raised by my noble friend when she talked of the very impressive Bolton Wanderers manager, Owen Coyle, who I know. When I was a Member in another place, Owen and two of his brothers who were also professional footballers at the time were members of the Labour Party in that constituency. Whether he holds membership now, I do not know. I have not spoken to him for some years. But the interesting thing is that Owen Coyle, born and bred in Glasgow, played for the Republic of Ireland. He is an international but he played for the Republic of Ireland. It is not just as simple as saying, "He is a Scot, living in England and therefore he should have a vote". He has played for the country of his parents because they were Irish. Various issues muddy the water here.

The noble Lord, Lord Selsdon, introduced the concept of Scottish nationality, which is difficult to define in itself. He says that a person shall be considered to be of Scottish nationality if they are ordinarily resident or resident in Scotland, wherever they come from, however long they have been there and having made their home in Scotland. I would say that someone in that situation should be entitled to a vote in the independence referendum but to say that they have Scottish nationality is stretching it a bit. I do not think that that is the way to define it. I understand the point

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that he is making and, to some extent, I agree with that part of his amendment but not with the bit that follows.

To conclude, this is a matter of great importance to Scots wherever they live and they are of course spread throughout the world. At the time of the independence referendum, it cannot be justified to say that those people who, for whatever reason of many reasons, have left Scotland and have gone to live somewhere else should have a vote. The people of Scotland-but not just Scots of course-at the time of the referendum, I believe, should be those who make the crucial decision when the independence referendum comes along.

9.45 pm

Lord Maclennan of Rogart: My Lords, I would like to say how much I sympathise and agree with the speech of the noble Baroness, Lady Taylor. In the world in which we live, where there is great mobility, residence is not a true test of connection. It is much the easiest way to determine the outcome of a referendum but it is not necessarily going to reflect the views of those who care for Scotland and sense that they belong to it. In my former constituency, Caithness and Sutherland, because there is not a substantial amount of employment in the area, many local people go all over the world to use the skills that they cannot exercise in Scotland. But there is no doubt that they go back when they have completed their jobs, and if they have earned a lot of money, they go back earlier. That is a quite a common occurrence.

I could also talk about my siblings, all of whom feel very strongly that they are Scottish, but for various reasons work in different places. My younger brother works in Glasgow and clearly would be entitled to a vote. My middle brother works all around Britain but returns to Scotland whenever he is free to take a holiday. My sister has worked in Scotland, but she is widowed and now spends part of the time on her own in Greece. However, she still identifies herself strongly with Scotland.

What we are looking for is a referendum that actually reflects the views of those who consider themselves to be Scottish, but it is a difficult issue. I do not think we want just to snap up the easiest decision. I commend the suggestions made by the noble Baroness, Lady Taylor, and my noble friend Lord Selsdon for some clever consideration. If this is left to the Electoral Commission, I hope that it will not simply take the easy way out.

Lord Browne of Ladyton: My Lords, I have already had my say on the issue of different referendums quite extensively and there are only two aspects of our debate on these amendments that I have not expressed a view on, so I shall concentrate my remarks on them. First, I turn to the role of the Electoral Commission. A number of possible roles for the Electoral Commission are reflected in the amendments that have been proposed by noble Lords. It seems to me that the role of the Electoral Commission in relation to referendums is now settled. We had two referendums in 2011 and the Electoral Commission played a role in respect of them

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both which your Lordships' House seemed well satisfied with. I have heard no criticism of its role in terms of supervision.

It played a specific role in testing what has become known as the intelligibility of any proposed referendum question in relation to both of the 2011 referendums. I understand that the commission indicated in its response to the Government's consultation that it does not have the legal power to play that role in relation to the proposed referendum on Scottish independence and it has asked the Government to consider, as indeed have other consultees, using this Bill to give it that power so that it can get on with testing the intelligibility of the proposed questions. Of course, it could take all the questions that have been proposed in amendments and test their intelligibility on Scottish voters, focus groups and others. The commission is willing to do that job and I think that the Government should consider amending the Bill on Report to give it that power.

Otherwise, much as the proposals in the amendments before us are attractive and beguiling, I think that we should ask the Electoral Commission to play exactly the same role it has played in previous referendums, particularly the two which were conducted under legislation passed in this House and in the other place for the referendums held in 2011. There was endless debate about its role and agreement was reached before it set off on its work.

I say this for a very good reason: if we want the process that determines how the referendum will be conducted to be seen as legal, fair and decisive-and we expect now that that will be either in the context of a Section 30 order and the preparation for it, or some other option should the Section 30 order not be consented to-we have to avoid creating special processes or, dare I say, a special franchise for the election. The arguments of those who construct emotional, historical or family reasons for everyone who has an interest in the future of Scotland to be included in a franchise are very interesting. If we were to be all-inclusive we could find a way of doing so, but that would leave us open to the accusation that we are creating a special franchise in order to influence the outcome.

If the referendum is to be seen as legal, fair and decisive we should look to a pre-existing franchise, which is what the consultation did. It referred to the two pre-existing franchises in Scotland-the one for the United Kingdom Parliament and the other for the Scottish Parliament and for Scottish local government-and asked for opinions on which of the two those who responded to the consultation preferred. I am content with either of them but I veer towards the one for the Scottish Parliament. However, we can have that debate in the future when we come to look at the matter in the context of a decision, rather than in the context of a proposal, which is where we are at present.

With all due respect to my noble friend Lady Taylor, I know of the difficulties we had not only in persuading members of the Armed Forces to register but in facilitating that registration so that they could vote. I have great sympathy for people, particularly those in the Armed Forces, who are ordered to be somewhere rather than making the choice and thus being denied the franchise.

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We ought to look more generally at that issue to see whether we can resolve it and make it easier for members of our Armed Forces to exercise their vote. However, I resist the temptation to do that for this particular exercise for the reason I have articulated.

Lord Wallace of Tankerness: My Lords, this group of amendments has allowed us to look at a number of the practical, important issues which arise in the context of a referendum. As I indicated earlier, it is an opportunity for your Lordships to express views on this. Although we found consensus on a number of issues in the earlier debate, clearly on the issue of franchise there have been different views, to which I shall try to respond.

On a preliminary matter which I am not quite sure related to the independence referendum, the noble Lord, Lord Foulkes, raised a question on the so-called West Lothian commission, which is to look at the implications for the House of Commons of devolution. Its formal remit is to consider how the House of Commons might deal with legislation which affects only part of the United Kingdom following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales. The noble Lord asked about submitting evidence. I was not aware that it was not receiving evidence-I am not sure whether the noble Lord meant oral evidence or written evidence-but the commission that has been established is independent of government and I would be wary of trying to intervene. The commission should be free to undertake such work as it deems necessary to consider proposals for handling the parliamentary consequences of devolution.

A number of noble Lords-my noble friend Lord Steel and the noble Lords, Lord Watson and Lord Foulkes-raised the question of timing. The United Kingdom Government's firm view is that the question of Scotland's constitutional status should be resolved sooner rather than later. The continuing uncertainty about Scotland's future is damaging to Scotland and until the issue is resolved that uncertainty will remain and, I suspect, grow. In our consultation paper we asked for views on the timing of the referendum and the majority of responses were in favour of holding it sooner than the Scottish Government's proposal to hold it in the autumn of 2014. Recently, my right honourable friend the Secretary of State set out a timetable for a referendum to be held in September 2013. We believe that that is a practicable timetable and see no need to delay. That view has been expressed by others. CBI Scotland said:

"The timetable should certainly provide for sufficient facts and analysis to be made available to business and the wider public and for the issues involved to be fully considered but, on balance, we believe that the referendum can and should be held sooner than currently planned".

By "currently planned", I think it means the preferred date of the Scottish Government. There seems to be a general consensus in your Lordships' House on this.

The amendment of my noble friend Lord Steel would ensure that any referendum on Scottish independence was administered by the Electoral Commission. A number of colleagues and noble Lords expressed their

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support for this and, again, I think there was widespread support for it. My noble friend Lord Selkirk of Douglas gave some practical examples of when he believed that the Electoral Commission would have been of considerable benefit. I am sure we are not calling now for a recount of the Lothian regional vote in 1999. History might have been different in so many ways if there had been a different outcome there.

The Government's view is that it is right that the Electoral Commission should oversee the referendum. It is a well-established body, known to be credible, independent and politically impartial. As the noble Lord, Lord Browne, pointed out, two referendums in 2011 were overseen by the Electoral Commission without criticism. It has the experience and expertise required to oversee this referendum and can play a key role in ensuring that the referendum and its results are seen to be fair and decisive.

Previously, the Scottish Government suggested that they would create what they called a Scottish referendum commission to oversee the referendum, answerable only to the Scottish Parliament. As my noble friend Lord Steel indicated, it is not a particularly satisfactory position when one of the players nominates the referee. The United Kingdom Government believe it is unnecessary to create a new commission-undoubtedly, that would be done at additional cost-when the Electoral Commission is already in place and has demonstrated its capability. We are pleased that the Scottish Government now agree that the Electoral Commission should lead on the oversight arrangements for the referendum and we will continue to engage with the Scottish Government on this. Again, a number of responses to the consultation concurred with that.

Lord Forsyth of Drumlean: While my noble and learned friend has a drink, is this phrase of allowing the Electoral Commission to have "oversight" not weasel wording? Surely the Electoral Commission should be responsible for the overall conduct of the referendum campaign.

Lord Steel of Aikwood: Including the question.

Lord Forsyth of Drumlean: Yes, including the question. I notice that in the Scottish Government's consultation paper, which was then spun as involving the Electoral Commission, it was invited in as a kind of veneer of respectability. The Electoral Commission has to be the regulator. Is that use of "oversight" by my noble and learned friend weasel wording or does it mean what we all want it to mean?

Lord Wallace of Tankerness: My Lords, in our earlier debate on referendums, in response to an issue raised by the noble Lord, Lord Foulkes, I said that it is the Government's view that the Electoral Commission should fulfil the same role as it has in relation to UK Parliament referendums, as set out in the Political Parties, Elections and Referendums Act 2000. Its role would be the same in reviewing the question. My noble friend Lord Caithness raised this. The Electoral Commission's role is to advise and to oversee referendums. It is not appropriate for it to set the question and

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current legislation does not provide for it to do that. It is my understanding that the Electoral Commission would itself have concerns about doing that. The PPER Act 2000 sets out a clear role for the Electoral Commission that we believe should be respected for a referendum on independence: to review and report on the question. We believe that that is the right approach.

10 pm

The noble Lord, Lord Browne, asked about a possible amendment on Report to provide for the Electoral Commission to have a role now in relation to the question. We should recognise that the Electoral Commission already has the power to,

certain bodies under Section 10 of the 2000 Act. However, we share the noble Lord's view that the Electoral Commission should have full powers to review and report on any question, and we have set this view out in the consultation paper. I hope that makes it clear. It might be worth exploring-I can go no further than this-whether that Section 10 power to offer advice would allow a preliminary review. Without further research and a legal consideration of that, I would not want to express an opinion on whether Section 10 is wide enough to allow that, but it certainly gives the Electoral Commission power to,

certain bodies. I will certainly look at whether that offers an opportunity for the Electoral Commission to become engaged, because clearly until a Section 30 order is in place it would not have the power in relation to a Scottish referendum.

The area where we have had some difference of view relates to the franchise. I thank my noble friend Lord Selsdon-when he gave us his full name, I do not think that anyone would doubt his Scottishness-and the noble Baroness, Lady Taylor. I have learnt some things about her this evening which I had not previously appreciated: about her support for Motherwell Football Club and her own Scottish roots. It is the Government's view that the devolved legislature and local government franchise is the most suitable to use in the referendum. I do not doubt for one minute, and not just from the contributions we have heard this evening, that many Scots in the Scots diaspora wish to become involved. One can readily understand that.

I am sure that as a Leader of the House of Commons, the noble Baroness would not have been a rebel. However, as I think she said, the reason set out in the 1997 referendum for that franchise, which we seek to replicate, was its relative simplicity compared to the more complex ones to which she refers. Her amendment would provide that a franchise for an independence referendum would be for those who are eligible to vote in the Scottish Parliament elections, and for UK Parliament elections, if their birth was registered in Scotland. As I have indicated, we believe that it should be those who are on the register for local government and Scottish parliamentary elections.

My noble friend Lord Selsdon gave an interesting definition. No doubt that very fact would set up a lot of dispute and debate as to what constitutes Scottish

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nationality. There would be administrative difficulties; let us not pretend that it would not be otherwise. Importantly, we do not consider it appropriate to make changes to the franchise specifically for a one-off referendum, however important it would be-and there is no getting away from that. Changing the franchise may make some people feel that it has been changed to favour one outcome over another and, as I have said on several occasions in the debate, at the end of the day we want an outcome where, whichever way it falls, no one can cry foul. I obviously hope that it falls for Scotland to remain part of the United Kingdom. Those who would be complaining would say that the franchise had been manipulated but, if there was some suggestion that it had been changed in some way that was not consistent with a franchise that we already had, the losing side might well feel that there had been some attempt made to get one outcome rather than another. That would not be the basis for a decisive referendum.

Baroness Taylor of Bolton: I understand many of the difficulties that the Minister is describing, especially if the referendum is to be held earlier rather than later. However, will he take away the thought that perhaps we need to do more for the service men and women who are Scottish in origin and who are serving the whole of Britain, and who have no choice in where they are deployed? Maybe we need to do something more to make sure that they are registered properly, and then able to vote in such an important decision.

Noble Lords: Hear, hear.

Lord Wallace of Tankerness: From the reaction that the noble Baroness has had to that comment, it is clearly one that resonates across the House. I do not pretend that I have an answer to it, but she asked me to reflect on it and we certainly shall. I am not sure if it is practical but she makes an important point well, and it strikes a chord in the House.

I was going to make the point that I in no way underestimate the importance of the franchise, but it does not disqualify people from participation in the debate or the referendum. When the real debate comes, I sincerely hope that we will get contributions from other parts of the UK that have a view to express about how much they value our United Kingdom. I very much hope that Scots from the diaspora will express their views-maybe some that I do not agree with, but I am sure there will be many that I do-about how valuable over many years they and their families have found Scotland being part of the UK.

We believe that we should try to ensure consistency and transparency, which is why we have indicated our preference for a franchise based on the present one for the Scottish Parliament and local government. We will continue to seek agreement on that basis. With those assurances, I invite the noble Lord to withdraw his amendment.

The Earl of Caithness: My Lords, I am grateful for what the Minister said in reply to my amendment, which a number of noble Lords supported. I just wonder whether his mind is totally closed on the issue

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of allowing the Electoral Commission to set the question. A lot of us are still quite concerned about a Section 30 fudge on which we will have no say except a possible debate. A question could be negotiated behind closed doors in order to satisfy the Scottish Government, rather like the agreement over the past few days to which we were not party. We would have the same situation with a Section 30 order, and we would then have a question that we were not totally content with. Perhaps to avoid that situation, the Electoral Commission might be allowed to set the question. I know that the Minister had reservations about that but I hope that his mind is still open to being persuaded at a future time.

Lord Wallace of Tankerness: I hear what my noble friend says, but I ask him to reflect him on two points. First, it is my understanding that the Electoral Commission would not necessarily welcome that. Secondly, with regard to the point I was making about the franchise: if one seeks to do something different, what are the rules regarding the relationship between the Electoral Commission and the question under the Political Parties, Elections and Referendums Act 2000? If you try to do something different for a Scottish independence referendum, you could immediately open yourself up to a charge of trying to rig or manipulate it. The advantages of consistency in this area are important.

I am told that the Electoral Commission has not, and does not wish to, set a question as its role is properly to review the question and publish that review, which is important. I do not countenance any situation where the commission would not be engaged, nor where its view on a question would not be made public.

Lord Steel of Aikwood: My Lords, I beg leave to withdraw Amendment 93.

Amendment 93 (to Amendment 91) withdrawn.

Lord Foulkes of Cumnock: My Lords, we have had a fascinating debate ranging from the vicissitudes of the Lothian list elections, which I know only too well, to the lairs-both of them-of the noble Lord, Lord Selsdon. The importance that I attach to these debates is indicated by the fact that I have been here all evening rather than at St Mirren Park where I would have seen Hearts beat St Mirren by two goals to nil. Fortunately, the semi-final when, as my noble friend Lord Browne will know, Hearts will face Celtic is on a Sunday, so I will not have the problem that I have had tonight and I will be able to be there. Having said that, I beg leave to withdraw the amendment.

Amendment 91 withdrawn.

Amendments 94 to 94C not moved.

Amendment 94CA (to Amendment 94C) not moved.

Amendments 94D and 94E not moved.

Clause 10 disagreed.

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Amendment 95

Moved by Lord Wallace of Tankerness

95: After Clause 10, insert the following new Clause-

"Continued effect of provisions ceasing to be within legislative competence

(1) In section 30 of the 1998 Act (legislative competence: supplementary) after subsection (4) insert-

"(5) Subsection (6) applies where any alteration is made-

(a) to the matters which are reserved matters, or

(b) to Schedule 4,

(whether by virtue of the making, revocation or expiry of an Order in Council under this section or otherwise).

(6) Where the effect of the alteration is that a provision of an Act of the Scottish Parliament ceases to be within the legislative competence of the Parliament, the provision does not for that reason cease to have effect (unless an enactment provides otherwise)."

(2) After section 29(4) of that Act (legislative competence) insert-

"(5) Subsection (1) is subject to section 30(6)."

(3) In section 92 of that Act (Queen's Printer for Scotland), after subsection (4A) (inserted by section 16) insert-

"(4B) If, following an alteration such as is mentioned in section 30(5)-

(a) subordinate legislation is made, confirmed or approved under a provision which continues to have effect by virtue of section 30(6), and

(b) the making, confirmation or approval would be within devolved competence but for the alteration,

the subordinate legislation is to be regarded for the purposes of this section as being made, confirmed or approved within devolved competence.""

Lord Wallace of Tankerness: My Lords, the reason for disagreeing Clause 10 is that this proposed new clause will replace it. The amendment will widen the scope of the provision contained in Close 10 so that the savings provision does not apply solely in situations where legislative competence has been transferred to the Scottish Parliament only temporarily under a Section 30 order. It will ensure that the savings provision will operate where any alterations are made to reserved matters or to Schedule 4 to the Scotland Act 1998, whether by the making, revocation or expiry of a Section 30 order or otherwise-for example, by amendment in primary legislation.

There is widespread recognition that clarity is required regarding the status of Acts of the Scottish Parliament in the event that legislative competence is reduced. The amendment has been tabled following comments from the previous Scotland Bill Committee and the Law Society of Scotland. It will ensure that Acts of the Scottish Parliament that have been validly made within the legislative competence that existed at the time do not cease to have effect purely because of changes to the boundaries of reserved and devolved matters. Such provisions would cease to have effect only if this was provided for in an enactment.

The amendment clarifies that provisions contained in an Act of the Scottish Parliament that are no longer within the legislative competence of the Scottish Parliament will not automatically fall following that alteration of competence. Therefore, no gaps in the law will be created as a result. This means that a positive

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decision will need to be made to repeal provisions in an Act of the Scottish Parliament. This could be done in the legislation providing for the re-reservation or in separate legislation passed by the UK Parliament. As a result of this amendment, a provision in an Act of the Scottish Parliament that was once within legislative competence, prior to an alteration in that competence, will not for that reason alone cease to have effect. It will cease to have effect only if an enactment provides otherwise.

The wording of the amendment is intended to clarify two things. First, the previous operation of that ASP and anything done under it, up to point of the alteration in legislative competence, is not affected. Secondly, any alteration in legislative competence does not affect the continued future operation of the ASP, including any powers exercisable under it. For example, it would ensure that any powers of Scottish Ministers under an Act of the Scottish Parliament to make subordinate legislation would continue to be exercisable by them notwithstanding the alteration of legislative competence.

Proposed new subsection (3) of the new provision makes a technical amendment to Section 92 of the Scotland Act 1998, "Queen's Printer for Scotland", in consequence of the addition of the provision in proposed new Section 30(6) of the Act. I hope that the Committee will agree that this is a sensible amendment, which will strengthen the provision that was originally contained in Clause 10. I beg to move.

Lord Forsyth of Drumlean: I do not want to detain the Committee, but what problem does the amendment seek to remedy? Has something arisen? Secondly, if we proceed with a Section 30 order on the referendum, would this enable the power to hold future referendums to be retained by the Scottish Parliament?

Lord Wallace of Tankerness: My Lords, on the second point, a noble Lord asked me earlier-it may have been my noble friend the Duke of Montrose-whether it would be possible to have a Section 30 order that applied to just one referendum. The answer is that that is precisely what we plan in our draft.

The issue that the amendment seeks to address is that for some powers it may be thought expedient or

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wise to give the Scottish Parliament a temporary extension of power. I think I am right in saying that such a power was granted under a Section 30 order following the case of Somerville. We seek to make it very clear that if the Scottish Parliament passes legislation-as indeed it did under that power-under a temporary transfer from reserved to devolved power, it does not automatically repeal any legislation that has been properly and competently enacted when the temporary transfer of power ends.

Lord Boyd of Duncansby: My Lords, my noble friend has suggested that as I have sat here all night, I should at least say something. It seems to me that the amendment puts the issue of competence beyond doubt. However, I am not wholly convinced that this is necessary because it seems to me that once you confer competence, the legislative provision that flows from it will always flow from it even if you subsequently take back the competence, as it is the point at which the competence is exercised which is important, not what happens subsequently. Nevertheless, I note what the Minister says. For our part, we are content that he has put the matter beyond doubt.

Amendment 95 agreed.

Amendment 96 not moved.

Schedules 1 to 3 agreed.

Amendments 97 and 98 not moved.

Amendment 99 (to Amendment 98) not moved.

Amendments 100 to 102 had been withdrawn from the Marshalled List.

Schedules 4 and 5 agreed.

House resumed.

Bill reported with amendments.

Health and Social Care Bill

Returned from the Commons

The Bill was returned from the Commons with the Lords amendments agreed to.

House adjourned at 10.17 pm.

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