House of Lords
Wednesday, 16 January 2013.
3 pm
Prayers—read by the Lord Bishop of Exeter.
Property: Leasehold Valuation Tribunal
Question
3.06 pm
Asked By Baroness Gardner of Parkes
To ask Her Majesty’s Government whether they will review the workings of the leasehold valuation tribunal.
Baroness Gardner of Parkes: My Lords, in asking the Question in my name on the Order Paper, I declare that my interest is recorded in the register.
The Minister of State, Ministry of Justice (Lord McNally): My Lords, we have no plans to review the working of the leasehold valuation tribunal. However, later this year, the tribunal will transfer into the newly established property chamber in the First-tier Tribunal, in line with our recently published administrative justice strategic work programme. In addition to improved deployment of judicial resources, the tribunal will operate under new procedural rules, which will continue to ensure that all parties will have greater access to an efficient, proportionate and fairer system of justice.
Baroness Gardner of Parkes: Is the Minister aware that in the Housing Act 1996, when the leasehold valuation tribunal was set up, the aim was to make it within the reach of every leaseholder to be able, for the amount of £500, to bring his case to the tribunal? Is he aware that now many landlords—whether they win or lose, even if they have no hope of costs—are charging their heavy legal expenses back through the management schemes in the blocks of flats?
Lord McNally: I pay tribute to the noble Baroness’s long campaign on this issue. She was an active participant in the Bill that became the 1996 Act. She is absolutely correct that the right of the managing agent to claw back costs of litigation can be written into leases. This can be countermanded by an application to the court under Section 20C of the Landlord and Tenant Act 1985, but that has to be a proactive action by the leaseholder. We are looking at ways to make leaseholders more aware that, if such a clause is written into their lease, they have this power to take action to have it set aside by the tribunal.
NHS: Clinical Commissioning Groups
Question
3.09 pm
Asked By Lord Hunt of Kings Heath
To ask Her Majesty’s Government why the NHS Commissioning Board is discontinuing the poverty element in the funding formula for allocation to clinical commissioning groups.
Lord Hunt of Kings Heath: My Lords, I beg leave to ask the Question standing in my name on the Order Paper and declare my interests on the register.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, I can reassure the noble Lord that the board has not discontinued the poverty element of the funding formula. The board was concerned that while the formula provides an accurate model of healthcare need as currently met, if implemented it would target resources away from those areas with the worst health outcomes. It has therefore decided to give all clinical commissioning groups the same growth while launching a fundamental review of allocations.
Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Earl for that explanation and understand that a flat-rate increase is to be given next year on top of the existing formula. Will he assure me that if the national Commissioning Board, after this review, decides not to go down the route that the previous Secretary of State, Mr Lansley, wanted this review to take—namely, to take money away from the poorer areas and give it to the well off areas—it will see no interference whatever from Ministers in relation to that decision?
Earl Howe: My Lords, that is a very important principle. It is one of the reasons why we felt that the NHS Commissioning Board should be responsible for the allocation of resources to CCGs and not Ministers, to avoid any perception of party-political interference. However, the Government’s mandate to the board makes clear that we would expect the board to place equal access for equal need at the heart of its approach to allocations. That is why ACRA has been charged with developing formulae independently to support the decision that the board takes.
Baroness Jolly: My Lords, the first rule of funding is that recipients are never happy with their allocation. Given that, will the Minister assure the House that, with new configurations that we have with public health and CCGs, the model used will regularly be reviewed to ensure that it remains fit for purpose?
Earl Howe: Yes, my Lords. As I have indicated, as regards the NHS allocations, the board is clear that the model needs to be reviewed. That does not necessarily mean that it will need to change; the board will have to keep an open mind about that. Clearly, the board was not happy that the formula as currently constructed
best met future needs. As regards public health, I think that we are in a better place. As my noble friend will know, the allocations were announced recently and they provide for considerable real-terms increases everywhere around the country.
Lord Mawhinney: My Lords, if the Commissioning Board decides to change the present formula, will the new proposal be subject to public consultation before it is implemented?
Earl Howe: My Lords, ACRA, the independent committee, will take advice from all relevant quarters. I am sure that the advice it receives will be taken on board. I do not think that there will be a public consultation as such but, if I am wrong about that, I will write to my noble friend.
Lord Rea: Will the noble Earl reassure us that this new allocation committee will take fully into account the fact that poor people have worse health and, therefore, in an equitable system, it will cost more to include them in the full services that the NHS can provide? Will he reassure us that that will be taken adequately into account and that proper measurements will be made of the health differences between social classes?
Earl Howe: I can give the noble Lord that reassurance. ACRA is not a new committee; it has been long-established, and was a fundamental part of the previous Administration’s approach to funding allocations. I can say to the noble Lord that, by using diagnosis information, the formula that has been adopted for CCGs directly picks up a great deal of the increased prevalence of ill health due to deprivation. It also takes account of the proportion of the population in social housing and in semi-routine occupations, and the number of DLA claimants, which is closely related to deprivation.
Baroness Farrington of Ribbleton: Will the Minister assure the House that, if the board is able to find a formula more reflective of local need in terms of poverty and deprivation, the Government will look at it? They appear not to take such factors properly into account when looking at the revenue support grant which provides services for people in poverty. I declare an interest as someone who lives in Preston, Lancashire, whose needs are being met with a government cut. I am sure that the noble Earl would not approve of that.
Earl Howe: I am pleased to say to the noble Baroness that there has been no cut at all in the allocations to clinical commissioning groups. Indeed, there is a real-terms increase everywhere in the country. I can also reassure her that this will not be a matter for Ministers; it will be decided independently by ACRA advising the board and the board taking the decision.
Lord Cormack: My Lords, I congratulate my noble friend on becoming a privy counsellor.
Lord Cormack: It is a very well-deserved honour. Does he have regular meetings with the chairman of the board, and what plans he has for that?
Earl Howe: I am very grateful to my noble friend. I have meetings from time to time with the chairman of the NHS Commissioning Board, as does my right honourable friend the Secretary of State. I also meet regularly with the chief executive of the Commissioning Board. It is important that there is that interaction between Ministers and the board if there is to be proper accountability.
Lord Laming: Will the Minister say whether poverty was the only element that was removed and, if so, why was this singled out?
Earl Howe: Poverty was not removed. As I hope I have outlined, there are various criteria reflecting deprivation which are most certainly relevant to the fair allocation of resources. Age is clearly another factor, because it would be difficult to envisage an allocation formula that did not take it into account; it is the key factor in determining an individual’s need for healthcare. That is not to say that other factors such as deprivation should not continue to be considered.
Baroness Williams of Crosby: I would add congratulations from these Benches to the noble Earl on his very well-deserved honour which reflects the immense contribution he has made to this House. On the issue of poverty, is the existence of traditional industrial diseases, such as emphysema in mining areas, taken into account in the allocations that continue to be made between CCGs?
Earl Howe: I am very grateful to my noble friend for her kind remarks. The information I have in my brief is as I have stated, in that the indicators reflecting deprivation are quite broad. However, it is for ACRA, the independent committee, to review those indicators to see that the measures are representative and accurate. I am grateful to my noble friend for pointing us towards some other indicators which could be relevant, and I shall make sure that her ideas are passed to the appropriate quarters.
Lord Reid of Cardowan: My Lords, when the Minister says that the decisions on these allocations are, of course, not taken by Ministers, that is correct. However, can he confirm that it is equally correct that the criteria by which those decisions are made are influenced, judged and promoted by Ministers? Is not the most important thing that he said today that the primary determinant of this should be need? Here I declare an interest, because I had to address this when I was Secretary of State for Health. During the period 1979 to 1997, there was almost an indirect, inverse relationship between increases in funding for areas and their social and health deprivation. I am sure that had nothing to do with the coincidence of voting patterns in those areas of social and health deprivation, but it would be reassuring if he could tell us that that is not likely to happen during the term of this Government.
Earl Howe: My Lords, we are determined that it should not happen. I am as aware as the noble Lord of the perception of party-political bias, and it is highly undesirable that there should be such a perception. That is why, in the mandate to the NHS Commissioning Board, we have stated simply that we believe that the right basis for allocating resources is to place equal access for equal need for healthcare services at the heart of whatever formula the board decides to follow.
Lord Hunt of Kings Heath: My Lords, perhaps I may come back to that very important point. The fact is that the advisory committee, presumably following guidance from Ministers and officials, came up with a formula that would have taken money from poorer areas and allocated it to richer ones. That is why the national Commissioning Board decided not to accept it and to go for an across-the-board increase. In the noble Earl’s discussions on the mandate, will he ensure that the Commissioning Board is enabled to come to its own view on these decisions?
Earl Howe: Yes, my Lords. In this case, the board concluded that the formula proposed by ACRA accurately predicted the future spending requirements of CCGs, but it was concerned that the use of the formula on its own to redistribute funding would predominantly have resulted in higher levels of growth for areas that already have the best health outcomes compared with those with the worst outcomes. In other words, the formula on its own would have disadvantaged precisely the areas that the noble Lord is most concerned about. On the face of it, this would appear to be inconsistent with the board’s purpose, which is to improve health outcomes for all patients and citizens, and to reduce inequalities, which is a key aspect of the mandate.
Lord Brooke of Alverthorpe: My Lords, as patients are to be at the heart of the new NHS from April, will it be the Commissioning Board or the Government who are responsible for advising patients throughout the country of their rights and responsibilities?
Earl Howe: My Lords, the NHS constitution is currently under revision. It is a task for the Department of Health to take forward but, as the noble Lord will know, in the mandate and indeed in the Health and Social Care Act the Commissioning Board is charged with upholding and promoting the NHS constitution. The process of updating the constitution is, of course, subject to full public consultation.
Education: School Leavers
Question
3.22 pm
Asked by Baroness Massey of Darwen
To ask Her Majesty’s Government what assessment they have made of the statement by the Confederation of British Industry that pupils leaving school should be “rounded” and “grounded”; and, what steps they plan to take to ensure education policies support that objective.
Baroness Garden of Frognal: My Lords, the Government welcome the CBI’s report. We share the view that all pupils should leave school prepared for the next stage of their life in education or work. Our reforms to qualifications, the review of the national curriculum, the raising of the participation age and the introduction of a pupil premium for disadvantaged pupils all testify to this. The academies and free schools programmes give head teachers the freedom they need to achieve the CBI’s vision.
Baroness Massey of Darwen: I thank the noble Baroness for that response but does she believe that the Government understand the importance of pupils developing emotional and social skills and that such skills enhance academic learning? I cannot believe that they do understand that because we have now been waiting for well over a year for a review of the curriculum, as well as for a review of personal, social and health education in schools, which has not appeared. Can she say where this review has got to?
Baroness Garden of Frognal: My Lords, I pay tribute to the noble Baroness’s expertise in this subject and to her support for PSHE, which I know is widely shared around this Chamber. It is true that we have not yet announced the outcomes from the PHSE review, which has been extended to take account of the review of the national curriculum.Perhaps I may reassure the noble Baroness by saying that, in its latest report, Ofsted said that 75% of the schools it visited were providing good or outstanding PSHE education. Therefore, although it is not statutory, that figure is encouraging. However, we shall of course be monitoring the situation.
Baroness Brinton: My Lords, we are constantly told that we are short of engineers in this country. CBI director-general John Cridland has said:
“Businesses have traditionally focused on education at 14 plus, but it’s clear we need to tackle problems earlier, instead of applying a sticking plaster later on”.
What are the Government doing to encourage exciting and vibrant maths and science teaching at primary schools, particularly those with lower attainment levels?
Baroness Garden of Frognal: My noble friend picks up a very important point from the report, and it was encouraging to see that now almost one in five maths graduates is choosing to go into teaching. Among the initiatives going on, I highlight one under which eight universities are delivering the two-year master’s-level mathematic specialist teacher programmes, which aim to improve the practice and efficiency of primary maths teaching by upskilling existing teachers who in turn train their colleagues. This year, our funding for that programme alone amounts to £2 million.
Lord Northbourne: My Lords, I wish to ask the noble Baroness whether the Government have a policy on helping young people in secondary schools to learn about and to acquire what used to be called the soft skills. By those, I mean interpersonal skills, including relationships skills, self-confidence, leadership, teamwork,
communication skills and many others, all of which are very important both in the workplace and in raising a family.
Baroness Garden of Frognal: Indeed, it is vital that young people come out of school with the soft skills which the noble Lord has highlighted. As far as parenting skills and others are concerned, there are of course different programmes, including the PSHE programme which so many schools are following. How schools address these matters specifically is for each school to determine locally.
Lord Howarth of Newport: My Lords, does the noble Baroness accept that if pupils are to leave schools rounded, they will have studied and practised the arts within the reformed curriculum? Imaginative capacities are increasingly important, both for the employability of individuals and for the competitiveness of businesses.
Baroness Garden of Frognal: Of course the arts are of particular importance. We touched on this in Questions and debates earlier this week. The Government fully support this, and there are various funding streams going into support of the arts. The issue seems to be that they do not appear in the EBacc, but of course not all schools do the EBacc. In any event, there will always be 20% to 30% of the timetable for such things as creative subjects, which are so vital to individuals and the country.
Baroness Heyhoe Flint:My Lords, is the Minister able to confirm that any future Statements on the school curriculum, including the English Baccalaureate, will include a greater emphasis on the provision of physical education? The current derisory agreement is that there will be a minimum of one hour per week of physical education. The CBI’s aspirations that school leavers be grounded and rounded may otherwise have different connotations when one realises the serious obesity problems with school beginners rather than school leavers.
Baroness Garden of Frognal: My noble friend makes her point in her own inimitable way. Of course, PE is an essential component of the school timetable. The amount of time that is spent on it is, again, a matter for schools to determine for their pupils and circumstances. However, particularly following on from the tremendous Olympic and Paralympic Games this summer, we would not wish to see the initiative for sport lost.
Baroness Hughes of Stretford: My Lords, research undertaken by MORI for the Department for Education itself has shown that courses in the creative arts, physical education, design and technology and business studies are now disappearing from schools as a result of the new, narrow EBacc performance measure by which schools will be judged. Will the Government now accept the CBI’s proposal that the EBacc be suspended so that the impact on schools can be properly assessed, before these cuts in courses become irreversible?
Baroness Garden of Frognal: My Lords, the EBacc has already had some very beneficial effects on children from disadvantaged backgrounds; we have seen their levels of attainment improving. The EBacc is not for everybody, and there will be alternative provision. We will certainly be monitoring the impact on the arts, sport, and all those other subject areas which are so important within the educational programme.
The Lord Bishop of Derby: My Lords, in terms of the roundedness of arts, sport and faith studies, the key issue is: how can the experiences and studies of pupils be recorded and monitored so that they can carry with them a proper record of their achievements and learning in those areas?
Baroness Garden of Frognal: The right reverend Prelate makes an important point. Of course, there will be recording of the sorts of achievements that young people make at their schools that are not subject to formalised end testing. I agree with him and, indeed, with the other questions that we have heard that sometimes those are the most important parts of a young person’s education. It is not necessarily the end exams that tend to show how people can progress; sometimes those personal skills are far more important for a successful and rewarding life.
EU: UK’s National and Trade Interests
Question
3.30 pm
Asked By Lord Renton of Mount Harry
To ask Her Majesty’s Government what assessment they have made of the impact on the United Kingdom’s national and trade interests of disengagement from the European Union.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, membership of the European Union is in the UK national interest. We continue to engage actively and constructively with our European partners and play a leading role in a wide range of EU business. The UK benefits from membership of the EU, including from the unrestricted access for UK businesses to a single market of around 500 million customers, which was worth £11 trillion in 2011, and from securing greater market access for the UK at a global level when, for example, it plays a leading role in EU free trade agreement negotiations with third party nations.
Lord Renton of Mount Harry: My Lords, I thank my noble friend very much for those very interesting statistics but could I take matters just a little bit further? Does she agree that it is absolutely essential for us as a trading nation to keep our alliances, partnerships and businesses throughout the European Union? Against that background, does it not follow that we should not be seen as a reluctant player in
Europe, constantly looking for the way out and not the way forward? Could she make that point sometimes to some of our colleagues?
Baroness Warsi: I could not have thought of a better week for such a Question from my noble friend because it gives me an opportunity to say that this coalition Government are committed to playing an active and leading role in the EU, while advancing the UK’s national interests and protecting its sovereignty. Membership of the EU is in the UK’s national interests and it is what this coalition Government believe, but the EU needs to reform to meet the challenges of competitiveness. It needs a stable eurozone and greater democratic legitimacy. It is to that end that the Prime Minister will be making a speech later this week.
Lord Tomlinson: My Lords, we heard clearly from the noble Baroness about the benefits of being in a position to exploit our membership of the single market. Does she agree with me that it would be inappropriate at present to do anything to disturb that, particularly as sterling is currently devaluing against the much criticised euro, which is improving our terms of trade with Europe and giving us greater potential competitive advantage there?
Baroness Warsi: The Government believe that we can have a better Europe and that Europe can be reformed with a view to increasing those real benefits that come from the European Union.
Baroness Williams of Crosby: My Lords, when the Prime Minister speaks later this week, will he draw attention, as the Minister has done, to the significance of the single market, which was strongly supported by Mrs Thatcher, to the insistence of many of our closest allies, such as the United States and the leading countries of the Commonwealth, that our influence within the EU is vital to the position of the West in the world’s global discussions, and to some of the outstanding developments in global fields, for example, on climate change and not least on organised crime, which have been successful examples of British influence within the EU and of EU influence within the world more generally?
Baroness Warsi: My noble friend raises a very important issue and these are matters that will be raised. It is important that we value our relationship with the European Union. My noble friend quite rightly raises the issue of our place in the world. On foreign policy, for example, I know that the work we did on smart sanctions against Iran’s nuclear programme, against the Burmese regime to encourage democratic reform and against the Syrian regime was possible because we worked collectively.
Lord Liddle: My Lords, the noble Baroness sets great store by encouraging investment into the United Kingdom from the emerging giants of Asia. Following the Prime Minister’s speech on Friday, we will face at least five years of economic uncertainty over our continued membership of the European single market.
That is likely to prove a great deterrent to all forms of inward investment just at the moment when jobs and the revival of investment depend on it? Does the noble Baroness agree that in doing this the Prime Minister is not speaking for the national interest?
Baroness Warsi: It may well be that the noble Lord opposite has had sight of the speech and is therefore making judgments based on his opinion of what is in the speech. I await to see what will be in that speech, as do many of us in this House, and I can assure the noble Lord that this Government have done all they can to make sure that when opportunities present themselves, both within the Commonwealth and in the wider world, especially in relation to India, Brazil and China, we have very clearly laid out our store to say that Britain is open for business.
Lord Pearson of Rannoch: My Lords, do the Government agree that we have some 3 million jobs exporting to the European Union but that it has 4.5 million jobs exporting to us? Are we not, in fact, its largest client? When we leave the EU, will it not come running after us for a free trade agreement which suits us at least as well as our present arrangements?
Baroness Warsi: The noble Lord always has an interesting take on these matters and is in an interesting position to trade statistics. I can assure him that most Members of this House believe that we are stronger for being within the European Union.
Age of Criminal Responsibility Bill [HL]
First Reading
3.37 pm
A Bill to raise the age of criminal responsibility, and for connected purposes.
The Bill was introduced by Lord Dholakia, read a first time and ordered to be printed.
Growth and Infrastructure Bill
Order of Consideration Motion
3.37 pm
Moved By Lord Ahmad of Wimbledon
That it be an instruction to the Committee of the Whole House to which the Growth and Infrastructure Bill has been committed that they consider the Bill in the following order:
Clause 1, Schedule 1, Clauses 2 to 6, Schedule 2, Clauses 7 to 9, Schedule 3, Clauses 10 to 14, Schedule 4, Clauses 15 to 32.
Legislative Reform (Constitution of Veterinary Surgeons Preliminary Investigation and Disciplinary Committees) Order 2013
Motion to Approve
3.37 pm
That the draft order laid before the House on 5 November 2012 be approved.
Relevant document: 9th Report from the Delegated Powers and Regulatory Reform Committee, considered in Grand Committee on 10 January.
European Union (Croatian Accession and Irish Protocol) Bill
Report
3.38 pm
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, I beg to move that the Report be now received. I would also like to respond briefly to points raised in Committee by the noble Lord, Lord Anderson, and the noble Earl, Lord Dundee, with regard to further EU enlargement in the western Balkans. I reassure the noble Lords that regional co-operation and good neighbourly relations are essential elements of EU enlargement. This was reiterated in the General Affairs Council conclusions of December 2011. The conclusions set out the EU’s expectation that disputes within the western Balkans should not have a detrimental effect on the shared goal of progress towards EU membership.
Baroness Anelay of St Johns: My Lords, it is unusual that there are no amendments down today. While noble Lords are leaving, could they do so quietly? The Minister is having the courtesy to respond to points made in Committee, and I know that those who took part in Committee will want to hear her courteous remarks.
Baroness Warsi: The conclusions set out the EU’s expectations that disputes within the western Balkans should not have a detrimental effect on the shared goal of progress towards EU membership. The Government support that statement in full.
Croatia, with its recent experience of accession negotiations, can itself play a constructive role in supporting its neighbours on their EU paths. I am pleased to say that Croatia is already doing this, as the noble Lord, Lord Anderson, highlighted in his remarks in Committee. In addition to the UK’s support for candidate countries, the UK provides expert support through EU peer-to-peer twinning projects. For example, since 2010, the UK has been awarded six twinning contracts in Kosovo, and we have recently been awarded
a new project in Montenegro. We have already hosted a delegation of Croatian twinners to explore how we can work together on new twinning projects as partners in the region.
Finally, it is important that the EU’s enlargement process works. Croatia’s successful accession is an important concrete means of maintaining the incentive of EU membership in other western Balkan countries. Croatia’s efforts will highlight that the EU rewards the hard work that underpins countries’ transformations.
Lord Anderson of Swansea: My Lords, I thank the Minister for her helpful replies to the questions that I have raised, and join with her in saying that it is clearly in our interests that the whole of the western Balkans be brought successfully into the European family. The accession of Croatia on 1 July will certainly be a signal step in that direction, and we join with her in giving Croatia, and indeed the rest of the western Balkans, every blessing on that journey.
European Union (Approvals) Bill [HL]
Report
3.41 pm
Scotland Act 1998 (Modification of Schedule 5) Order 2013
Motion to Approve
3.42 pm
Moved By Lord Wallace of Tankerness
That the draft order laid before the House on 22 October 2012 be approved.
Relevant documents: 9th Report from the Joint Committee on Statutory Instruments, 13th Report from the Secondary Legislation Scrutiny Committee, 7th Report from the Constitution Committee
The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, I beg to move that the draft order laid before the House on 22 October 2012 now be approved. I am grateful that we will have longer to debate the order than would normally be the case, which I think will be welcomed on all sides of the House. It certainly reflects the interest that noble Lords have shown in this order, not least the comments and contribution of your Lordships’ Constitution Committee whose report has made a very important contribution to the parliamentary process.
On 15 October last year, the Prime Minister, the First Minister of Scotland, the Deputy First Minister and the Secretary of State for Scotland signed an agreement on behalf of our respective Governments that will, if this order is approved by this House, allow a legal, fair and decisive referendum to take place on
Scottish independence. I think it important that we acknowledge at the outset of this debate just how far we have come. Your Lordships have discussed and debated this and related issues on many occasions. We all recognise that we face perhaps the most important political choice that people have taken in Scotland in more than 300 years.
Calls for separation from the rest of the United Kingdom are not new, but the process that we are debating today began with the Scottish National Party’s victory in the May 2011 Scottish parliamentary elections and its manifesto pledge to hold an independence referendum. In May 2011, the Scottish Government claimed they had the right to bring forward legislation in the Scottish Parliament, without any role for this Parliament. The Scottish Government proposed the establishment of a separate Scottish Commission to oversee the process, and there was an expectation that there would be a multi-option referendum. Indeed, just 12 months ago, when the United Kingdom Government launched their consultation paper, that was very much still the case.
From the very beginning, this Government acknowledged the political mandate that the SNP had secured for a referendum. However, we also set out our very firm view that any referendum had to be legal, fair and decisive. As I set out to your Lordships just over a year ago, the Scotland Act 1998 is very clear: the Scottish Parliament cannot legislate on matters reserved to this Parliament. That includes “the constitution” and, specifically,
“the union of the Kingdoms of Scotland and England”.
That is why we published a consultation paper on 10 January 2012 which set out the different ways to deliver a legal referendum. Our consultation paper set out the available legislative options and stated that our preferred option was to provide the Scottish Parliament with the legal competence to legislate itself. This received the overwhelming support of those responding to our consultation. More than 70% of respondents agreed that the Scottish Parliament should be given that power. Your Lordships’ Constitution Committee in its first report on the referendum in February 2012 welcomed the proposal to use a Section 30 order to confer on the Scottish Parliament clear competence to legislate for the referendum.
3.45 pm
Our consultation paper also considered issues that address the fairness and decisiveness of the referendum. Throughout discussions with the Scottish Government, we stressed that there should be a single question to deal decisively with the issue of independence. Your Lordships’ Constitution Committee gave its clear support for a single question to avoid conflating “two entirely separate constitutional matters” in its February 2012 report, and three-quarters of respondents to our consultation agreed.
In our consultation paper, we set out our view that the Electoral Commission—the independent body responsible for overseeing referendums in the UK—should be responsible for this referendum. This is the same position as for any other referendum. The Constitution Committee set out its view that there was a compelling
case for the Electoral Commission publicly to report on the intelligibility of the proposed referendum question and 86% of our consultation respondents supported the UK Government’s position.
Lord Forsyth of Drumlean: I am most grateful to my noble and learned friend for giving way. On the point that 86% of the respondents supported the UK Government’s position, this position was that the referendum process should be looked after by the Electoral Commission. Why did the UK Government not insist on that being part of the Edinburgh agreement?
Lord Wallace of Tankerness: As I shall come on to explain, it is very much part of the Edinburgh agreement. The Electoral Commission is crucially and centrally involved in the oversight of this referendum.
Lord Cormack: I am most grateful to the Minister. According to the agreement, all the commission has to determine is whether the question is intelligible. It is not a matter of whether it is fair, or loaded, but whether it is understandable. Is that sufficient?
Lord Wallace of Tankerness: My Lords, the position is that the Referendum Question Assessment Guidelines published by the Electoral Commission in November 2009 set out its approach to reviewing questions for intelligibility. These guidelines state:
“A referendum question should present the options clearly, simply and neutrally. So it should: be easy to understand; be to the point; be unambiguous; avoid encouraging voters to consider one response more favourably than another; avoid misleading voters”.
That is the Electoral Commission’s guidance to the intelligibility question which my noble friend raised; those are the criteria I expect it to apply having regard to weighing up and assessing the question that has been submitted by the Scottish Government to the Electoral Commission. With regard to this question, we have sought to put the position of the role of the Electoral Commission and the role of the Scottish Parliament on exactly the same terms as would be the case if the United Kingdom Government were proposing a referendum, where we put the referendum to the Electoral Commission for its assessment on the same criteria. I will come on to that in a bit more detail in a moment. It will report to Parliament and ultimately Parliament will decide. We are seeking to put the Scottish Parliament in exactly the same position, vis-à-vis the question and the Electoral Commission, as the United Kingdom Parliament would be in any referendum which the United Kingdom Government were proposing.
Lord Foulkes of Cumnock: Would the Minister care to give his opinion about the question as currently proposed by the Scottish Government, which is,
“Do you agree that Scotland should be an independent country?”?
All the polling evidence, and one can consult MORI and others on this, shows that this kind of phraseology is biased and leads towards a particular outcome. It therefore fails the test on that basis.
Secondly, the Minister said that the referendum should be decisive. I am not clear what is meant by,
“Do you agree that Scotland should be an independent country?”.
It does not refer to membership of the United Kingdom in any way whatever. I have spoken to some of my colleagues here, who think Scotland is currently an independent country in many senses. Is it not unintelligible, and therefore not decisive in any way?
Lord Wallace of Tankerness: My Lords, the key thing is that the Electoral Commission makes that judgment. I have heard the points made—with considerable conviction—by the noble Lord, Lord Foulkes, and others, but at the end of the day it is for the Electoral Commission to make that assessment. What it thinks about it, having done the testing on it, is far more important than what Ministers in the United Kingdom Government think.
Until relatively recently, I was the spokesperson for the Wales Office in your Lordships’ House and therefore during the referendum on the extension of powers for the Welsh Assembly. I could see at pretty close quarters the work done by the Electoral Commission in framing the question for that referendum—the noble Lord, Lord Wigley, will recall it. I was very impressed—not least because it faced the additional issue of the question being in Welsh as well as in English—by the thoroughness with which the Electoral Commission dealt with that. I was also impressed by the way in which my right honourable friend the then Secretary of State for Wales responded to the terms of the Electoral Commission’s report.
Lord Kakkar: Was it not the case both that the Electoral Commission looked at the specific question for that referendum and that legislation was brought before this Parliament? Therefore, this Parliament also had the opportunity to look at the question. The question for the referendum in Scotland will not be brought before this Parliament and we will not have an opportunity to look at it. Is it not still the responsibility of this Parliament to take care and to discharge its obligations to the citizens of the entire union?
Lord Wallace of Tankerness: The noble Lord is right about the Welsh referendum: the question was brought before this Parliament and was determined by it. However, as I sought to explain to my noble friends Lord Forsyth and Lord Cormack, this order seeks to put the Scottish Parliament in exactly the same position as this Parliament would be vis-à-vis a question for a United Kingdom referendum or a referendum that came under the responsibility of this Parliament. We want to put the Scottish Parliament in that position for the referendum on independence. If we are going to devolve power to do that, it is important that that is on the same basis as if this Parliament were responsible for the referendum. If this order is approved, it is up to the Scottish Parliament to make that judgment, and political consequences will flow from it if it is felt that the wrong judgment is made. We look forward with confidence to the Electoral Commission testing the question thoroughly—as it is indeed currently doing—and
to make a report, and we will all be well aware of what the content of that report is. Perhaps I might make progress after I have answered the noble Lord, Lord Williamson.
Lord Williamson of Horton: I comprehend that point, but we have our own Constitution Committee, which has stated:
“We are concerned about whether a referendum on independence will be intelligible unless it specifies that the consequence of independence is Scotland leaving the United Kingdom”.
What comment does the Minister have to make on that point, which is the view of our Constitution Committee? I understand the point that he made about the responsibilities of the Scottish Parliament.
The Countess of Mar: My Lords, may I very courteously suggest to the House that we hear the Minister’s speech, and that we will all have time to add whatever we want afterwards and to ask him questions to which he can respond at the end of the debate?
Lord Wallace of Tankerness: I am grateful to the noble Countess and, in that spirit, I shall seek to answer questions afterwards. I have indicated what criteria the Electoral Commission uses in determining intelligibility. However, I think that many of us want to get on to actually debating the issues, because we have a responsibility, too, to deploy the arguments so that people are very clear about what the consequences would be.
Following the respective consultations of the United Kingdom and Scottish Governments, a period of discussions between Scotland’s two Governments led to the signing of the referendum agreement on 15 October. It is important that we recognise the significant achievement that this agreement represents: agreement to promote this order that we are debating today to ensure that the referendum is legal; agreement that the independent Electoral Commission should oversee the referendum to ensure that it is fair; and agreement to a single question on independence to ensure that the referendum is decisive.
I have said on a number of previous occasions that there is nothing worse than having a referendum that at the end of it one side or the other can call foul. I believe that the various strands that have been brought together to achieve the agreement will allow us to avoid that. They are a long way from where we were when this debate started in May 2011.
However, we also agreed another key point: once the fundamental requirements to ensure that the referendum is legal are established, fair and decisive, the responsibility for setting out the detail of the legislation should be for the Scottish Parliament. That is a fundamental point of principle on which I have already spoken and on which I will say more.
I will first take your Lordships through the order itself. It is made under Section 30(2) and (4) of the Scotland Act 1998. It inserts a new paragraph (5)(a) into Part 1 of Schedule 5 to the Scotland Act 1998. Part 1 provides, among other things, that the Union of the Kingdoms of Scotland and England is reserved to the United Kingdom Parliament. The new paragraph (5)(a) will
ensure that the reservation does not apply to a referendum on independence, provided that it meets the requirements that are set out.
Those requirements are for a single ballot paper with a choice of two responses—in other words, a single question referendum on independence, to be held before the end of 2014, and without any other referendum provided for by an Act of the Scottish Parliament to be held on the same day. The order also makes provision in respect of public referendum broadcasts and free mailshots, which otherwise would be outwith the legislative competence of the Scottish Parliament.
Under the Political Parties, Elections and Referendums Act 2000, otherwise known as PPERA, referendum campaign broadcasts can be made only by or on behalf of a designated campaign organisation. The order applies this provision of PPERA to an independence referendum. This means that the restriction in PPERA as to who can make referendum broadcasts can apply to that referendum.
There are requirements on Ofcom and the BBC in relation to referendum broadcasts. The order provides that the definition of referendum campaign broadcasts includes independence referendum campaign broadcasts in certain circumstances so that the BBC, Ofcom and the Electoral Commission can have the same obligations and responsibilities in respect of the independence referendum campaign broadcasts as they would have in respect of any PPERA referendum broadcasts.
Under the 2000 Act, each designated campaign organisation can send a mailshot to every elector or household and is not required to pay the postage costs for this. This service is provided by the Royal Mail and the costs of this are recovered from the Consolidated Fund. This order applies these provisions in PPERA to an independence referendum. It specifically provides that the cost of the Royal Mail in providing this service will be recovered from the Scottish Ministers.
Therefore, the Section 30 order that we are debating today enables the Scottish Parliament to legislate for a legal referendum. The Scottish Parliament has already considered the order and approved it unanimously. Yesterday the order was debated in the House of Commons and approved without division, and if the order is approved by your Lordships’ House and then by the Privy Council, it will enable the Scottish Government to introduce a referendum Bill that sets out the wording of the question, the date of the referendum and the rules of the campaign for the Scottish Parliament to consider.
This devolution of power will ensure that the detail of the referendum process itself is made in Scotland by the Scottish Parliament. As I have already set out to your Lordships, this is a principle of importance to the devolution settlement. Once a matter is passed to the Scottish Parliament, it is for that Parliament to determine the details of the legislation that follows. That is how devolution has operated since 1999 and this Government will continue to respect that.
The referendum agreement and the Section 30 order set out the framework for the referendum. They ensure that it is legal, capable of commanding the confidence of people from both sides of the debate and of producing a decisive result.
I will now say something about the detail of the memorandum of agreement that sits alongside the order. It is a statement of political intent by Scotland’s two Governments. It commits us jointly to an approach and delivery of the independence referendum that will ensure that the proceedings are fair and that the outcome is decisive.
At the heart of any referendum must lie a set of rules and processes that have the support of both sets of protagonists. For the outcome of any referendum to be legitimate and accepted, both sides of the argument must have faith in all aspects of the referendum. That is particularly true when we are considering the future of our nation. The agreement therefore sets out the commitment of both Governments to the normal rules and procedures that govern referendums in the UK as contained in PPERA.
A core part of the PPERA process is the central role of the Electoral Commission. The two Governments have agreed that the Electoral Commission must review the proposed referendum question and that its report will be laid before the Scottish Parliament, and that process is under way. It is worth reminding the House that since PPERA came into force there have been three referendums held under it: the north-east regional assembly referendum in 2004; the one to which I have already referred in Wales on further devolution in 2011; and the referendum on the voting system for the United Kingdom Parliament, also held in 2011. In all three cases, the Electoral Commission reviewed the Government’s proposed question and provided its advice, and the Government responded by revising the question in line with that advice.
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Under the terms of the Edinburgh agreement, it will be for the Scottish Government to respond to the advice of the Electoral Commission. They have committed to putting before the Scottish Parliament their response to the Electoral Commission’s recommendations. As I said, that precisely parallels the procedure followed in this United Kingdom Parliament when a referendum is held under PPERA. It also means that the Scottish Government will be held to account by the public and Parliament alike for how they respond to that advice. In this case, all opposition leaders in the Scottish Parliament have stated their intention to abide by the Electoral Commission’s judgment. I believe that to do otherwise would be a significant step for which there would be a heavy political price to pay.
As I have set out, both Governments recognise that the referendum process must be seen to be fair by both sides in the campaign. That applies across the process but with particular regard to the financing of the campaign. As part of the agreement, the Scottish Government committed to consulting the two campaign organisations for their views before proposing spending limits for the referendum campaign to the Scottish Parliament. I understand that those consultations have been taking place. The agreement also ensures that the independent Electoral Commission will also provide the Scottish Government with advice on the appropriate spending limits for the two campaigns and the parties.
Lord Foulkes of Cumnock: Will the Minister give way on that particular point?
Lord Wallace of Tankerness: No—as the noble Countess said, the noble Lord will have an opportunity later, and I will certainly respond. Well, if it is very quick, yes.
Lord Foulkes of Cumnock: Does this include whether money can come from overseas sources, as well as total expenditure?
Lord Wallace of Tankerness: When I respond to the debate I will give a more detailed response to that, but I think that those arrangements are already there under PPERA.
That is what happened in previous referendums such as the 2011 referendum in Wales on further powers for the Welsh Assembly. In that referendum, the Electoral Commission recommended that the spending limit for designated campaign organisations should be set by reference to the expenditure limits that applied to elections to the relevant legislature. In its response to both Governments’ consultation documents, the Electoral Commission provided its view that the model remains appropriate for the Scottish independence referendum.
The Electoral Commission has also met the parties represented in the Scottish Parliament to seek their views on the financial arrangements. When the Scottish Government set out their final proposals for financing the referendum campaign in their Bill, they must set themselves aside from their own campaigning interests and recognise that their approach is being watched by all of Scotland, and indeed by the wider international community. This is a point which the Deputy First Minister, Nicola Sturgeon, herself recognised when she said that the poll must satisfy the highest standards. It is only right that we use the bar that she has set to determine whether what is proposed is appropriate.
Both Governments agree that the basis for the franchise will be that for the Scottish Parliament elections —that is, those UK or EU citizens who are resident in Scotland. Again, that is set out in the agreement.
In addition, the Scottish Government propose to give 16 and 17 year-olds the right to vote. I recognise and very much respect the fact that there are differing views on this issue in this Parliament and in this House. My party, the Liberal Democrats, supports the principle of 16 and 17 year-olds participating in all elections; our coalition partners do not. Indeed, there are views on both sides of the Chamber on that issue. However, in devolving the power to hold the referendum, we respect that this is a matter which should be debated and determined by the Scottish Parliament.
Indeed, where the Scottish Government and Parliament have the power to hold referendums and elections already, they have chosen to allow some 16 and 17 year-olds to vote. However, the Scottish Parliament’s decision with respect to health board elections and Crofting Commission elections in Scotland has set no precedent for any elections for which the United Kingdom Government and Parliament are responsible.
I fully expect the Scottish Government’s proposals to be debated robustly in the Scottish Parliament. It will be for the Scottish Government to make their case for this proposal and to deal with the issues that arise.
I can make it equally clear that any decision taken by the Scottish Parliament for the referendum will not affect the voting age for parliamentary and local government elections in the United Kingdom. That remains the responsibility of this Parliament alone to determine.
I turn to an issue which has attracted comment, particularly from the Scottish Government. The concluding paragraph of the Edinburgh agreement contains a commitment by both Governments to hold a referendum that is legal, fair and decisive. It is fair to say that there have been some creative interpretations of that paragraph in recent times, so I want to take the opportunity to restate its clear and very obvious meaning. Perhaps it is worth reminding the House what it actually says:
“The United Kingdom and Scottish Governments are committed, through the Memorandum of Understanding between them and others, to working together on matters of mutual interest and to the principles of good communication and mutual respect. The two governments have reached this agreement in that spirit. They look forward to a referendum which is legal and fair producing a decisive and respected outcome. The two governments are committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.”
This means that the two Governments will conduct the referendum on the same constructive terms as they work on today. It means that if the referendum follows the path set out in the order and agreement, its outcome will be decisive. It means also that, regardless of what the result is, that constructive relationship should continue as we move forward. I believe that that is good practice and common sense. Paragraph 30 is a statement of our determination to hold a referendum that is legal, fair and decisive. However, it does not and cannot be interpreted in a way that pre-empts the implications of that vote. It is important that everyone is very clear about that reality.
Scotland’s future within the United Kingdom will be the most important decision we in Scotland take in our lifetime. Facilitating a legal, fair and decisive referendum is critical. That is why we consulted on this issue. That is why both the Scottish Government and the United Kingdom Government spent many hours discussing and negotiating the process. That is why we seek the support of the House today to approve this order.
Debating this order in this House today marks an important step as we move from discussions on process to what many of us want to do—get to the substance of the debate. It is essential that the referendum decision is focused on determining whether Scotland chooses to remain an integral part of the most successful partnership of nations that this world has ever seen and to remain part of a family of nations that works in the interests of all, or whether Scotland wishes to separate and go it alone.
That is not a decision that should be taken lightly; it should be taken after examination of the facts. I strongly believe that, with the support of colleagues across the
House, across Scotland and across the whole of the United Kingdom, fellow Scots will join me in autumn 2014 in choosing to stay part of this very valued United Kingdom. I believe that we are indeed better together. In the mean time, I commend this order to the House.
At end to insert “but that this House calls on Her Majesty’s Government not to make the draft order until the proposals for the date of the referendum, the proposed question and the rules governing the conduct of the referendum have been published and until both Houses of Parliament have debated those proposals”.
Lord Forsyth of Drumlean: My Lords, if I am ever facing a murder charge, I very much hope that the noble and learned Lord, Lord Wallace of Tankerness, will, as a good Scottish advocate, be there to defend me. He has made a very convincing case out of quite a thin brief, if I may say so.
It may be convenient for the House if I speak to both my amendments. Neither amendment is fatal. If the House were to pass them, they would make absolutely no difference to the order, because they are simply advice to the Government. For that reason, I am not proposing to press my amendments to a Division—and out of respect to the other place, which agreed the order unanimously without a Division.
However, that is not to let my noble and learned friend off the hook, because there are some very serious issues. What are we doing here? We are passing responsibility for a referendum that will determine the future of the United Kingdom to the Scottish Parliament, my noble and learned friend would say. But in fact the Scottish Parliament is one man: Alex Salmond. He completely dominates the Scottish Parliament. We are passing responsibility for the conduct of the referendum to a man who has made it his life’s work to destroy the United Kingdom. We are doing so without knowing the question, without knowing the date of the referendum, without knowing the rules on expenses for the conduct of the referendum and without even knowing who is going to be allowed to vote in the referendum. That is after—how many months?—seven months of negotiation between the Government and the First Minister.
We have no commitment whatever from the First Minister that he will abide by the advice of the Electoral Commission. As my noble and learned friend Lord Wallace pointed out, every other party in the Scottish Parliament has said that it will abide by the advice of the Electoral Commission on the question, and on the rules of engagement and expenses—but not Alex Salmond. I wonder why that should be.
To cap it all, in November the First Minister produced his question. The question that he has suggested, which is contained in my second amendment, is:
“Do you agree that Scotland should be an independent country?”.
There is no more committed unionist in this House than I am, but I would be tempted to answer yes to that question. Scotland is an independent country.
In 1707, we did not give up our status as an independent country. Indeed, the Act of Union guarantees those aspects of Scotland that make it an independent country. We have our own legal system and our own education system. We have a completely different tradition in many respects. We even have our own languages. If the question were, “Do you agree that Scotland should be an independent state?”, then of course I know the answer. It is perfectly clear that it is no. By the way, any question that starts “Do you agree” is by definition a loaded question.
It is extraordinary that you have to get to Article 4(5) of the order, on the very last page, to see any mention of independence. It says:
“In this article ‘independence referendum’ means a referendum on the independence of Scotland from the rest of the United Kingdom, held in pursuance of provision made by or under an Act of the Scottish Parliament”.
The order makes it clear that a question framed in terms of whether you think Scotland should be an independent country is, to say the least, utterly misleading.
The Electoral Commission costs a great deal of money. In fact, it costs about half what the Royal Family costs. It has a staff of 129 people but it seems to be incapable of providing the advice on the question, which it has had since 12 November, in time for the House of Commons and this House to have this debate. That is an absolute disgrace. We should have had the advice from the Electoral Commission on the question. In the very fine debate in the other place yesterday, speech after speech centred on the issue of the question, its fairness and whether the Electoral Commission’s advice would be obtained. I asked the Electoral Commission why it could not provide us with the advice and it said that it was allowed 12 weeks and that, with the Christmas period, it was very difficult for it to do so. I have to say that for the Government to bring this order before these Houses before we have that advice is just not acceptable.
As I pointed out to my noble and learned friend, 86% of the responses to the consultation said that the Electoral Commission should be responsible for overseeing the poll. Why have the Government not insisted on that? My noble and learned friend is very good with words and he gives the impression that the commission is overseeing the poll. It is not; it is in a position where it gives advice and the Scottish Government, the Scottish First Minister or the Scottish Parliament may ignore that advice.
We have also heard from my noble and learned friend the suggestion that the determination on the part of the Scottish First Minister to extend the franchise to 16 and 17 year-olds will have no implications for the rest of the UK. I find it extraordinary that this order can have rules included that make the position on broadcasting expenditure and on free post absolutely clear but that it apparently cannot make the position clear on the franchise or indeed the role of the Electoral Commission.
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The Electoral Commission has given a view on what the expenses rules should be for the referendum, suggesting that expenses should be limited to the same
as those in the 1997 campaign on devolution—a campaign that I remember with considerable affection because I did not take part in it. At today’s prices, that is about half the amount of money in real terms. It strikes me as extraordinary that we would want to reduce the amount of money that can be spent on telling people in Scotland and, indeed, the rest of the United Kingdom about the implications of the break-up of the United Kingdom and that we should halve that relative to what was available in 1997 to consider the modest matter of devolution, which, we were told, would never lead to the position that we are in today. The point is that the First Minister—surprise, surprise—takes the view that the Electoral Commission is being too generous. He thinks that the amount should be less. There is nothing about that in the order or in the Edinburgh agreement, which, incidentally, is not part of the order and therefore cannot be challenged in the courts—I do not really understand why it is not part of the order. Therefore, on the question and on the expenses—two vital parts—there is uncertainty.
My noble and learned friend the Minister pointed out that, if we look to precedent, in the case of the Welsh devolution referendum of 2011, the regional assembly referendum of 2004 or the much lamented AV referendum of 2011, the Government accepted the advice of the Electoral Commission and made changes to the question as a result. This argument comes from my noble and learned friend, who knows Mr Salmond and how he operates. I have known Mr Salmond since I was at St Andrews University, when he ran the SNP, which had about four members, and I ran the Tories, which had about 1,500 members; since then, the position has been reversed somewhat. I know how he operates. To suggest that by charging ahead with his own question he will pay a political price is an interesting argument, as, indeed, is making out that the Scottish people will hold him to account. “L’état, c’est moi” is the First Minister’s motto every time he gets into his office in the morning.
Lord Reid of Cardowan: Given the noble Lord’s many valid criticisms of the weak negotiating outcome that the Government have presented to us, which is really what he is complaining about, I do not think that he should underestimate the question of the political legitimacy of the First Minister should he refuse the question that is put forward. I know that that is not the noble Lord’s intention, but in the manner in which he is presenting it he is almost making it a foregone conclusion. We should make the question of fairness and political legitimacy so important in this referendum that if the commission was to recommend a question, which then, for partisan purposes, was refused by the First Minister, that would become a central element of this political campaign. Let it be known now that we would do so, that there will be a cost and that anyone who acts unfairly on this vital question for Scotland will be seen by the people of Scotland to be acting unfairly. I hope that the noble Lord will reflect on that. I agree with a great deal of what he has said so far, but we must make sure that, if unfairness is deployed, there is a price to be paid for it by the leader of the SNP.
Lord Forsyth of Drumlean: I have considerable respect for the noble Lord. Of course I take his point, but what conceivable reason could Alex Salmond have for not agreeing, along with the other parties, that the Electoral Commission’s advice should be followed unless it was that he wanted to rig the question? The noble Lord says, “Ah, but there will be a political price”, but shall we spend the rest of the referendum campaign saying, “Ah, but the question is unfair”? What happens if we win or lose by a tiny margin? There will be arguments forever after about whether it was a fairly conducted referendum campaign. That is why we need to lance this boil at an early stage. It is no good setting off from the starting line and throughout the race saying, “By the way, this is not a fair race”. We have to win this race if we are to save the United Kingdom.
Just in case the noble Lord thinks that I am being partisan, I should say that I was quite struck during the debate on the order in the other place by what Mr Alistair Darling, the Member for Edinburgh South West, who is playing such a fantastic role in leading the campaign for the union in Scotland, said about passing responsibilities to the Scottish Parliament. He said:
“There is absolutely nothing wrong in that”.
“In practice, the transfer is not just to the Scottish Parliament but to the SNP, which runs the thing as a pretty tight ship—opposition is not usually tolerated—and not just to the SNP, because, as we know, the SNP is very much run by one individual. We need to be aware that that is what we are doing”.
It is absolutely essential that we understand that. Talking about the Edinburgh agreement, he said:
“That suggests that both parties were clear that the Electoral Commission’s role was impartial and that there was an assumption that they would accept whatever it proposes. It is, therefore, disappointing that before the ink was dry on the signatures, we heard from senior members of the SNP that the Electoral Commission could say what it wanted, but it would ultimately be the SNP’s call. That would be unfortunate, in relation to both the wording of the question and the spending limits”.—[Official Report, Commons, 15/1/13; cols. 762 and 764.]
The only thing in that with which I would argue is the use of the word “unfortunate”, for which I would substitute “disastrous”.
There is within elements of the Government and elements of the unionist campaign a creeping complacency which I find really worrying. I keep hearing people saying, “Oh, there is only 33% support for independence”. I ask them to have a look at Quebec. In the referendum for secession there, the position started off with 70% to 75% opposed to secession; in fact, it was 67:33—almost exactly where we are now. By the end of the referendum campaign, the vote against was won by 0.6%. Let us not be cavalier in giving away things that could make all the difference, such as the weighting of the question and the ability of people to get their messages out at this stage.
I point out to my noble and learned friend the causal way in which the Government regard the extension by the Scottish Parliament of the franchise to 16 and 17 year-olds, with all the implications that that will have. I do not have a particularly strong view—actually, I do have a strong view. I do not think that 16 and 17 year-olds should have the vote, but I am open to
persuasion. However, what I cannot be persuaded of is that they should have the vote for some elections but not for others. Frankly, saying that the Scottish Parliament has given them elections for the Crofters Commission and that that somehow indicates that there is no precedent for the United Kingdom is an argument of a quality to which I hope the noble and learned Lord will not stoop when he is defending me.
We are suggesting that people in Scotland should not be able to buy a packet of fags or, as someone said in the other place, a packet of sparklers, or a drink in the pub, but that they can decide the future of the United Kingdom. We are suggesting that all of this can be done on the basis of what Alex Salmond decides when he gets out of bed in the morning. This is utterly frightening. If ever there was an example of the tail wagging the dog, then this is it. The franchise should be a UK matter.
My noble and learned friend, in echoing the Secretary of State, is talking nonsense when he expounds this view of devolution. The Secretary of State for Scotland said of the order:
“This devolution of power will ensure that the details of the referendum process itself are made in Scotland, in the Scottish Parliament. That is a principle of great importance to the devolution settlement. Furthermore, the approach here respects another key feature of devolution—namely, that once a matter is passed to the Scottish Parliament, it is for that Parliament to determine the details of the legislation that follows”.—[Official Report, Commons, 15/1/13; col. 745.]
That last is a point made by my noble and learned friend. This is not about devolution. The future of the United Kingdom is not a devolved matter; it is for the United Kingdom. It is true that the United Kingdom Government have decided to amend and use the powers in the Scotland Act to overturn the limitation in order to give the Scottish Parliament that power. I do not have a problem with that, provided that we know what we are getting ourselves into. I believe that we are at risk, given the way in which we are proceeding and the trust that we are putting in Alex Salmond. It is a bit like putting the fox in charge of the chicken coop and arguing that the chickens will protest if it all goes wrong.
The Scottish Government, simply in any fairness, cannot be a participant and the referee at the same time, especially given that this First Minister has form. He was caught out telling porkies about whether he had had advice on whether we would have to rejoin the European Union if we were independent. He spent taxpayers’ money on preventing people getting, under freedom of information legislation, the facts, which turned out to be that what he had said was not true at all. He has already had a red card. I think that we should be concerned about trust.
Another point on the uncertainties that remain is about the timetable. It is absolutely ridiculous that we do not know the date of the referendum. It has to be by 2014, but everyone says that having to wait until 2014 will be hugely damaging to the Scottish economy and hugely damaging to business, will create enormous uncertainty and will bore us all to death, because we will be talking about this for far too long. We need to get on with it.
My noble and learned friend said that he was anxious to avoid talking about process and to get on with the arguments. If he is anxious to get on with the arguments, why on earth are we leaving these issues of process—the question and the rules of the referendum—open to more and more argument over a longer period? The Scottish Government are not even proposing to publish their White Paper until the end of the year—and presumably the Bill will be published after that—so we will be focusing on process because these matters have not been addressed.
Of course, the First Minister agrees with the Electoral Commission that the Scottish Government will need to be in purdah for only four weeks before the referendum. Given the disgraceful and partisan way in which the Permanent Secretary in the Scottish Office has behaved, and given the way in which Alex Salmond clearly is using his role in the Scottish Government to pursue a political agenda, I think that four weeks is far too short a time.
My noble and learned friend is right to say that we need to resolve these matters and get on with discussing the issues. I have to say to him that the UK Government have got some questions to answer as well. We cannot go on with a situation where, for example, the Ministry of Defence is saying, “No, we are not making any contingency plans as to what to do about the Trident nuclear deterrent if Scotland becomes independent and the SNP keeps its commitment to throw the nuclear weapons out of Scotland. We are not doing anything because we do not think that it is going to happen”. That is not good enough. The department should be setting out what the consequences would be in terms of the jobs lost—around 10,000 in Scotland—what the cost to the English taxpayer would be and what the future of our deterrent would be. That applies to every single government department. They should stop sitting there thinking that it is not going to happen. We have a duty to ensure that the voters know exactly what the consequences of voting for independence would be.
The SNP has a role, too. It needs to make its case. It is extraordinary that we will have to wait until the end of the year to hear how the proposal will work. It has had about 30 years to think about it.
Lord Wallace of Tankerness: Eighty years.
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Lord Forsyth of Drumlean: My noble and learned friend says 80 years. Yet we have no response. The First Minister is known as something of a gambler. Ironically, his campaign will be funded on a lottery win, on which, of course, no tax will have been paid. The other part will come from overseas supporters, such as Sean Connery. The noble Lord, Lord Foulkes, made an important point. The Electoral Commission thinks that it is inappropriate for foreign money to be deployed in the campaign, but, once again, Mr Salmond is taking the view that he will not rule that out. Even now, overseas funds are being raised in America. I do not know what it is about the SNP that it has great stars, such as Alan Cumming and Sean Connery, who will do anything to support independence except live in the country that they are arguing should be independent.
I said to my noble and learned friend that I would not press this to the vote but, as I have listened to myself talking, I have been tempted to do so because the case seems absolutely overwhelming. Today, I want an assurance from the Minister that the Government will put pressure on Mr Salmond to answer these issues and to come forward and tell us what the question will be. Most important, we need an absolute commitment that the Electoral Commission will act as referee and its advice will be accepted.
Lord Foulkes of Cumnock: The noble Lord has called on the Government to put pressure on Mr Salmond. From time to time, it is better for some of us who are perhaps long-term opponents of Mr Salmond to keep quiet about him, but would it not be helpful if the supine Scottish media looked at the SNP and its policies, started to put them under scrutiny and started to ask serious questions about what Scotland would really be like under independence? Should we be asking them to show us that they can do their job properly?
Lord Forsyth of Drumlean: I have to say to the noble Lord that I am quite ambitious, but to suggest that I could get him to keep quiet probably is stretching reality. The media are only as good as the information that they are given. If we are honest with ourselves, the pro-union campaign has been a little slow in getting off the mark—by that, I mean the Government—and setting out the facts. We still are arguing about questions, rules and dates, all of which should have been resolved long ago. We should be talking about the consequences for jobs, employment, investment, defence and our future in the European Union. These are the matters that should be discussed. They are the very last things that Alex Salmond wants to discuss because he and his party do not have any answers as to how our financial institutions would be regulated, how we would be able to operate in a modern world and where they would be in terms of asking to join the European Union from a position of weakness.
I fear that I have gone on for far too long. The Secretary of State for Scotland said that this was the most important question in United Kingdom politics for more than 300 years. I find it sad that the involvement of both Houses of this Parliament should be so limited in a question that is so important—he is absolutely right in that respect. It seems to me odd that the mother of Parliaments is being excluded from this process. My noble and learned friend and his colleague, the Prime Minister, went to Edinburgh. They did a deal in a room, which was never discussed by Parliament. There has been no opportunity for us to do anything. I am reduced to moving an amendment that will make no difference whatever. Even then, Alex Salmond is distorting what we say. I know that Members opposite worry about Alex Salmond and the way in which he seeks to present our commitment to the United Kingdom as being in some way anti-Scottish. It is not anti-Scottish to seek to defend Scotland’s right to remain a part of the United Kingdom and to play a proud and honourable role in this process. I beg to move.
Lord Reid of Cardowan: My Lords, it is a great privilege and challenge to follow the noble Lord, Lord Forsyth, on a subject such as this. On this occasion he probably has more support from more people in Scotland than he ever did when he was Secretary of State for Scotland. When he started his reminiscences, it showed how long he has been involved with these matters. He mentioned that he was a leading member of the students’ union at the University of St Andrews in the days when Gordon Brown was rector of Edinburgh University. I was student president at Stirling University and a certain Mr Alistair Darling was student president at the University of Aberdeen. As he pointed out, in those days—no doubt because of his own prowess—there were some 1,500 members of St Andrews Conservative Association and only four members of the SNP. This is presumably why St Andrews did not belong to the National Union of Students but followed the policy of absolute separatism in those days. I agree with a great deal of what the noble Lord said but I am glad he is not pushing the amendment to a vote for reasons that I will explain. It also liberates me to agree with him more than I would have done.
Two distinct questions are being debated around this order. The first is whether the Government made a good fist of the negotiations, the handling of the communication of their argument and the consultation with Parliament. The noble Lord has just given a pretty devastating critique of all three. The second is how we, as parliamentarians, were to respond, and whether our tactical differences over the mishandling of an amalgam or ensemble of tactical questions were sufficient for us to take a strategic decision to vote to renege on that agreement. That would have placed us in an extremely difficult position because, although I agree with a great deal of his criticism, had we taken such a vote, it would have played into the hands of those in Scotland who wish to portray the Westminster Parliament as somehow opposed to this whole exercise.
I just want to make one correction. It was never promised that devolution would stop the aspirations of the Scottish people for independence or separatism or anything else. What was said was that, all other things being equal, it would minimise the chances of the people of Scotland separating themselves from the people of England. That is still absolutely true, although you would have to speculate where we would now be if, throughout the period of Mrs Thatcher and afterwards, we had never given Scotland any degree of devolution, which is the correct way of balancing that.
I will give way to the noble Lord who, in his normal, non-partisan fashion, will deal with questions concerning devolution.
Lord Forsyth of Drumlean: I just wonder whether the noble Lord can tell me what, “devolution will kill nationalism stone dead” meant.
Lord Reid of Cardowan: It meant that the nationalist aspiration of separating Scotland from the rest of the United Kingdom would be defeated. It meant that we would remain a partner in the United Kingdom for much longer than we would if we failed to give an inch to the aspirations of the Scottish people to meet their
national consciousness through a degree of control over it. In order to prove his point, the noble Lord would have to argue that, had we not done that, the demand for separation in Scotland would be less than it is now, and I would strongly disagree. However, today I want to try to stress what unites us here, rather than historical differences.
Lord Robertson of Port Ellen: Those people who suggested that devolution would kill nationalism or the SNP stone dead have yet to be proved wrong.
Lord Reid of Cardowan: I believe that in the outcome of the referendum they will be proved to have been right. That is why I am optimistic. It is an optimism of the will, although I agree that we have to have pessimism of the intellect and to study contingencies on every front.
That leads me to the one area of disagreement that I have, which I think is important. If we do not understand the premise of what we are arguing, the conclusion will be wrong. It is not technically or politically wrong that many of these issues have been passed by the Government to the Scottish Parliament, because the question here is whether the people of Scotland wish to leave the union. The question in Wales was whether the people of Wales and the Assembly wished to change the relationship of the United Kingdom. There are two distinct things here. One is, when you want to leave a club, that is your decision; the other is, if you want to change the rules of the club, it is not your decision but the decision of everyone inside the club. That is why I believe it is right technically and legally that, following negotiations, many things have been passed down, although I entirely agree with the noble Lord, Lord Forsyth, in his estimate of the efficacy of the Government’s efforts in the negotiations themselves.
There were three major areas in those negotiations. One was the timing, one was the clarity and nature of the question, and the third was neutrality. On the timing, I cannot for the life of me understand why those of us in Scotland—and ultimately it is the Scottish people who will be making this decision—who have been debating this issue in some detail since at least the 1970s, and in many ways since 1707, have to wait another two years for a decision on this. I know whom it suits. It does not suit those of us who want an open debate and conclusion of this matter; it suits Alex Salmond. First, he has chosen a date which, he hopes, will be at the fag end of this Government and therefore he can draw attention to the terrible effects of five years of a Westminster-based Tory Government, as he will portray it. Secondly, the referendum will be held after four years of an SNP-led Administration in Scotland, when he can say, “You see, we didn’t frighten the horses”. To boot and for good measure, it will be the 700th anniversary of the Battle of Bannockburn. Therefore, I can see why he would choose to have it on that date, even if it inconveniences the rest of Scotland and two years of further dubiety about the status of our country affects our economic and social welfare. It will certainly not be in the interests of the people of Scotland, the economy or the social structures to delay the referendum that long.
Lord Foulkes of Cumnock: Is he not also hoping for some reflected glory from the Ryder Cup and the Commonwealth Games being held in Scotland in that year as well?
Lord Reid of Cardowan: I do not know. That is possibly the case, but I have given up the psychoanalysis of prominent figures. However, I have to say: be careful. I am not frightened of Alex Salmond and I do not know why we give him the status that he appeared to be given earlier. I believe we should have the confidence to say that ultimately this decision will be made by the Scottish people. We may have a fox in charge but we do not have chickens. We have in the region of five and a half million good strong people in Scotland who will make their own decision after an aggressive argument during, as it now happens, another extended period. On the timing, I think that the Government were weak. If they had truly been speaking to the people of Scotland, they would have said, “Let’s have a decision now. We’ve been debating this for decades”.
Secondly, there were two aspects concerning the question. One was of huge strategic importance and it was whether or not to have one clear question. On that, to give credit to the Government, they stood firm and we have it. We know why the First Minister wanted the other question. It was because he thought it would be more achievable, and the way it was to be achieved was not by him admitting to his fundamentalists that he would have settled for less than full separation. And, for goodness’ sake, I hope that the Government will recognise that we are already a sturdy, independent country. What is being asked for here is separation, not independence. Like any independent person, as a country we can choose, and have done for centuries, to ally and partner with other countries in order to punch above our weight. We did so before the Reformation with France; we did so after the Reformation with the great centres of learning of Europe, such as Geneva; and we did so throughout the British Empire when we ran it—although we can blame the English for the all the ills that ensued afterwards. It would therefore be helpful if the Government referred to this as what it is: a campaign for separation, not a campaign for independence.
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In any case, what was planned was the encouragement of the old broad front, which was supposedly demanding something slightly less than separation which the First Minister could live with. He therefore wanted a second question on the ballot paper. The Government should be given credit for standing firm on that, because a clear question ought to be put to the people of Scotland. If it is anything else—that is, a change in a relationship inside the union—that is not a matter just for the people of Scotland, but for the people of the United Kingdom, because it changes the rules of the club.
The third question is on neutrality. Here I have a slight difference—not a great one—with the noble Lord. Yes, it is true that any reasonable, legitimate Government or Administration would make it absolutely plain in advance that they would accept the Electoral Commission as a neutral arbiter and would accept the
question. It has been made plain that the First Minister is avoiding that commitment. We should exact a price for that. I merely say to the noble Lord, Lord Forsyth: never underestimate the political importance and potency of democratic legitimacy and fairness. People can spot a fly man at 100 miles, certainly in Glasgow, and I am sure that some of that attribute has spread to Edinburgh and elsewhere in Scotland. They know when somebody is “at it”, in the colloquial. They know when somebody is juking about, dodging and weaving, to use some of the phrases that Alex loves so dearly.
We must make sure that, right from the beginning, people know that this is all part of a pattern. It is the same as the obfuscation and misportrayal—I am avoiding the obvious word for it—of the European Union position. It is the same as the misrepresentation that Scotland will be accepted into NATO even if it does not accept NATO’s operational and strategic concepts. It is the same as the argument that goes, “We will be separate, but nothing will actually change”. When you ask, “Who will be the head of state, Alex?”, he replies, “Oh, we’ll keep the Queen”. When you ask, “What about our money?”, he replies, “Oh, we’ll keep the pound”. Every question is answered by saying that each change will result in things staying the same. People can see through that. They will see through the lack of legitimacy and see through somebody who says, “I will preside over this for the people of Scotland, but I will impose my partisan views on the question”.
I am therefore very glad that the noble Lord is not pushing this to a vote. There is a great deal of sympathy in the House for his main comments, but strategically it would be a mistake for us to express opposition to something which, however weak, was negotiated by the British Government.
I have one very short final point on the electorate. There has been a great deal of discussion about votes for 16 year-olds. That is a legitimate debate, and I tend to agree with the noble Lord, Lord Forsyth, on this, but I am also concerned about whether we have absolute clarity on Scottish service men and women. I would like the Minister to respond to that. It would be an absolute disgrace if young men and women from Scotland, many of them in the Scottish regiments and who are prepared to risk—and in some cases have sacrificed—their lives, together with their families, were to be deprived of a vote about the future of the very country that they are risking their lives for because they are serving it. They are an integral part of the British Armed Forces. I would like a guarantee from the Minister that under those circumstances each and every one of them—even if no one else—will have a vote and a say in the future of their country. Nobody deserves that more than the people who are prepared to die for it. I hope that we can get that assurance from the Minister tonight.
Lord Stephen: My Lords, I start by agreeing with the noble Lord on that issue of service men and women of the United Kingdom, and of Scotland, who should have the opportunity to vote in this referendum. The issue was raised yesterday in the other place in many good speeches on this Section 30 Motion. I listened to a great deal of that debate yesterday, and although
there was full cross-party consensus on the approval of the Motion, there was also, outside the nationalists, cross-party concern. That concern is shared by me and by my noble friend Lord Forsyth, as reflected forcefully in his remarks this afternoon, and clearly in the terms of his two amendments. Before focusing on that concern, we should recognise the good points of what has been achieved and of this Motion.
Michael Moore, as Secretary of State for Scotland, and the Prime Minister deserve great credit for delivering the Edinburgh agreement. Michael Moore skilfully negotiated, no doubt with the support of my noble and learned friend the Advocate-General for Scotland, an agreement that all sides agree is a good start, and a good way forward. It has been agreed by the Prime Minister, the Scottish Secretary, the First Minister and the Deputy First Minister that it is central to the principles underpinning this referendum that it should be legal, decisive and fair.
Let us take those tests in turn. First, it will now be legal, by the securing today of this Section 30 Motion and its approval under the terms of the Scotland Act 1998. In my view it was pretty clear, but some would say that it was a matter of doubt whether the Scottish Parliament had the legal powers to hold a referendum on independence. It is clear that those powers had not been devolved to the Scottish Parliament and that doubt will be removed today by the passing of this order. That is good. Secondly, as has been mentioned by others, it will now be a decisive referendum. There will be one question only. Despite the views, interestingly, of his party, which wanted one question, the First Minister wanted two questions. Clearly, he wanted an escape route. He wanted the cover and protection of a second question on more powers for the Scottish Parliament, but that emergency exit is now being removed. There will be a simple yes/no question, which means that the decision will be clear cut. That is also good news.
We then come to the third issue about fairness, on which I want to spend a little time. It has been covered pretty fully already, but it is vital that the referendum is fair if it is to command respect. We already know the SNP-preferred referendum question. We know the question that the Government in Scotland want to ask and it is not fair; it is a biased question. My noble friend Lord Forsyth helpfully quotes it in his amendment, which asks:
“Do you agree that Scotland should be an independent country?”.
That is a rigged question on at least two grounds. I am not a great expert on these psephological matters but those who are explain that if you ask people to agree with you—do you like my tie, do you like my new haircut, do you like whatever principle—they will tend to agree in response.
Lord Wallace of Tankerness: They do not think about it for two and a half years.
Lord Stephen: Indeed. Those who know about these matters say that is the first element of rigging of the question. Secondly, and on this I am more familiar because it is surely a matter of law, and of international law at that, is the issue of whether you want Scotland
to be an independent country. The correct question, I am told, is whether it should be an independent or a separate state. That is not the wording that the SNP proposes. Scotland is already a country; some people in this Chamber who are fierce unionists have already said they believe it is an independent country.
I am very pleased that the Edinburgh agreement sets out that the conduct of the referendum is to be overseen by the UK Electoral Commission—not a separate Scottish body—which is seen to be fair and objective and neutral. That is wholly good news. I was also greatly encouraged when I saw John McCormick, who many people in this Chamber will know is the Electoral Commissioner for Scotland, being interviewed on this issue by the BBC. He said that it was crucial that the question put to voters was clear, simple and neutral and went on to say, very importantly, that in his view the question was the foundation—the bedrock —on which this referendum would be built. If it was flawed or biased, the whole process would be flawed and biased. I agree with him completely. I do not agree with those who say the question does not really matter and that by voting day everyone will be pretty much clear on what the referendum is about—being in or out of the United Kingdom. It is important that the question is fair and commands respect on all sides from the start.
Some say it would make only a small difference, of maybe 2% or 3% either way. My noble friend Lord Forsyth has referred to the situation in Quebec. Some are saying it would be more than that, some less. Percentages are a curious thing, are they not? If British Airways downgraded its expectations of successful landings at Heathrow by 2% or 3%, international air travel would be killed overnight. If a casino said that a roulette wheel had a built-in bias in its favour of 2% or 3%, I dare say that many gamblers might still take the chance. We should not be gambling, however, with our nation’s future.
Finally, there is the issue of who decides in all of this. Is it the Electoral Commission? No, it is quite clearly the SNP, the Scottish Government and the Scottish Parliament that will decide the question. Can we trust the SNP on this issue? Well, no, because although it is both the player and the referee, it has made clear that the recommendations of the Electoral Commission are not binding on the Scottish Government and Parliament. Angus Robertson, in the House of Commons yesterday, and Alex Salmond, the First Minister, on Radio 4 this morning, have been given ample opportunity to make it clear, as the other leaders in the Scottish Parliament have done, that they would accept the views of the Electoral Commission on this crucial issue of bias and of avoiding anything other than an objective, neutral and fair question.
They have a mantra now, to get them out of the difficult question. The Electoral Commission will advise, says the First Minister. The Scottish Government will recommend and the Scottish Parliament will decide. Of course, as has been said, they have form on these issues of fairness, honesty and integrity—the very recent form that has been referred to, when the First Minister failed to tell Andrew Neil of the BBC the truth about whether he had taken legal advice on
Scotland’s EU membership and the Scottish Government then used taxpayers’ money in the courts to resist revealing legal advice that the Scottish Government had never taken. That is the sort of “Alex in Wonderland”, topsy-turvy situation that we are dealing with. There is no honesty, integrity and consistency in a position such as that.
However, there is a deeply serious and worrying point. If this referendum is not based on a neutral question, it will be biased; if it is biased, it will not be fair; and if it is not fair, that will be a breach of the Edinburgh agreement to be “legal”, “fair” and “decisive”. In my view, we will then have a serious constitutional crisis. I trust that can be avoided and that the First Minister can rise above narrow partisanship and set a tone for this referendum that will command all-party respect right across the whole of Scotland and of the United Kingdom. On that basis, we should pass the Motion today, but remain fiercely, ferociously and for ever vigilant about the dangers that lie ahead, which could have such profound implications for both Scotland and the whole of the United Kingdom if some of the fears mentioned today come to pass.
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Lord McConnell of Glenscorrodale: My Lords, when the noble and learned Lord, Lord Wallace of Tankerness, was Deputy First Minister of Scotland and I was First Minister of Scotland, there were probably times when he felt as if he was defending me against a murder charge, as described by the noble Lord, Lord Forsyth, earlier. I, too, appreciated the eloquence with which the noble and learned Lord introduced our debate this afternoon and his appreciation of devolution. I am also aware that we discuss these issues against hundreds of years of history—this month, in suppers all over the world, we will celebrate that century in which Scotland joined the union, and led the world in literature, science, engineering, philosophy and, of course, also in poetry. However, today, we debate only this order; not the outcome of a referendum and not the overall pros and cons of independence or separation.
I start my brief remarks by saying that I have believed passionately, since that 1979 referendum on devolution, that a devolved Scottish Parliament, inside the United Kingdom, is the best form of government for Scotland. I believe in shared sovereignty, which I believe we have. I also believe that despite the mistakes that have been made and will be made in the future by Scotland’s Parliament—just as this Parliament makes mistakes—Scotland is a better place today for having that devolved Parliament than it was 14 years ago.
However, we are not debating that principle today, nor the principle of independence, but the organisation of a referendum and the legal authority for it. In the 1990s and, after devolution, in the first decade of this century, I vehemently opposed the idea that there should be a referendum on independence because I believed that the uncertainty that it would create would be harmful for Scotland. However, we are in new circumstances and it is absolutely right that we now have that vote, which will decide Scotland’s future. It is time to make that decision, following the outcome of the Scottish elections last year and given the political
situation in which we now find ourselves. I supported the Prime Minister last January in his announcement that he wished to see the Scottish Parliament have the legal authority to conduct a referendum and that he was prepared to enter into negotiations to secure that outcome. I supported that position enthusiastically. I thought it was the right thing to do on principle and in practice—a binding referendum is good for everyone.
However, in my view, that referendum has to be based on transparent financing and fair rules, and should have been held without delay. I made a submission to that effect to both the UK Government and the Scottish Government last March. In particular, I say again—I hope the Electoral Commission is listening—that I advocated that we should not have a single question. It is not that we should have two different questions on two different topics but that the question itself—I think the noble Lord, Lord Steel, has made this same point—should be two distinct statements, from which voters are allowed to choose: either Scotland as an independent country or Scotland as a member of the United Kingdom.
That said, we are in a different place today, and I believe strongly in the principle of respect between the United Kingdom Government here in London and the Government in Edinburgh. That agreement has to involve our being willing today to criticise the outcome of these negotiations, but also respect the fact that the Prime Minister and the First Minister have shaken hands on the deal.
I do not want to go back over all the points that have been made but, as others have said, the outcome is that the delay in this referendum will cost Scotland jobs. No one should be in any doubt about that whatever. I have met companies in the United Kingdom, North America and elsewhere that are already delaying decisions about whether to invest in Scotland. They will delay even more between now and the autumn of 2014. The way in which the UK Government agreed to the Scottish Government putting this vote off until late 2014 was a grave error by both Governments that will cost the people of Scotland and the Scottish economy dearly, not just for the next 18 months but for years to come after that.
I do not want to repeat points that were made earlier, but on the rules, an additional point is that this referendum will be divisive enough in Scotland without having rules that are perceived by one side or the other to be unfair. One can already see prominent and reasonable people in public life tearing each other apart, with relationships and friendships breaking down. This will happen increasingly over the next 18 months. To add to that any perception that the referendum is unfair or conducted with unfair rules will, in the aftermath, leave a sour taste in the mouth that will take years to overcome in Scotland, and lead to a lack of acceptance of the outcome unless it is very decisive.
I understand the point that the Government are making. The principle of devolving the legislative authority means that we will devolve the detailed decision-making as well. However I do not think it was politically impossible to strike a deal openly and transparently between all concerned in advance of this
legal authority being devolved, which would have secured more details here and now. For perhaps the very first time in the 30 or so years that I have known him, the noble Lord, Lord Forsyth, and I strongly agree on that point. I suspect we will not make a habit of it. I understand that he will not press his amendments, but at the same time I think he is wrong even to suggest that we should undermine the agreement that has been reached between the Prime Minister and the First Minister.
When I was First Minister I never really had a position on whether the detailed discussions that took place between me, the Prime Minister and his colleagues should become public or not. Therefore people are perhaps not aware of when we agreed or disagreed, and when agreements were implemented or not implemented. However, there is nothing worse for those who lead Parliaments than to be in a situation in which they strike deals with other leaders but are then undermined in their negotiating position and their ability to implement it. Whatever feelings there are towards this agreement, we need to respect the fact that a deal was done, they shook hands and we now have to get on with the debate. To undermine that would leave an impression of bad faith that would be damaging for the devolution settlement as well as for the referendum campaign itself.
We should endorse the order, but we should express very clearly to the Government that the next time they negotiate with the Scottish Government, they need to negotiate much harder. However, we also need to get on with this debate. We need to make the case that, after 300 or so years—in this month when we celebrate the amazing contribution that Scotland made to the union, which we joined back in the 18th century—it is time to celebrate that and have a positive campaign. That campaign should spell out the dangers but also the hope that exists if we retain our membership of the United Kingdom and do so decisively, putting this whole debate—this division that has plagued us for decades—behind us once and for all.
Lord Nickson: My Lords, perhaps I may make three brief points. I am disappointed on two counts. It is quite right that the noble Lord, Lord Forsyth, is not taking us through the Lobby, but after his inspiring and marvellous speech, it is a disappointment to me that I cannot go through the Lobby behind him to support him. It was one of the great speeches on an issue of huge importance to us all and it has been nobly supported on this side.
It is a slight disappointment and surprise to me that no one from the Constitution Committee of this House, which has produced the report on the agreement, has come to speak in the debate. The report is in the Printed Paper Office. I shall give way to the noble Lord, Lord Crickhowell, and it is wonderful to see him. I shall not delay him for more than a few seconds.
Many of us in this Chamber, and many who are not currently in the Chamber, attended a meeting this morning by courtesy of the noble Lord, Lord Astor of Hever, and the Minister for the Armed Forces. The meeting was about defence. It was an extremely useful meeting. Many noble Lords who are here in the Chamber
made extraordinarily important points. I should like to highlight two of them. One was that it would be extremely helpful if similar meetings could take place with the other great departments of state on the other issues involved. The second was that it would be a very good thing if there was more identification of leadership from No. 10 and the Prime Minister on the Better Together campaign.
I should like to draw the attention of the House to the CBI document, The Scottish Government’s Independence White Paper, which came out this week. It lists questions on all the issues to which Members of this House would want to draw attention and provides an encyclopaedic examination for the SNP and Alex Salmond. I commend the document to the House because it covers all the questions to which we seek answers. I look forward very much to hearing the noble Lord, Lord Crickhowell.
Lord Crickhowell: Encouraged by the noble Lord who has just spoken, I should like to take the opportunity as a member of the Constitution Committee to put on the record of this Chamber some of the important points that we made in the report that we published on 13 November, a report that has been freely quoted today both by my noble friend and by others.
We made it clear that the Section 30 route that we are taking, rather than using primary legislation at Westminster, has a number of significant constitutional and legal consequences. As we can see all too clearly, and as the report states, it,
“significantly curtails the opportunity of the UK Parliament to have an effective input into the process. The Agreement was negotiated in private between the UK and Scottish Governments … There was no debate in either House of the UK Parliament on the Agreement until after it had been finalised”.
And, as we are learning very painfully this week, we said that,
“neither the House of Commons, the House of Lords, nor the Scottish Parliament will be able to amend the Order”.
“The House may consider that, despite the constitutional significance of the draft section 30 Order, the procedure makes it impossible to ensure fully effective scrutiny … It is hard to avoid the conclusion that more could have been done to include the United Kingdom Parliament in this process”.
“Neither the draft section 30 Order nor any other part of the Agreement stipulates what the referendum question is to be. This will be”—
“a matter for the Scottish Government to propose and for the Scottish Parliament to determine”.
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Our next point, which has been referred to already by almost everyone who has spoken, was:
“The question proposed by the Scottish Government in Your Scotland, Your Referendum was: ‘Do you agree that Scotland should be an independent country?’”—
a matter that my noble friend Lord Forsyth forcefully identified. We said:
“At least four problems have been identified with this formulation: first, that it is a leading question; secondly, that it asks a question about what Scotland is rather than about what Scotland should
or should not become; thirdly, that it asks about whether Scotland should be an independent country rather than an independent state; and fourthly that it does not specify that the consequence of independence would be that Scotland would leave the United Kingdom. We are concerned about whether a referendum on independence will be intelligible unless it specifies that the consequence of independence is Scotland leaving the United Kingdom”.
“We welcome the commitment in the Memorandum of Agreement to read across the PPERA procedure, such that the Electoral Commission will consider whether the referendum question proposed by the Scottish Government presents the options to voters clearly, simply and neutrally and will report accordingly to the Scottish Parliament (as the legislator of the Referendum Act)”.
We said—and here we were beginning to express the obvious doubt:
“We trust and believe that the Electoral Commission will be rigorous in assessing the question and will give candid and fearless advice on the wording proposed by the Scottish Government”.
I hope, and believe, that they will. However, like my noble friend Lord Forsyth, I think that it is very regrettable that they have not been able to produce their report earlier and in time for this debate.
“We have two concerns in relation to the referendum question which we draw to the attention of the House. The first is that, while the draft section 30 Order provides that a referendum on ‘the independence of Scotland from the rest of the United Kingdom’ is not a reserved matter, the precise meaning of this phrase remains unclear. Exactly what the Scottish Government mean by ‘independence’ is unknown. The Scottish Government have undertaken to publish the equivalent of a white paper setting out their vision of independence in the autumn of 2013. On present timetables—
we wrote this in November of last year—
“this will occur well after the Referendum (Scotland) Bill has been introduced into the Scottish Parliament and, more importantly perhaps, after the Electoral Commission will have assessed the referendum question for intelligibility. It is hard to see how the Scottish Parliament and the Electoral Commission will be able to undertake their roles fully and effectively, given that they will learn what the Scottish Government mean by ‘independence’ only much later in the process”.
We went on to draw the attention of the House to,
“how little appears to have been agreed between the Governments on these important issues. It seems that Parliament is to be invited to approve the draft section 30 Order with few guarantees that the PPERA scheme governing the fairness of referendum campaigns will be made to apply in Scotland”.
“It is the Scottish Parliament that will play the vital constitutional role of providing full and effective scrutiny of the proposed arrangements for the referendum on independence. The Scottish Parliament will have available to it the expert analysis and input of the Electoral Commission, whose advice should be considered authoritative”.
When I first saw the Government’s response, which was only received on Monday in a letter from the Secretary of State, I was pretty underwhelmed. He said—and I believe that this was repeated by my noble and learned friend in opening this debate—that the referendum on independence,
“must be properly supported and overseen by the independent Electoral Commission”.
Certainly, my understanding of the word “overseen” is rather different from the role of the Electoral Commission, which is to give advice that can be ignored.
I read a large part of the extremely long and impressive debate held in the other place yesterday. I think that I am right to say that on at least six occasions—there may have been more—the representatives of the SNP were specifically asked whether they would not just listen to but take the advice of the Electoral Commission. On all six occasions, they refused to give an answer. That is a fairly sinister and depressing signal.
One of the most interesting and important speeches made in the other House yesterday was made by the right honourable Member for Edinburgh South West, Mr Alistair Darling. He touched on all those issues. On this point, he said:
“My view is that the Electoral Commission should act as the referee, and I hope that it will go for a question that is clear and simply understood, without cant or tilt one way or another … People on both sides have mentioned the problem that the SNP is the player and the referee at one and the same time, which does not strike me as fair. I hope that it will accept what the Electoral Commission has to say on the wording of the question”.
He went on to make another point touched on earlier in the debate, but which has perhaps not been made enough of. That is the issue of the money to be spent, not on the actual arrangements for the election but before the period of purdah, when it is no longer—or supposed not to be—possible for the department to use public money effectively to campaign. That is very worrying, as it is quite clear that the First Minister intends to postpone until the last possible moment that period of purdah. Mr Alistair Darling said about that:
“The Scottish Government and the SNP seem to be one and the same thing when it comes to the referendum—the entire effort of the Scottish Government is now being directed towards the referendum. I am afraid that I do not have confidence that the permanent secretary at the Scotland Office will have any control over the SNP. I suspect that, even if he gets round to raising the odd word of concern, he will be told in no uncertain terms where to go. Public money is being used on one side, and those of us on the other side who have to raise the money ourselves will find it very difficult to compete, especially in the last four months of the campaign”.—[Official Report, Commons, 15/1/13; cols. 763-4.]
That is a very worrying and serious situation.
The only word of encouragement to make me think that the Government have a serious understanding and recognition of the problem that we face came from the Secretary of State, both in his letter to the Constitution Committee and in his response to the debate in another place yesterday, when he said:
“When the Scottish Government set out their final proposals for financing the referendum campaign in the referendum Bill, they must set themselves aside from their own campaigning interests and recognise that their approach is being watched by all of Scotland, and indeed by the international community. That is a point that the Deputy First Minister recognised when she rightly said that the poll must satisfy the highest international standards.”—[Official Report, Commons, 15/1/13; col. 746.]
My noble and learned friend repeated those words exactly in his introductory remarks this afternoon, and the issue was touched on by the noble Lord, Lord Reid, in his intervention. We have to get it over directly to the people of Scotland what is going on. That is why the point made earlier about the press reporting on these issues, if it can be persuaded to do so, is so significant. It is why we in this Parliament, in both
Houses, must not drop this matter today having debated this order, but come back and debate the whole question of devolution for Scotland again and again during the coming months, so that these messages can be got over to the people of Scotland. I think it was the noble Lord, Lord Reid, who expressed confidence in the good sense of the Scottish people and the electors. I have always had a huge respect for what I call the “horse sense”, the common sense, of the electors, when all the facts are fairly and fully put in front of them. I am glad that in the other place yesterday the Secretary of State said that there would be plenty of opportunities to debate these issues again and again and to draw all the questions to the attention of the Scottish people. I hope that that will be the case in this House as well.
Lord Sutherland of Houndwood: My Lords, I very much welcome the opportunity given by the noble Lord, Lord Forsyth, to debate this issue. He is right to take the view that he has on the amendment and on whether it will be pressed. However, this is a very important debate and, as has been suggested, we must ensure that it is continued.
I want to make two points and then issue a challenge. The first point is about the question. I was invited by the three pro-union—as it turned out then—parties in Scotland to chair a small, expert group on proposing a question that would meet the criteria which we all accept. We had hoped that it would be a group invited by all four of the major parties in the Scottish Parliament, but the SNP declined to nominate someone. Such is the way of life.
We came up with a question that is rather different from the one the Scottish Government propose—different in two respects that have already been commented on. First, we rejected the rubric, “Do you agree?” Rather, we wanted a single statement, “Scotland should be an independent state”: either “yes” or “no”, or “I agree” or “I disagree”. That would very plainly settle the matter.
The second point was, of course, that we used the word “state” and not “country”. The point of the word “state” is that if you have a state, you must have a head of state, a constitution, and foreign relations—whether with the EU or with NATO or, in due course, with the Government in Westminster, not least because of your interest in the Bank of England.
It was suggested to us—we have offered this evidence to the Electoral Commission—that the word “state” is a bit complicated. However, I believe in the electorate. They will take account of what this means. It is not a technical term. As a country, we host the Commonwealth Games; as a nation, we play in the Five, or is it Six, Nations tournament; as a state, we have a constitution, a head of state and, more than that, we must have foreign relations that we negotiate with others. If one says that the electorate will not understand that difference, then they will not produce informed consent or informed dissent. It is up to those of us who are involved in this, and, for example, the wider press, to explain the differences and ensure that people understand what they are voting on. So that is the question. We have submitted that evidence to the Electoral Commission. I do not know whether it will accept it.
My next point relates to the role of the Electoral Commission. The noble and learned Lord, Lord Wallace, slipped from one phrase to another. He suggested that in previous referenda there was a question of responding to the advice of the Electoral Commission. It is one thing to respond and accept—which is the phrase he used—but he also used another phrase: that the advice was accepted in line with what the Electoral Commission said. Are they required to go in the general direction, or are they accepting the actual advice?
In the light of that, I want to finish with a challenge. Much has been made of the role of the Scottish Parliament in this. I challenge the Scottish Parliament to debate now, before the advice is out. It must say whether it will accept the advice of the Electoral Commission, and if not, say so—and say why, or why not. Then, at least, we will have the arguments and reasons laid out for the Scottish population to understand what kind of group this is. The Scottish Parliament is not the Scottish Government; it is not the SNP. I challenge it now to debate a Motion that it will or will not accept the advice of the Electoral Commission.
5.30 pm
Lord Browne of Ladyton: My Lords, I am content to be associated with the challenge of the noble Lord, Lord Sutherland, to the Scottish Parliament and I am delighted to follow him. The earlier part of his contribution, in which he went through the elements of the proposed question and the criticisms that his expert group had made of it, was helpful and instructive. It complemented nicely the contribution of the noble Lord, Lord Crickhowell, who spoke with the authority of the Constitution Committee and its helpful report.
That report, although properly directed to a Minister of the UK Government, should really be directed to the Electoral Commission. The fact that the Constitution Committee of this House, with its modest resources, although it has a very distinguished membership, produced such an authoritative and well argued report in a comparatively short time reinforces the criticism from the noble Lord, Lord Forsyth, that the Electoral Commission, with all its significant resources, could not produce a report on the same issue in a time that was in step with the important decisions that needed to be made in relation to the process of this referendum.
It will be of no surprise to the noble Lord, Lord Forsyth, that even were he to divide the House, I would not have voted for his amendment. That is not because he is not a powerful advocate—he knows the view that I hold of his ability to make an argument—but for the reasons that my noble friend Lord Reid of Cardowan set out. I just think it would be bad politics at this stage in this process to support such an amendment to the Motion before the House. That is not to say that I do not have a lot of sympathy with many of the arguments that the noble Lord rehearsed, and which have been reflected in other contributions.
As I am speaking so late in the debate, I am in the fortunate position of not needing to repeat many of the points about the question, the role of the Electoral Commission or expenses. There is both the amount of expenses that the Electoral Commission proposes to allow for the conduct of the referendum and the fact
that it appears that we have allowed foreign money to interfere with our domestic politics, contrary to everything that I think we would all agree on about not allowing that to happen. There are people taking advantage of that to bring in foreign money to influence significantly the conduct of this decision in Scotland. I say to the noble and learned Lord, Lord Wallace, that if our regulatory legislation on the conduct of elections has such an obvious lacuna in it that we are allowing foreign money to be used in this way to affect political decisions in this country, it is incumbent on us quickly to close that loophole. As it appears that it is planned that the referendum will take place in late 2014, we have the time to do that. If we can do something to achieve the closing of a lacuna in our electoral regulations to stop this happening, it is incumbent on us to do it. We all agree that we should not allow foreign money to be used in this way and should do something about it.
I intend to concentrate on a small number of points which I think are genuinely additional to what we have already heard. My first point is in support of the noble and learned Lord’s argument that this is being done properly in devolving the power to the Scottish Parliament. I was interested in the irony of the argument that my noble friend Lord Reid of Cardowan deployed for this: the analogy of those leaving the club being entitled to make this decision for themselves, while those who stay and want to change the rules have to do that with everybody in the club. I may be wrong, but I think the first time I heard that analogy was when it was deployed by the noble Lord, Lord Forsyth of Drumlean, in making the argument that there should be only one question in this referendum and that if we went on to the issue of devolution max—a phrase that has slipped away from this debate, thank goodness—that was a matter for everybody in the United Kingdom, not just one for the people of Scotland, and that it therefore had no part in this referendum. I agreed with him then. The noble Lord, Lord Forsyth, may be sitting there thinking that there is a degree of irony that this argument was deployed so skilfully by my noble friend Lord Reid to undermine the argument that the noble Lord was making.
However, there is an additional argument as to why it is right, in the circumstances that we find ourselves in politically and democratically, that we should devolve this power to the Scottish Parliament. The current Scottish Government won an overwhelming majority, a majority that overwhelmed all of the other unionist parties in the Scottish Parliament in 2011 on a manifesto that pledged to deliver a referendum on the issue of independence. Of course we can say that was beyond the competence of that Parliament and we can make all these clever arguments, but actually we were left with a democratic problem. The answer to that problem—we have to face up to the political reality of that—is to give the Scottish Parliament the power to run this and then deal with the issues in that context.
My second point is about the way in which we are proceeding. I agree with all of the points that the Constitution Committee has made, which are essentially criticisms of the way in which the Edinburgh agreement was concluded and presented and the lack of parliamentary involvement, scrutiny and engagement in that. But that agreement has now been made. We have
to decide whether to respect that agreement made by the UK government leadership and the leadership of the Scottish Government. We have chosen to respect it, and I think that is right. It appears that we have here an order that we have a role to play in, which is what we are doing now. We also have an interesting constitutional linkage between the order and the agreement, the status of which appears to be a matter of dispute. I say that because I understand that the principal legal adviser to the Scottish Government is describing the agreement in a very particular way that is in contradiction to the way in which it is being described here. What is the legal status of the Edinburgh agreement? Can it be used by those who seek now to use it as some sort of legal platform to allow them to do other things, or is it, to paraphrase what the Secretary of State for Scotland said, simply an agreement between the UK Government and the Scottish Government as to how the referendum is to be run?
That leads me on to my third point, which is directly about the question. I will be astonished, as I think everybody will be, if the Electoral Commission does other than advise the Scottish Government that the draft question that they have proposed is inappropriate and will have to be changed quite radically, for all of the reasons that we have heard. The noble Lord, Lord Forsyth of Drumlean, in an excellent speech, described it as a misleading question. The fundamental problem with it, from my point of view, is not that it is misleading but that it is leading—leading in the way in which lawyers deploy that word: it is a question that begs its answer. A question that can instinctively be answered yes, as the noble Lord, Lord Stephen, suggested, is a leading question. In certain parts of the conduct of legal proceedings, we have a history and a tradition of not allowing those sorts of questions to be asked because they lead the witness to an answer. We do that for the very good reason that in certain circumstances, when people are engaged in that kind of a relationship with an interrogator, they incline to say what the person wants to hear. So it is a leading question, and I cannot for the life of me believe that the Electoral Commission will say that it is an acceptable question.
The real issue is whether the combination of this order and the agreement that the UK Government have extracted from the Scottish Government lead to the Scottish Government putting before the Parliament that they control effectively a proposal in a Bill for a question that reflects the advice that the Electoral Commission has given. In other words, will they respond properly to that advice? Whether we can have confidence that the man who leads the Government at the moment can be trusted to do that or not, we need to know that there is some form of audit or enforcement of that process that goes beyond our ability to be able, at some future election, to make the nationalists pay the price for what they did then, as the noble Lord, Lord Forsyth, said.
In those circumstances, is it legitimate to consider that a refusal to take that advice and an insistence on a question—a question which the Electoral Commission said was entirely inappropriate and leading and misleading for that reason—is reviewable in a legal sense in the light of the agreement that the Scottish Government
have entered into with the UK Government? I ask that not because I am such a clever lawyer that I have worked it out for myself, but because I had an informal conversation with one of the leading legal brains in this country, whom I will not identify, who suggested to me that such a decision would be reviewable. If there is a preponderance of that view among other leading lawyers in the United Kingdom, that will be enough to ensure that the Scottish Government behave in the way in which we want them to.
That is an example of exactly the sort of thing that it is quite legitimate for us as politicians and the UK Government to be exploring publicly in this environment. When we debated the Scotland Bill we had concerns about what the Government would agree with the Scottish Government. We set them off, in a sense, with a mandate not to do certain things. They have to be congratulated on coming back and meeting a substantial part of that mandate. The noble and learned Lord who will be responding to this debate deserves a significant degree of credit. The way in which he conducted himself in the early stages of this controversy, particularly the speech he made at the University of Glasgow, changed the whole tenor of the debate in Scotland. He carefully and calmly pointed out the legal basis of the powers of the Scottish Parliament and of the UK Government in the devolution settlement. He did the same thing on Scotland’s potential membership of the European Union, in a speech he skilfully gave in Edinburgh, and changed the debate.
However, there are still some issues for which we could use the same sort of devices to shift in a way that would allow us to have the confidence that this referendum would be legal, fair and decisive when it is conducted.
Lord Forsyth of Drumlean: I am not a lawyer and I wonder whether the noble Lord might give me some free legal advice. I asked my noble and learned friend why the Edinburgh agreement was not linked to the order. Perhaps naively, I assumed that it was to avoid any litigation. This whole process was started on the basis of trying to get a legal base that would avoid any legal challenges interrupting the process. Is the noble Lord arguing that there would be the opportunity for litigation if it was linked, or is he arguing that there might be an opportunity even if it was not linked?
Lord Browne of Ladyton: There is at least an issue worth exploring as to whether, with the current arrangement of an agreement—a public agreement, which raises a level of expectation—and the order, if the Scottish Government behave in a particular way, the decision to do so might be judicially reviewable. I do not look forward to the prospect of getting bogged down in litigation which might end up in the Supreme Court, for the obvious reasons of the relationship between the Supreme Court and the Scottish Government. I do not want to resurrect all that, but if there is something in this—I think there may be—the very fact that it is being aired in the public domain with reliable, informed and trustworthy legal advice, such as the sort of advice that the noble and learned Lord, Lord Wallace, gave publicly on previous issues of controversy, could well settle these issues so that we could have confidence that we were moving forward. That is my point.
My final point is that at one stage not too long ago we were led to believe that the UK Government would deploy their resources in such a way that we would get a series of papers that would set out their view on the implications of independence for Scotland and its separation from the rest of the United Kingdom. That information is crucially important to the debate. I hope the noble and learned Lord, Lord Wallace, will take the opportunity when he replies to the debate to indicate to the House where we are in the expectation of that. We know that the Scottish Government are deploying all of their resources towards the objective of a yes vote in the referendum in 2014. There is no reason at all why the UK Government, whose policy is to keep the United Kingdom together, should not deploy extra resources in order to achieve that objective. We should be utterly open about that. The sooner the Government are able to do that, to disaggregate that information from the information that only they hold for the rest of us to be able to deploy in this debate, the better. I am delighted that we have this order now because we are getting to the meat of the issue. I am desperate to get to the meat of the issue, but I want to be in a position where I can make arguments that are convincing.
5.45 pm
The Duke of Montrose: My Lords, I would like to touch on three points, first on process, then on content and finally on effect. I want to go back a bit further than we have done so far this afternoon. Today we are dealing with one of the myriad Henry VIII powers that are contained in the Scotland Act. As your Lordships will know, the Act itself was almost exclusively the product of an ad hoc body that called itself the Scottish Constitutional Convention. The fact that it contains so many Henry VIII powers, it seems to me, was the product of an approach that said, “We don’t really know what we eventually want, but let’s make a start and then we can see how it works as we go along”. So far, the Library tells me, Governments of whatever persuasion have been able to unearth 31 powers in the Act and pass 194 amendments to Schedule 5.
Given the state of politics in Scotland, contrary to the expectations of all the wise constitutionalists who set things in motion, the Scottish Nationalists have achieved such an overall majority that the need for a referendum on independence has developed a certain urgency. That need is to determine what the true convictions of the Scottish people are.
The power contained in Section 30(2) is possibly the most far-reaching in the Act. As was pointed out in the report of your Lordships’ Constitution Committee, as we heard earlier, this power has already been used 10 times for things that varied from equality and human rights to the railways. As the noble Lord, Lord Crickhowell, said, the committee also commented that the use of,
“the section 30 route significantly curtails the opportunity of the UK Parliament to have an effective input into the process”.
Today we are asked to pass this outwardly fairly simple order. Noble Lords will notice that it shares one outstanding feature with the Scotland Act 2012. Both are remarkable for what they do not say. This time
we have got rather more in the memorandum of agreement, but here we are being asked to pass measures that are not even as yet in secondary legislation. Noble Lords have touched on reducing the voting age to 16, an issue that is bound to have repercussions on all elections that take place in the UK, whatever anyone likes to say. In fact a Bill has been tabled in this House by the noble Lord, Lord Tyler, who I see is not in his place, when we will be able to look at this issue in the round. Here the issue is tucked away in a memorandum of agreement and we will not spend much time considering it.
The fact that we now find ourselves in a country with a devolved franchise, which is nominally giving restricted powers to other parts of the United Kingdom, appears to mean that the sovereignty of the Westminster Parliament can no longer be adhered to. We get framework orders such as this that are merely to approve powers that the Government have already assumed for themselves. Perhaps the Minister would like to comment on the Government’s statement in answer to one of Monday’s amendments to the Electoral Registration and Administration Bill. The amendment asked that the Secretary of State should be able to alter the franchise for elections by secondary legislation. The Minister said that they,
“believe that the franchise for UK elections should remain set out in primary legislation. It would be very unusual to provide for a change to the franchise in secondary legislation”.—[
Official Report
, 14/1/13; col. 489.]
What about memorandums of agreement? The agreement is such that we have a considerable—
Lord Wallace of Tankerness: Rather than allow a misunderstanding to continue, a memorandum of agreement does not change the franchise for the Scottish election. If it were to be changed, that would have to be done by means of primary legislation in the Scottish Parliament. Every referendum has its own franchise. The consequence of passing this order is that the franchise would be determined by the Scottish Parliament. There is an agreement that it should first and foremost be the franchise for Scottish elections and local elections. If the Scottish Government wish to extend it to 16 and 17 year-olds, that will require primary legislation in the Scottish Parliament.
The Duke of Montrose: I thank my noble and learned friend for that clarification but the underlying issue still bears consideration. On independence, I think that what we are faced with is that some regard Scottish history as having been a wasted opportunity either after Flodden in 1513 or after the Darien scheme in 1698, and they wish to wipe the record clean and begin again with a new and enlightened polity—centuries of Scottish toil brushed carelessly aside.
We can all see that in the intervening period there have been some remarkable individual Scots whose lives have marked moments of great progress for mankind, including Adam Smith, the framers of the United States constitution and David Livingstone. They can all stand on their own merit but in some ways, backing up the remarks made by the noble Lord, Lord McConnell of Glenscorrodale, when we begin to consider what Scotland’s contribution has been in the wider world, the vast bulk of it has been achieved within the union that is the United Kingdom.
Of course, as we contemplate the accumulation of events—the noble Lord, Lord Reid of Cardowan, raised the same issue—we are now learning that perhaps some of the elements were far from activities of which we should be proud. Overall, though, I maintain that Scotland has much to show for those years, and it is not something that can be easily shrugged off in a moment of enthusiasm for whatever appears new.
The nature of Scotland is such that big opportunities generally have been seen in the wider world outside. We can all see that independence can have a great attraction to the stay-at-home Scots, as long as Alex Salmond can continue to pull in sufficient funds to maintain the level of what we have come to regard as our inalienable rights. However, what can a vote for independence offer to our young people who are pursuing a career path in the corridors of power or in more widespread and influential businesses and marketplaces, or those who wish to establish businesses there? Will they not have to accept that they will be even more regarded as non-nationals in their place of work and increasingly unable to have a vote and influence in what is still their home?
Lord Foulkes of Cumnock: Perhaps I may follow the noble Duke, the Duke of Montrose, who has spoken so elegantly, as always, in this debate, as I did on a number of occasions during the passage of the Scotland Bill. Perhaps I may inform Members of this House, not all of whom may be au fait with social media, that this debate is being very well covered. Already the key comments made by the noble Lord, Lord Forsyth, and my noble friends Lord McConnell and Lord Robertson have appeared on Twitter. That is a very interesting development, and I shall return to that.