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Scotland: Constitutional Future

Volume 734: debated on Tuesday 10 January 2012


My Lords, with permission, I shall now repeat a Statement made by the Secretary of State for Scotland in the House of Commons.

“In May 2011 the Scottish National Party won a significant electoral victory—a victory this Government have openly acknowledged. The SNP has consistently campaigned for Scottish independence and its 2011 manifesto included a pledge to hold an independence referendum. As a Scot, I think it is vital that the Scottish people make a clear decision about our future within the United Kingdom—a decision made in Scotland, by the people of Scotland—but at present there is a lack of clarity about the referendum, its outcome and what the implications of that outcome would be. All of this creates economic uncertainty and that is bad for jobs and investment.

Since last year’s election, we have been asking the Scottish Government to set out their plans for a referendum but so far they have not done so. In particular, they have not said anything more about their legal power to deliver a referendum. This is not an issue that can be ducked. To legislate for a referendum on independence, the Scottish Parliament must have the legal power to do so. It is the Government’s clear view that the Scottish Parliament does not have that legal power.

Scotland’s future within the United Kingdom will be the most important decision we, as Scots, take in our lifetime. It is essential that the referendum is legal, fair and decisive. As a Government, we have been clear since May 2011 that we will not stand in the way of a referendum on independence. But neither will we stand on the sidelines and let uncertainty continue. Any referendum must let all of us in Scotland determine our future clearly and decide whether to stay part of the longest and most successful partnership of nations in history. That is why we are publishing a consultation to seek views on how to deliver a legal, fair and decisive referendum.

For a referendum to take place, legislation is required. This ensures that any referendum—on any issue—is subject to detailed consideration, debate and clear and consistent regulation. In 2010 the Scottish Government published plans to legislate for a referendum on independence. We have considered those plans carefully against the devolution settlement in Scotland as set out in the Scotland Act 1998. The 1998 Act is clear: the Scottish Parliament cannot legislate on matters reserved to this Parliament. Among the issues that are reserved is the constitution, including “the Union of the Kingdoms of Scotland and England”. Any Act of the Scottish Parliament that “relates to” a reserved matter is quite simply “not law”. Whether or not a Bill “relates to” a reserved matter depends on its purpose and effect.

We are clear that the Scottish Government’s purpose in bringing forward a referendum is to secure independence. Their intended effect is to secure a mandate for negotiating this. Both purpose and effect relate directly to the reserved matter of the union. Any distinction between a binding or advisory referendum is artificial. As the law stands, an independence referendum Bill is outside the competence of the Scottish Parliament. A Bill could be challenged in court and it is our view that the Scottish Government would lose.

So the consultation paper I am publishing today sets out different ways to deliver a legal, fair and decisive referendum. It explains how the powers for a referendum could be devolved under the Section 30 order-making provisions in the Scotland Act 1998— our preferred approach. It also invites views on devolving the powers using other legislation, including the current Scotland Bill, and for opinions on the possibility of running the referendum directly.

Given the clear legal problem that exists, we want to work with the Scottish Government to provide the answer. This is not about the mandates of Scotland’s two Governments or who calls the shots. It is about empowering the people of Scotland to participate in a legal referendum. That means that the UK Government are willing to give the Scottish Parliament the powers to hold a referendum which it otherwise cannot do legally.

But as well as being legal, a referendum must be fair and it must be decisive. For those reasons, the rules of the referendum must be demonstrably above board. The referendum should be overseen by those who have neutrality and the proven expertise to inspire confidence in the fairness of the process, such as the Electoral Commission.

But these issues are not for politicians alone to consider. That is why the consultation process that starts today will let people express their views on when a referendum should be held, what question should be asked, who should be entitled to vote and how the campaign should be run.

It will be open to all people in Scotland—and indeed outwith Scotland—to make their views clear, rather than rely on the opinions of politicians. It is in everyone’s interests that the two Governments take on board the needs of Scotland and the opinions of its people, work together and deliver the legal, fair and decisive referendum that is in our common interests.

This Government believe passionately in the United Kingdom. For over 300 years, our country has brought people together in the most successful multinational state the world has known. This Government are clear that independence is not in the interests of Scotland. The United Kingdom brings strength to Scotland and Scotland brings strength to the United Kingdom.

We recognise that this is not a view shared by all. But politicians from both sides of the debate owe it to everyone in Scotland to ensure that the referendum is delivered in a legal, fair and decisive way. The future of Scotland must not be worked out in secret, behind closed doors, nor determined by wrangling in the courts. It is my task to ensure that this referendum is made in Scotland, by the people of Scotland, for the future of Scotland. I commend this Statement to the House”.

My Lords, that concludes the Statement.

I thank the noble and learned Lord for repeating the Statement and add my gratitude for its notice. I trust that this will be a precedent for future practice.

The Statement is welcome, clear and, up to a point, informative. It opens discussion of what for too long has been either ignored or suppressed—namely, the legality of the Scottish Government’s proposals for a referendum. It should also have the benefit of obliging the Scottish Government to engage in open discussion on this important constitutional issue. It appears already to be succeeding at least in getting the First Minister to say that he will reveal within days his constitutional plans, which people have been asking him to reveal for quite some time. There is no doubt that the referendum will take place and what we must now do in all parties is work together to ensure that it is fair, legal and commands the respect of people in Scotland.

The democratic rights of people resident in Scotland have recently been prayed in aid by the Deputy First Minister. Democratic rights throughout the UK of course rest on the rule of law. That such an important issue be dealt with in a clear and lawful manner is something that all interested in democracy have a right to expect. The legal position should surely have been clear to all for some time but this has apparently not been accepted in certain quarters. On such an issue, frank and open discussion is the lifeblood of democracy. Secrecy and obfuscation may be clever gamesmanship, but they help no one, least of all the Scottish electorate, to understand complex constitutional issues.

The Government are to be congratulated on expressing their legal understanding openly and clearly, and we wait to see whether that openness is reciprocated by the Scottish Government. What, it may be asked, is the position of the Scottish Government on the legality of the Scottish Parliament proposing a referendum? There have been curious twists and turns as to how a referendum might be likened to an opinion poll and somehow have nothing to do with the constitution. That has been recognised as obvious nonsense.

The Scottish Government have a duty to make clear their position in relation to the legality of their own referendum, opinion poll or whatever. Anything less leaves them open to accusations of dissembling and trickery. The Government have made clear the view of UK law officers on this issue. Surely we are now entitled to know the view of Scottish law officers. If there were any genuine dispute, the issue might be taken to the Supreme Court for resolution. If there is no such genuine dispute, we can all get on with discussing, in a mature and less rancorous manner, how the referendum is to be organised for the benefit of all concerned.

I have five questions for the noble and learned Lord. First, if the Scottish Government produce contrary legal advice regarding the legality of the referendum, will the Government take the issue to the Supreme Court?

Secondly, Her Majesty's Government propose a Section 30 process to devolve powers for a referendum as their preferred option. But that, as with a Legislative Consent Motion, might give the Scottish Parliament a veto. Are the Government not anxious to avoid any such veto and has that been considered? Thirdly, as the noble and learned Lord will be aware, the First Minister says that he wishes to extend the franchise for his referendum—but only that—to 16 and 17 year-olds. Will the proposed consultation look at this issue and at whether only those resident in Scotland may vote?

Fourthly, the time limit within which the referendum was to be held appears to have been dropped. This seemed important. The Prime Minister said on Sunday that 18 months was to be the time limit, but during the week that appears to have been departed from. Why was that?

Finally, on the consultation itself, it surely has to be done properly rather than quickly. Eight weeks seems to be a somewhat abbreviated period for consultation on such an important issue. Why was that period chosen? As the Minister knows well, Calman provided a good model for consultation. Will Her Majesty's Government follow that model?

I am very grateful to the noble and learned Lord for his welcome of this consultation. I share many of the views that he expressed, not least that any Government of any Parliament on any mandate must operate within the rule of law. That is one of the fundamentals of our democracy. Clearly, too, simply having a straw poll on the day of someone's choosing would not amount to what we understand properly to be a referendum. That is why the Government take the view that any proper referendum is outwith the competence of the Scottish Parliament. That is why we have set out our view on how we might move forward.

I certainly agree with the noble and learned Lord that it would be in everyone's interests, particularly in Scotland but also in the wider United Kingdom, if these matters could now progress, in his words, “in a mature and less rancorous way”. That is certainly our hope and our intention by publishing this consultation.

The noble and learned Lord asked whether, if the Scottish Government produce conflicting legal advice, it would be referred to the Supreme Court. As he knows, the reference to the Supreme Court would fall on any legislation. The whole purpose of this consultation is to try to avoid that situation so that any legislation passed by the Scottish Parliament is within the competence of the Parliament because provision will have been made for it. That is the way of progressing in a mature and less rancorous way. It is in everyone's interest to avoid any legal uncertainty. In White Papers that were produced during the previous term, the Scottish Government themselves recognised that there was some uncertainty. What we are proposing in the consultation with our preferred Section 30 order is a way of ending that legal uncertainty.

The noble and learned Lord asked whether we had considered the possibility that the Scottish Parliament could veto our Section 30 order. That is obviously the case. A Section 30 order must be passed by both Houses of this Parliament and by the Scottish Parliament before being presented to Her Majesty in Council. Clearly, there would be an opportunity for that not to be passed by the Scottish Parliament. However, the whole point of having the consultation and of engaging not just with the Scottish Government and Scottish Parliament but with wider interests in Scotland is to try to avoid that situation, so that if a Section 30 order is brought forward it is one that can command consent and support.

With regard to the franchise, the noble and learned Lord will note that in the consultation document a question is raised about the franchise. It has been suggested by the First Minister that 16 and 17 year-olds may vote. The view of the Government is that the preferred franchise for the referendum is the one that we currently use to elect the Scottish Parliament. It seems perfectly reasonable, if that is the franchise to elect the Scottish Parliament, that it should be the franchise used for a referendum. Obviously, there are wider issues about whether 16 and 17 year-olds should have the vote. No doubt they will be properly debated in time, but it is not a matter to be debated in the context of this referendum. We asked the question but our view is that the franchise for the Scottish parliamentary elections makes the best franchise for a referendum.

With regard to time, the Government have always said that the referendum should happen sooner rather than later. If the Scottish Government work with us during the consultation process and we go down the route of the Section 30 order, it is possible that these powers can be used to deliver a legal referendum sooner rather than later. But this is a consultation and we are seeking the views of people about how best to deliver a legal, fair and decisive referendum, including when the referendum should take place.

Finally, it is explained in the eight-week consultation document that it is eight weeks because while our preferred option would certainly be to use a Section 30 order there is also the possibility of using primary legislation. The obvious vehicle for primary legislation is the Scotland Bill currently before your Lordships’ House. The House will recognise that there are time constraints on that, but we think that the issues here are very clear. It is not as if the points brought together in the consultation document are ones that nobody has been discussing, although the Scottish Government have perhaps not contributed too much until now. If they are about to produce their own response to this, that is a good outcome already from the consultation document. I think that the issues are clear and one would hope that we could get a wide range of Scottish opinion within the eight weeks and still allow the opportunity, if that should be the case, for the Scotland Bill to be used.

My Lords, I accept absolutely the sovereignty of the people of Scotland on this issue, but I hope that they will exercise their choice to stay part of a multinational and multicultural United Kingdom. I agree also that there is a need to end the uncertainty and clarify fair rules around any referendum on independence for Scotland. However, I counsel the Government against falling into a nationalist trap, as they will wish to portray the Prime Minister—to amend a phrase used elsewhere in recent years—as going from Mr Bean to Stalin in relation to Scotland. It is vital that all of us ask both Governments to get around a table and agree the rules for the referendum and agree them properly and fairly. Will the Minister address his colleagues in Government on that issue and urge them to get involved not in a shouting match but in practical and concrete discussions that produce an end result? Does he agree that the 1979 referendum result in Scotland was not accepted by everyone in part because it was created in a divisive manner and the campaigns were executed in a divisive manner? The 1997 referendum result was accepted by everybody, including by everybody who opposed it, because the rules were agreed fairly and there was consensus about how it was done. Does the Minister agree that that is the way forward for Scotland, and that we have a result that is clear but accepted afterwards because every party and everyone involved has been engaged in the discussions about the creation of that referendum in the first place?

I thank the noble Lord for that contribution. I certainly entirely endorse the latter part of what he has just said. Having campaigned in both the 1979 and the 1997 referendums, I am certainly clear that the fact that in the 1997 referendum the campaigns and the rules were very clear and nobody had any cause to say that there was any jiggery-pokery, or that the goalposts were being shifted, meant that those on the losing side nevertheless felt able to accept the outcome. That is the goal that we all want to see in this. I say that in terms of the earlier part of his question, too. Anyone who reads the consultation paper will see that it is by far and away not a Stalinist document but one that invites consensus and provides a route map towards consensus. That is the spirit in which it is offered to the people of Scotland.

My Lords, I congratulate the Prime Minister and my noble friend on this initiative. Could he help me with something that is causing me some bewilderment? The SNP manifesto, on which it got 45 per cent of the vote, says:

“We will give Scots the opportunity to decide our nation's future in an independence referendum”.

In that case, why is this initiative by the Government so unpopular with the Scottish nationalists?

That is a very fair question. I cannot understand why they would not wish to have the proposal to allow them to achieve their manifesto goal in a legal way, given that back in 2009 the First Minister was calling for a referendum in November 2010. Here we are providing a legal route. But the means of making it fair and decisive are perfectly reasonable proposals on which we are consulting, and I very much hope that on reflection the Scottish Government will agree that this is a proper way forward and will enter into the consultation in that spirit. This is not just a consultation for Governments; we hope that people from all walks of life, in Scotland and furth of Scotland, will also respond.

As one of those who sat for many hours and nights and days and months—it sometimes felt like years—trying to secure the passage of the original Scotland Bill through your Lordships' House, I welcome this bold Statement by the Government. It is absolutely right; if anything, it is slightly overdue.

On two particular issues, first, can I observe that it is important that there is a time limit to the referendum? It is absolutely vital for the future of Scotland that the matter of independence is settled quickly and clearly without doubt. It is holding back the whole progress of Scotland economically and socially, and that must be resolved.

Secondly, on the franchise, I would have thought that the answer was simple. If you want effectively to replace or modify the Scotland Bill, the franchise ought to be the same as the one that was used to secure the proposals on the referendum in the White Paper at that time.

One great advantage of the Government’s proposal is that it will avoid the dreadful situation and ultimate catastrophe whereby, if the Scottish Parliament played the matter long and it reached a stage where a referendum was about to be called, any individual could take the Parliament to the courts on the basis that the proposal was outwith the vires of the Parliament. That would be a most unsatisfactory situation. It is important to make the vires issue absolutely clear, and I think that the Government are absolutely right in drawing attention to the vires being decided on purpose and effect. That deals with the whole vires issue. If the constitution is reserved, anything to do with constitutional change, because it is purpose and effect, must also be reserved.

I come on to a slightly sensitive issue—

Does the Minister recognise that one problem is that for too long all the political parties in Scotland have refused to confront the issue and failed to challenge the fact that the present First Minister in Scotland has asserted that this is a function of the Scottish Parliament when clearly it is not?

My Lords, I certainly am very grateful and appreciate the support and welcome that the noble Lord has given, not least because of the very important role that he played in delivering the Scotland Act 1998 through many sittings in your Lordships' House. He asked about the timing, and clearly one could pray in aid comments from professional bodies, including the CBI Scotland. However, it is almost common sense and self-evident that at a time of otherwise considerable economic turmoil and concern, businesses, which in making investment decisions look to the long term, will factor in questions of uncertainty as to whether Scotland will or will not be part of the United Kingdom and, if not, whether it will have the euro or the pound. Clearly there are uncertainties there, which is why the Government, including a number of my ministerial colleagues, have expressed a view that we would prefer to see this referendum sooner rather than later.

The consultation paper sets out some of those factors and invites comment from people in Scotland as to the timing for the referendum. I hope that not only the United Kingdom Government but the Scottish Government will have regard to those responses.

I will not follow the noble Lord down his final path, because I do not believe that while we are trying to move forward and get a legal, decisive and fair basis for a referendum, and to have a campaign which those of us who firmly believe in Scotland's future in the United Kingdom want to co-ordinate and act on together, it is the moment for criticising parties north of the border.

My noble and learned friend knows that I did not take any part in the last Scottish elections, because I was following the advice of the late Lord Weatherill and the noble Baroness, Lady Boothroyd, that as a former Presiding Officer I should not take part in party political activity, but that did not mean that I was not watching what was going on. Does the Minister agree that what happened was that the SNP leaflets, and indeed the ballot paper, did not say, “Vote SNP for independence”? They did not even say, “Vote SNP for a referendum”. They said, “Vote SNP for Alex Salmond as First Minister.” Objectively, I thought that was rather successful. However, the idea now that there was some kind of mandate and that people were rushing into the polling booths to authorise the SNP to organise a referendum—and to decide who should vote in it, what the question is and when it should be held—is complete nonsense. Their manifesto did not even refer to the timing coinciding with Bannockburn, so let us get rid of this mandate theory.

The Government are right to come forward with a consultation paper. I agree with the noble Lord, Lord McConnell, that what will scunner the people of Scotland is if we spend the next three years discussing these issues instead of getting on with getting the two Governments together to work out a sensible way of letting the people of Scotland decide their future as soon as possible.

I certainly know why my noble friend did not participate, having been a former Presiding Officer. I had some participation in the Scottish elections as an observer, and it is probably right to say that whether or not Mr Salmond was the best of the party leaders to be First Minister seemed to resonate in the debates more than the question of independence. Nevertheless, it has been the policy over many years for the Scottish National Party to have a referendum on independence. That clearly was in its manifesto and the United Kingdom Government have, since May last year, indicated that we recognise that. The timing was certainly not in its manifesto but, as I think my noble friends Lord Forsyth and Lord Steel said, the SNP said that it wanted a referendum on independence and we are trying to ensure that it gets one. What could be fairer than that?

My Lords, we should all welcome this decisive action by the Government, which has helped to fill a vacuum that was there in putting the unionist case. However, in the consultative document there is one matter that causes me some doubt. Why is there any question about who should oversee the referendum? Surely, it must be the Electoral Commission that decides the wording of the question, how much money should be spent by each side and all the other aspects. Surely, that does not need consultation.

Perhaps I may ask a practical question in relation to the consideration by this House. Since the consultation finishes on 9 March and we are due to go into Committee on 26 January to consider the Scotland Bill, and since some of us have put down a number of amendments—indeed, I have put down one in relation to Section 30 that is exactly what the Government are proposing—are we really going to go ahead with the Committee stage on 26 January? It will really be a false debate that is taking place when we know that this consultation is under way. It will be going through the motions without any real substance to the debate. I hope that the Government will now consider postponing consideration in Committee as a result of that.

My Lords, with regard to the noble Lord’s first question, it is very clear on page 16 of the consultation document that the United Kingdom Government believe that the Electoral Commission should oversee any referendum on Scottish independence. Indeed, we have included provision in the draft Section 30 order which is appended to the consultation document. However, we put the question because this is an issue which the Scottish Government have called into question. It is something that should be consulted on, but the UK Government make it very clear that we believe that the body best equipped to oversee this, with a track record of overseeing impartially and fairly, is the Electoral Commission.

With regard to the timing of business, as a non-business manager it is always very difficult to embark into that territory. However, the consultation will be current because there are issues other than the question of the noble Lord’s amendments, and amendments tabled by other noble Lords, with regard to independence. There are other issues to be debated in Committee. Also, it would not necessarily do any harm to air some of the issues—perhaps in more detail, which we have in this consultation—and of course there will still be the Report stage to come back to, by which time we will have had the outcome of the consultation.

My Lords, I add my welcome to this Statement, which is absolutely excellent. I welcome its clarity and its tone. I welcome its firm and fair sense of purpose, particularly with regard to the timing. I hope that the absence of a reference to an 18-month time limit in no way suggests that the enthusiasm for speed has diminished in the hands of my noble and learned friend and my colleagues in Government.

However, whatever became of Braveheart? Last February, the Scottish National Party put out a policy document, which I am told said that it would hold a referendum as soon as possible. Now, less than a year later, it seems to have disappeared into the mists of time, so it is Braveheart to shrinking violet in less than one year. I hope that my noble and learned friend will press on, for the reasons that the noble Lord, Lord Sewel, gave. The Scottish economy is undoubtedly suffering and will continue to suffer as a result of the uncertainty which is happening. Investment is falling, inward investment is low and company formation is very low. Unemployment is rising faster in Scotland than elsewhere in the United Kingdom. We need firmness, clarity and a modicum of speed, provided always that we can ensure that all the facts and reality of the figures and consequences for Scotland are laid clearly before the people before a vote is taken. That requires independent verification by some kind of body, as my noble friend Lord Forsyth has suggested in the past.

My Lords, I am very grateful to my noble friend for his welcome for the approach which we are taking. As I indicated in my response to the noble Lord, Lord Sewel, it seems to be self-evidently the case that a question of Scotland's future within the United Kingdom is a cause for uncertainty as long as it remains unresolved. That indeed is why my ministerial colleagues and I are of the view that a referendum held sooner rather than later would be better. That is stated in the consultation but we thought it important that other people in Scotland, and indeed outwith Scotland, get the opportunity to express their position on the view.

My noble friend referred to Braveheart and shrinking violets. I note that in the Scottish Government's White Paper, Your Scotland, Your Voice, published in November 2009, the First Minister said:

“It is now time for the voice of the people to be heard—in the referendum on Scotland’s future we intend to hold in November 2010”.

Their manifesto for the 2010 elections said:

“We are taking forward a Referendum Bill in the Scottish Parliament this year”.

I just observe that it seems rather odd that when they were in the Scottish Parliament without a majority, they were wanting a quick referendum but when they can actually deliver it they want to delay it.

My Lords, it is self-evidently right that there should be a referendum that is legal, fair and decisive. The worst possible outcome for Scotland and for the union would be to have a conclusion that was narrow and that people believed had been rigged in some way. For that reason, I welcome this Statement and the consultation document. However, the rather intemperate response that we have seen from the Scottish Administration really gives one cause to question whether there had been any discussions with the Scottish Government prior to the publication of this document. If not, why not, and if it should prove to be true that the First Minister has said that he would boycott this process, what then would be the view of the Government?

My Lords, all I can say is that there has been ongoing discussion between Ministers of this Government and the Scottish Government since May of last year on a whole range of issues, including those relating to the Scotland Bill and UK Ministers trying to ensure that they can get some information from the Scottish Government about the referendum. I do not think that the details of this specific consultation document were discussed in detail but we have certainly been challenging the Scottish Government to indicate to us how they think that they could deliver on their manifesto commitment.

On the boycott, I very much hope that that will not happen and that people will realise in Scotland that what is being proposed here is a way forward. My noble friend Lord Forsyth expressed it absolutely succinctly: what is happening is a way forward for them to have their policy delivered in a legal way without it being challenged in the courts, which would be in no one's interest. That would lead to uncertainties and bad feelings, and perhaps be an indecisive outcome. That would be in no one's interests. Perhaps, in the cold light of day, it will be seen that what is proposed here is a sensible and very reasonable way forward. I hope that sense and reason will prevail.

My Lords, I would like to probe further the fury of the SNP on this issue. Will the Minister confirm that these proposals merely aim to create a fair, appropriate and legal framework that will allow a referendum on independence to take place—a referendum that will in fact be organised by the Scottish Government on terms fixed by the Scottish Parliament, all as promised by the SNP? Will he confirm that Alex Salmond and his Ministers will be able to set the wording of the referendum question, provided that the Electoral Commission agrees that it is not biased, rigged or gerrymandered in any way?

What is the SNP moaning about? As the consultation document makes clear, the most recent Scottish Government document on all this said that they wanted to have a referendum as soon as possible—and a referendum on independence, not on devo-max or on anything else. That is not, I remind the House, SNP policy. Is it not the truth that Alex Salmond is now desperate to have a second question to give him and his party an emergency escape route from the political meltdown that he will face when he loses a vote on independence? We should not give him that lifeline.

The simple answer to that is that we want a decisive referendum, and one of the key means of delivering that is to have one question. That is why the draft order that we propose makes provision for just one question. It would allow for provisions in relation to the UK Parliament for UK-run referendums to be applied to the Scottish Parliament and the Scottish Government, but we believe that that one question will resolve matters and we should not be muddying the water with devo-max—whatever that means. No one has a clue what it means; it was not in the SNP manifesto. What was in that party’s manifesto was a question about Scottish independence, and that is what we believe we are assisting the Scottish Parliament to deliver. I hope that the SNP will recognise that this Government are being very fair and reasonable in trying to achieve that end.