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Scotland: Referendum

Volume 739: debated on Monday 15 October 2012


My Lords, with permission, I shall now repeat a Statement made by the Parliamentary Under-Secretary of State for Scotland in the House of Commons a few minutes ago. The Statement is as follows:

“You will appreciate that my right honourable friend the Secretary of State for Scotland is unable to deliver the Statement to the House today, as he has attended the meeting between the Prime Minister and the First Minister in Edinburgh to secure agreement on the independence referendum for Scotland.

In January of this year, my right honourable friend the Secretary of State for Scotland delivered a Statement to this House about the referendum. At that time, we acknowledged the Scottish National Party’s victory in the May 2011 Scottish parliamentary election and its manifesto pledge to hold an independence referendum. The Government also made clear their view that the Scottish Parliament did not have the legal power to legislate for an independence referendum. My right honourable friend the Secretary of State made an offer then that the UK Government would bring forward an order to give the Scottish Parliament that legal power. Since January, the UK and Scottish Governments have held consultations. There has been considerable public debate and numerous discussions between Ministers. Many of those discussions took place between me and Bruce Crawford MSP, Minister for Parliamentary Business and Government Strategy in the Scottish Government, and I would like to acknowledge his contribution.

Following 10 months of deliberation and four weeks of direct negotiations between the Scottish Government’s Deputy First Minister and my right honourable friend the Secretary of State, I am pleased to report to the House that, today in Edinburgh, the Prime Minister and the First Minister have made an agreement that will allow a legal, fair and decisive referendum to take place. This is a significant agreement. The two Governments have agreed that there should be a referendum. We have agreed that the referendum will consist of a single question. It will offer a choice between independence and remaining within the United Kingdom. We have agreed that it must be held before the end of 2014. The referendum will be based on the normal legal framework for UK referendums, with oversight from the Electoral Commission. This includes the key issues of how the referendum question will be determined and how the rules governing spending and campaigning will be established.

Following today’s agreement, the Government will bring forward an Order in Council under Section 30 of the Scotland Act. I have today placed a copy of the agreement and the draft order in the Library of the House. The agreement and draft order are also available to Members from the Printed Paper Office. This order will be laid before Parliament on 22 October and will be debated by both Houses of this Parliament and by the Scottish Parliament. All Members of this House will have the opportunity to consider and vote on the order. If both Parliaments approve the order, and after it is approved by Her Majesty in Council, the Scottish Parliament will have the legal competence to legislate for the referendum. We hope that the order will be passed by February 2013; once that has happened, the Scottish Government will introduce a referendum Bill setting out the wording of the question, the date of the referendum and the rules for the campaign for the Scottish Parliament to consider.

As part of today’s agreement, the two Governments have agreed that the rules for the referendum will be based on the rules set out in the Political Parties, Elections and Referendums Act 2000. Those rules were used successfully in the two referendums that took place last year. The two Governments have also confirmed that the Electoral Commission will review the proposed referendum question and that its report will be laid before the Scottish Parliament. This is the same process as applies to other UK referendums. Interested parties will be able to submit their views on the question to the Electoral Commission in the usual way. The Scottish Government will then respond to the Electoral Commission’s report.

Both Governments are agreed on the need for maximum transparency in this process and for a level playing field. Therefore, as part of today’s agreement, the Scottish Government will consult the two campaign organisations that have been established for their views before proposing spending limits for the referendum campaign to the Scottish Parliament. The Electoral Commission will also provide the Scottish Government with advice on the appropriate spending limits for the two campaigns in the referendum, as has 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 applying to elections to the relevant legislature. In its response to both Governments’ consultation documents, the Electoral Commission provided its view that this model remains appropriate for the Scottish independence referendum.

Both Governments agree that all those who were entitled to vote in the Scottish Parliament elections in May 2011 should be able to vote in the referendum. As for all other referendums held in any part of the UK, it will be the legislation that establishes the referendum that will set the franchise. It will therefore be for the Scottish Parliament to define the franchise in the referendum Bill, as it would do for any other referendum or, indeed, election on matters within its devolved competence.

Although both Governments are agreed that the basis of that franchise will be the franchise for the Scottish Parliament elections, the Scottish Government have previously set out their proposals for extending the franchise to allow 16 and 17 year-olds to vote. It will now be for them to make the case for that change and to deal with the technical issues that may arise. There are, of course, a range of opinions in this House about changes to the voting age. However, having agreed the principle that the Scottish Parliament should have the legal power to legislate for the referendum—that it should be a referendum “made in Scotland”—the Government accept that it should be for the Scottish Parliament to determine the franchise. I fully expect that the Scottish Government’s proposals will be robustly debated in that Parliament. Any decisions taken by the Scottish Parliament for the referendum will not affect the voting age for parliamentary and local government elections anywhere in the United Kingdom.

Today’s agreement is important, as will be the consideration of the agreement and the order by this House, but I would also like us to reflect on what will come after. Now that the Governments have agreed the process for the referendum, it is vital that we get on with the real debate about the most important political decision that people in Scotland will ever take. The UK Government have already started to prepare the analysis and evidence that people in Scotland are calling for. Over the next year, this Government will publish thorough, evidence-based information that will set out the key issues in the independence debate. That analysis will be comprehensive, robust and open to external scrutiny. I fully expect it to show that Scotland is better off within the United Kingdom and that the rest of the United Kingdom is better with Scotland as part of it.

This Government believe passionately in the United Kingdom. We will work tirelessly over the next two years to show the Scottish people—and everyone else in this country—that together we are stronger, that together we can overcome the challenges confronting us and that together we can build a better future for Scotland as an integral part of the United Kingdom. The debates ahead will no doubt be long; they will no doubt be challenging and, at times, heated. But I fervently believe that, with the support of colleagues across this House, across Scotland and across the whole of the United Kingdom, in autumn 2014 fellow Scots will join me in choosing to stay part of the United Kingdom. We are indeed better together”.

My Lords, that concludes the Statement.

My Lords, I thank the noble Lord for repeating the Statement made in the House of Commons. As my honourable friend Margaret Curran has stated in that place, this is indeed an historic day for Scotland. We—the Labour Party—welcome the fact that an agreement has been reached and we can now start to get beyond the process. Nevertheless, there are a number of matters on which this House would like more information. These relate particularly to the franchise, the campaign finance and the wording of the question.

If votes at 16 and 17 are to be introduced, legislation should be introduced across the UK for every election so that proper scrutiny can be given to such a process, not just a one-off referendum. There are awful practical difficulties in this. Scottish Labour has estimated that as many as 54,000 16 year-olds could miss out on being able to vote, so we need clarification on how these arrangements will be made to ensure that those qualified to vote actually get the chance to vote. Has any advice been sought from the Electoral Commission on the fairness and practicality of allowing this change to be made?

On campaign finance, the Scottish Government cannot be the referee and the player. The deal is clear: the Electoral Commission will act as an independent overseer of the process, including finance and the wording of the question. No Government have overruled the Electoral Commission; the First Minister should not start. We need independent, external oversight of campaign finance from the Electoral Commission to ensure fair play. It should also be borne in mind that the Scottish Government are retaining the £1 million paid-for army of spin doctors throughout the campaign. What guarantees have the UK Government received from the Scottish Government that Electoral Commission limits and the fair rules of the UK Political Parties, Elections and Referendums Act will be followed?

It is right and proper that Scotland’s trade unions and businesses should be able to have a say on an issue of this importance to our nation’s future. How does the agreement ensure that they will be given a fair chance to have their say and support the campaigns? There is another question on which many of us have been approached. Will Scots living in the rest of the UK, who will not have a vote, be able to support the campaign?

On the referendum question, we want a clear and unambiguous question that provides a fair choice for the Scottish people. Any questions should be thoroughly tested by the Electoral Commission. The agreement that has been reached by the Scottish and UK Governments allows for the Scottish Parliament to set the question in consultation with the Electoral Commission. As we all know, how a question is put can play a great part in how people respond to it, so we are looking for the UK Government, in these discussions with the Scottish Government, to seek and get these guarantees. There is a lot of discussion about detail to be entered into from the UK Government’s point of view.

Having experience in Scottish politics—as has the noble Lord, who at the very least has been an observer—I believe that we need to ensure that what is actually said on behalf of the First Minister or by the First Minister is thoroughly scrutinised and checked to make sure that what he says is what he actually means. This is clearly the most important issue facing the Scottish people. We in the Labour Party believe that our place in Scotland is within the United Kingdom, as the Minister has said, both for Scotland’s sake and for the United Kingdom’s sake. We in the Labour Party hope that the Government are competent enough to handle these negotiations and we will play our part in trying to convince the Scottish people that their future and the UK’s future are better with Scotland as part of the United Kingdom.

My Lords, I very much welcome what the noble Lord said in his closing remarks. He is right to say that all of us, across the political divide, should work together to get a result whereby Scotland feels part of the United Kingdom and wants to continue in what has been one of the most successful, if not the most successful, partnership that the world has ever seen.

The noble Lord asked a variety of detailed questions and I shall try to answer them. He started by saying that this was an historic day. It is; it is the most extraordinarily historic day and one that I never wished to see. I, for one, never thought that the Scottish nationalists would be able to achieve the majority that they did under the electoral system used for the Scottish Parliament, but in May 2011 the SNP won an outright majority; it won 69 of the 129 seats and part of its commitment was that there should be a referendum, even though it knew that it did not have the legislative ability to achieve that.

The noble Lord asked about the franchise. I expect that we will come back to that in the course of this debate. The first and most important thing to say is that the franchise is up to the Scottish Parliament to decide; it is not up to this House to decide.

My Lords, I hear some “noes” around the place, but that happens to be the position. Noble Lords may not agree with it, but that is the purpose of the Section 30 order: to allow the Scottish Parliament to decide the franchise. The Scottish Government have said that they intend to try to include 16 and 17 year-olds, or certain 16 and 17 year-olds, in the franchise. We believe that there are some difficulties in doing so. I cannot speak for any other political parties, but Conservatives in the Scottish Parliament will campaign and vote against that provision. I, for one, as a parent of teenagers, would rather that my children were learning a bit more maths and physics in school than working on whether they should be voting in the referendum.

Of course, advice from the Electoral Commission is not statutorily binding on the Scottish Government or the Scottish Parliament, but when it comes to the question I think that there would be a political price to pay not to take the advice of the Electoral Commission, which has been specifically set up to offer such advice. It has given advice to the Scottish Government in the consultation process on the franchise and will no doubt do so on the question. The same goes for the financing of the referendum and the referendum campaigns.

As for Scots living in the rest of United Kingdom, I see no reason why they should not be part of the debate on policy and funding, but that will ultimately be a matter for the Scottish Parliament.

The noble Lord’s penultimate remark was about scrutiny of the First Minister. That will depend on the quality of the scrutiny carried out in the Scottish Parliament. I hope that a great deal of scrutiny of these measures is given in the Scottish Parliament.

My Lords, has my noble friend had the opportunity to look at the Scottish Government’s website this afternoon? It states quite clearly that after the Section 30 order has been agreed, the Scottish Government will bring forward legislation that will set out the date, the franchise, the wording of the question, the rules on campaign finance and other rules governing the conduct of the campaign. It states:

“A final decision on these aspects will be taken by the Scottish Parliament, taking full account of the responses to the Scottish Government’s referendum consultation”.

If a final decision has not been taken, and will be taken by the Scottish Parliament, what exactly have my right honourable friends the Secretary of State for Scotland and the Prime Minister been negotiating about? If we are being asked to buy a pig in a poke and to pass a Section 30 order before we know the contents of the Bill, is that not marginalising the House of Commons? Would it not be better, at the very least, given that we cannot amend a Section 30 order, that we do not pass that order until we have seen the draft Bill that is to be put before the Scottish Parliament?

My Lords, I always like it when my noble friend agrees with me and when I am in agreement with him. Sadly, that is not the case on this occasion. The key question is: what does this agreement today mean for the people of Scotland? It means, first of all, that there will be a single question on the ballot paper—no more than that. We understand that many in the Scottish Government wanted a two-question referendum. Secondly, there is a time limit. We now have certainty that the referendum must take place before the end of 2014. That is a tremendous advantage to clear the air, to remove the poison at the heart of Scottish politics and to give real certainty to politics throughout the United Kingdom.

I cannot disagree with the list that my noble friend read out. These will be matters for the Scottish Parliament. We are today announcing a Section 30 order that will devolve to the Scottish Parliament the ability to run the referendum and, naturally, it will have to answer those questions.

Will the Leader of the House confirm that a Section 30 order is required to be passed by both Houses of this Parliament? That may be a tall order to achieve. From what he said today, and the manner in which he answered the points made by the noble Lord, Lord Forsyth, one gets the impression that the Scottish Tory Party has learnt nothing and forgotten nothing.

My Lords, on the first question, it will be up to both Houses of the Parliament to agree the Section 30 order. I did not understand the second question at all. To coin a phrase, we are all in this together. Across this Dispatch Box—I do not know where the noble Lord stands on these great matters; I thought that he was rather in favour of the United Kingdom—we will be working together to ensure the desired result in the referendum.

My Lords, we have already had a year and a half of debate about Scottish independence and I must admit that the thought that we are to have another two years of debate fills me with gloom. We have the consolation of knowing that, through that period, public opinion has moved in favour of retaining our position in the United Kingdom and we must hope that that continues.

I was encouraged by what the noble Lord said a moment ago about the Electoral Commission, because the Statement itself was weak on that question. If the Electoral Commission takes the view that any question beginning with the words, “Do you agree that”, is a leading question, surely it will not be possible for the Scottish Parliament to ignore that. Would it not be better than having a yes/no question simply to have two conflicting statements against which the electorate put a cross: either, “I am in favour of Scottish independence”, or, “I am in favour of retaining the United Kingdom”?

My Lords, under this legislation, the referendum must take place by the end of 2014—I think that essentially it is understood that it should be in the autumn of 2014—so there is plenty of time to go. Some people will find that hard to put up with; some people will find it reasonable that we should have plenty of time to discuss these important issues. As for the question, the Electoral Commission is not binding on the Scottish Parliament. The Scottish Parliament must ultimately approve the question. The point that I was trying to make is that if there was a leading question with which the Electoral Commission disagreed—its report will be made available to the Scottish Parliament—I suspect that there would be a political price to pay for that.

I welcomed the intervention of the Prime Minister earlier this year because I felt that many outstanding questions had to be addressed. One was the proposed date of the referendum. On that, to secure this agreement, the Government have capitulated. The two years that is now proposed for debate on this referendum could do untold damage, and not only to the Scottish economy—it could affect the British recovery as well. That has been a mistake. On the other side, it is positive that we have now secured agreement that there will be a legally binding referendum. The Scottish Government did not want a legally binding referendum; they wanted a softer option of an advisory referendum and we have stopped that. That is to be welcomed.

On the rules of that referendum, there are serious questions to be answered. Frankly, I am astonished that we have in front of us today the Section 30 order that could be passed by this House and the other House but not the draft referendum Bill that that Section 30 order will enable. In the months since the Prime Minister’s statement in January, I always expected that there would be the Section 30 order at the end of this process and that at the same time the draft referendum Bill on which that Section 30 order was based and on which the agreement had been reached would be published. I am disappointed that that is not in front of us today and I urge the Government to think seriously about pressing the Scottish Government to publish that referendum Bill in advance of the deliberations of this House rather than afterwards.

My Lords, the referendum process is now legally watertight. The draft Section 30 order will provide the Scottish Parliament with the confidence to legislate for an independence referendum if it is passed by both Houses of Parliament.

As to the question of the Bill, there is no Bill before us. We have not seen a draft Bill. We wait to see what the Scottish Government publish. They have not yet published the answers to their consultation process. We would hope to see that soon. The noble Lord started by saying that two years is a long time to wait. We cannot force the Scottish Parliament to publish their draft Bill. We have had this negotiation, we have a time limit and I think that the months will pass by very quickly.

My Lords, I put on the record that I welcome the fact that there is one question and one question alone. That is right and fitting and it saves confusion. However, in the Statement a lot has been made of faith being put in the Electoral Commission. It should be borne in mind that only five years ago, in 2007, at the parliamentary elections the Electoral Commission had to step aside and the taxpayers of this country had to invite a Canadian expert, Mr Ron Gould, to investigate why 85,000 electors had their ballot paper rejected. That is the equivalent of one and a half constituencies in the Scottish Parliament. Because the Electoral Commission had played a part in preparing the electronic machines and making up the ballot paper, it could not get involved. That was a big mistake. I ask the Minister to pay close attention to the internal workings of the Electoral Commission to make sure that no one in this election has their ballot paper rejected.

My Lords, I join with the noble Lord in saying that we have come to the right conclusion that there should be only one question. The most important thing in this debate is that we have absolute clarity of result and the only way of doing that is by having a single question with a yes/no answer.

I very much welcome what the noble Lord has said about the Electoral Commission. It is true, as he knows very well, that there was a problem in 2007 and I am sure that the Electoral Commission has learnt many lessons as a result of it. However, his main point was that Ministers should pay close attention to the workings of the Electoral Commission to make sure that this does not happen in this all-important referendum, and on that I completely agree with him.

My Lords, unless and until any constituent country in the United Kingdom becomes independent, it should surely be bound by the rules of the franchise which apply in the United Kingdom. Does my noble friend not accept that it is wrong to alter the franchise by the back door? That will be the consequence of our kow-towing—that is what it is—to the demands of the First Minister of Scotland. Can we please have the opportunity at the very least to see this draft Bill before we approve the order? If we do not, some of us may not feel inclined to approve it.

My Lords, I cannot give my noble friend the comfort that he wants. There is nothing that we can do to oblige the Scottish Parliament to publish a draft Bill, and this very much depends on the process of the passage of that Bill in the Scottish Parliament.

On the second point on the franchise, such voting already takes place in Scotland. The Scottish Parliament decided that 16 and 17 year-olds who turned 18 during the lifetime of the register would be able to vote in the health board elections. It may be a small example but it is an example of where devolution on the franchise has already taken place. I reiterate that I am not in favour of a change in the franchise but it will be a matter for the Scottish Parliament to decide.

My Lords, everyone in this House accepts that in these discussions compromise is necessary. But that compromise has to be informed by the need and the criteria for clarity, fairness and legitimacy. Let us accept that having one question certainly meets those criteria. However, there are two areas which fail to meet those criteria.

First, the idea of having the Scottish Parliament and the SNP effectively decide the question is not liable to assist in either legitimacy in the long run or fairness in the short term. There may be inadequacies, as has been pointed out, about the Electoral Commission, but I am sure that if anyone in Scotland was asked who was likely to be more objective in choosing a question between the SNP and the Electoral Commission, I would not bet against the Electoral Commission winning that judgment.

Secondly, as my noble friend Lord McConnell pointed out, to ask people to vote for a Section 30 before they know what they are voting for is similar to asking people to vote on devo-max before they know what they are voting on. Since we argued successfully against that—that people should not be asked to vote for a “pig in a poke”—if that applies in the Scottish referendum surely it applies in this House and the other Chamber.

My Lords, the noble Lord said that compromise was necessary and I think that all those who have followed this process would agree with him. He also mentioned clarity and we do have clarity in the single question. I am one of those who have never entirely understood what is meant by devo-max, and if you ask three people what they think it is you always get four different answers. Therefore, it is entirely right that we remove the opportunity for that question to be asked.

The question on the paper will be a question on independence. The precise wording will be for the Scottish Parliament to determine and will be set out in the referendum Bill to be introduced by the Scottish Government. However, the Scottish Government have agreed to refer the proposed referendum question and any preceding statement to the Electoral Commission for review of its intelligibility. It is important that interested parties will be able to submit their views on the proposed wording to the Electoral Commission as part of the commission’s review process in the normal way.

We have had experience of this already, although admittedly perhaps not on something this important or involving the Scottish Parliament. The Scottish Government will respond to the report, indicating their response to any recommendations that the Electoral Commission may make. The point is that this will be a very public process. Equally, constitutionally it is right that it must be up to a parliament to decide what question should be on the paper. That is what this Parliament would demand and I can understand why we have concluded that it is right for the Scottish Parliament to do the same thing.

My Lords, I am grateful for the opportunity to add to this debate. There has been a startling degree of naiveté on the part of the Government in the negotiations that have taken place so far. I noted that the noble Lord the Leader of the House talked about the need for transparency and a level playing field, and he discussed the fact that a body of work is to be undertaken to ensure that the facts are properly put before the people of Scotland. I say to him that that is not enough. We have already had a degree of sophistry and confusion over whether Scotland would automatically be a member of the European Union and would have to adopt the euro. I have no doubt that, as a Scotsman, the noble Lord the Leader of the House has used the old toast, “Here’s tae us. Wha’s like us? Damn few, and they’re a’ deid”. That means that anyone who suggests that after independence Scotland will not be a land of milk and honey will be rubbished. It is not enough to say that a body of work will be undertaken. There will be a requirement for rebuttal and I ask the Minister to look hard at establishing a panel of neutral experts who will be available for that process of rebuttal.

My Lords, I slightly object to the accusation of naiveté. Many of us warned the Labour Party many years ago that this is exactly what would happen, and it was senior members of the Labour Party who continually told us that this was the thing that would stop the nationalists in their tracks. However, the years go by and now here we are, all working together to try to stop this process. I do not think there is any naiveté anywhere in this Government about the role that the First Minister of Scotland takes or the verbal gymnastics and occasional distortions that take place. The Government are utterly committed to providing evidence-based information to the people of Scotland so that they can very clearly see what the impact of breaking up the United Kingdom would be and what the separatist cause would lead us to.

My Lords, will the Leader of the House accept that, while some tactical advantages may have been gained by the Scottish Administration during the formation of this agreement, these are outweighed by the fact that there will be one single question? Will he also accept that the large increase of powers for the Scottish Parliament in the Scotland Act have been consistently underestimated and that further issues relating to devolution should be set aside until the result of the referendum is made entirely clear?

Yes, my Lords, I agree with my noble friend that there is no need to discuss any further devolution settlement until the referendum has taken place and that there is also a pipeline of provisions in the Scotland Act. I am not sure that the nationalists have received a tactical advantage, but it is now right that the decision should be brought to the Scottish people.

My Lords, there is a paragraph in the agreement which says that,

“the referendum should meet the highest standards of fairness, transparency and propriety”.

I have one simple little question. If, after we pass the Section 30 order, the UK Government think that the proposals do not meet the highest standards of fairness, transparency and propriety, what recourse do they have?

My Lords, I have tried to explain that the Scottish people—who, as the noble Lord knows well, are a fair-minded and educated people—will see through anything that is not fair-minded and responsible. The time has come to trust the people of Scotland. As my noble friend Lord Steel pointed out a few minutes ago, it is true that as this debate has raged in the past couple of years the opinion polls have swung in favour of maintaining the United Kingdom.