House of Lords
Wednesday, 16 January 2013.
Prayers—read by the Lord Bishop of Exeter.
Property: Leasehold Valuation Tribunal
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.
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?
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
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.
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?
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.
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?
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.
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.
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?
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.
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.
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.
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.
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.
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?
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.
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.
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.
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?
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.
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
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.
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.
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?
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.
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?
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.
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.
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.
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.
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.
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.
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.
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?
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.
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?
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
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.
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?
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.
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?
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?
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.
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?
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.
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?
Age of Criminal Responsibility Bill [HL]
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
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
European Union (Croatian Accession and Irish Protocol) Bill
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.
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.
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.
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]
Scotland Act 1998 (Modification of Schedule 5) Order 2013
Motion to Approve
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
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.
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.
We also sought views on the—
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?
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.
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?
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.
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?
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.
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.
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.
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.
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.
Amendment to the Motion
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”.
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.
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.
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.
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”.
However, he went on to say:
“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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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”.
We stated at paragraph 21:
“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”.
We then made a crucial point:
“Neither the draft section 30 Order nor any other part of the Agreement stipulates what the referendum question is to be. This will be”—
as we have learnt—
“a matter for the Scottish Government to propose and for the Scottish Parliament to determine”.
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”.
In paragraph 33 we said that,
“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”.
Our conclusion was that:
“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.
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.
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.
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?
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.
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—
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.
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?
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.
The Scottish Government appear to want—I think that we have to be very careful about the words that we use, as I said to the noble Lord, Lord Forsyth, in an intervention—to manipulate the way in which things will turn out in this referendum. It is very important to indicate clearly that separation is very different from any kind of devolution. As shown in the recent somewhat confusing vote regarding membership of NATO, the Scottish Government are going out of their way, in wanting to keep the Queen and in hoping to keep the pound, to try to make it appear that this separation, which will be drastic and irreversible, is no different from the vote that we had on devolution. It is completely different and we must keep saying that.
I referred to funding in an intervention, and I hope that we will get a reply. Again, there seems to be an attempt to manipulate or to try to make sure that the outcome moves in a particular direction, with funding coming from all sorts of sources for the yes campaign, particularly from overseas. We need to know that there will be a ruling, not advice, and to know exactly what the ruling will be and who will make it, so that there will be a level playing field.
Another issue that has appeared in social media—it was reported on Twitter—was that Alex Salmond said today, in an interview on Radio 4:
“The first job of the Scottish Parliament would be forming a constitution”.
There is a misunderstanding of what would happen in the event of a yes vote, on which I think almost all of us here agree, although the noble Lord, Lord Wigley, has not spoken yet. An assumption is being made—an impression is being created—by the supporters of the yes vote that there would suddenly be independence. I hope that the Minister will indicate that it would be a long and difficult process in relation to issues such as the national debt and a whole range of others that will have to be negotiated.
A separate Scottish state could not be created until there had been legislation in this United Kingdom Parliament. Surely, there would have to be further legislation before there could be a separate Scottish state. The referendum is not enough. The detail would have to be worked out. There would have to be negotiations. Some people have suggested, and I hope that the Minister will comment on this, that there might need to be a further referendum on the acceptance of the negotiations at the end of that. I am not sure if that would be the position but it certainly seems arguable that that could be the position.
My main point relates to the report by the Select Committee on the Constitution, mentioned by the noble Lord, Lord Crickhowell. It covered a number of points. Paragraph 27 of the report states:
“It may be, therefore, that irrespective of the legal status of the MoA as a whole, different provisions within the MoA are capable of generating different levels or different kinds of legal or constitutional obligations or expectations”.
Paragraph 28 states:
“It cannot safely be said that the arrangements proposed put the matter beyond all legal challenge”.
My noble friend Lord Browne has already raised the question of legal challenge in relation to the wording of the question. I hope that the former Lord Chancellor, the noble and learned Lord, Lord Mackay, does not mind my saying, but earlier I had the opportunity of discussing this matter with him and he indicated that there may be options of legal challenge here as well. I do not think that it should be used as a threat in any way but we should alert people, the public generally and elected Members of the Scottish Parliament and the Scottish Government, to the dangers of that kind of thing.
I think that that has reinforced the point.
I also want to raise the question of 16 and 17 year-olds, as I have done on a number of occasions. I do not think that people have realised—and certainly the Scottish Government have not realised—the practical problems of identifying and putting these 16 and 17 year-olds on the register. It has been estimated that there may only be a few thousand who are ultimately eligible to vote. We should ask the Scottish Government to tell us how they are going to do this. It has already been made clear that they will have to undertake and fund it; we should ask them how they are going to carry it out.
Finally, one particular problem is that there is so much preoccupation with the referendum by the Scottish Government, the First Minister and Deputy First Minister, by members of the Scottish Cabinet and SNP Members of the Scottish Parliament—they are so preoccupied with the run-up to it and winning it—that other areas that we have devolved to them are being ignored. The health service is not being properly supervised and problems have already been raised. Some of our Labour colleagues in the Scottish Parliament have brought up these concerns. In education, housing, and social work, problems have been raised that are not being properly addressed. We should say to Members of the Scottish Parliament, and particularly to the Scottish Government, that a whole series of very important matters has been devolved to them and they should not let their preoccupation with the referendum and with trying to win it take their attention away from doing a good job in the areas already devolved.
My Lords, when my noble friend Lord Forsyth began his speech he said to my noble friend the Minister that if he were on a charge of murder he would happily employ my noble friend as his defence counsel. I hope my noble friend is honing his skills because they may be needed. I get the impression that my noble friend Lord Forsyth has a completely unhealthy obsession with the First Minister of Scotland, and it is not one that I share. It may go back to the fact that they were at university together, but I thought that his otherwise powerful speech was spoilt by too many references to one individual of whom we should not be afraid.
I am certainly not obsessed with the First Minister but I think it is legitimate to point out that when my noble friend talks about the Scottish Parliament and so on, we all know that the Scottish Parliament is completely dominated by the First Minister. None of the members of the SNP is able to say a word but by his leave. So it is important to realise that, when we think we are devolving power to the Scottish Parliament, we are talking about giving power to Alex Salmond because he calls the shots.
My noble friend has just repeated the point I am trying to make—that he is totally obsessed by one individual. I agree with the noble Lord, Lord Browne, who pointed out that, whether we like it or not, the SNP secured the democratic mandate and this order enables it to carry that out and to hold the referendum. For that reason I support the order.
There are lessons to be learnt from the mistake—the misjudgment—that has been made to keep postponing the process to 2014. This has been mentioned by several other speakers. It is important to notice the difference between this situation and the one in Quebec: during the two years that we have been debating this issue, the support for independence has been going down, not up. This is extremely significant. I suggest that the reason it has been going down is that, quite apart from the 35 questions from the CBI which the noble Lord, Lord Nickson, referred to, there have been three major issues on which the Scottish Government have been found wanting. One already referred to is the legal advice—or rather lack of it—on joining the European Union.
I remember the SNP campaigning very strongly on independence in Europe—in other words, it was not only going to join the European Union, it was also going to sign up to the euro. That has suddenly disappeared: I cannot think why. The SNP is no longer advocating joining the euro. That uncertainty about the relationship of a future independent Scotland with the European Union—on which there was an interesting, long interview this morning on Radio 4—is one of the reasons why support has slowly withered away. The second reason, which is related to it—
Will my noble friend give way? He has helpfully reminded me that there is another implication of that slogan, of course, because just as you can be independent in Europe you can be independent in the United Kingdom. What you are not is separate, which reinforces the points that we made earlier on.
Indeed, I was going on to say that one of the other uncertainties that has been exposed during this prolonged debate is the question of what currency would be used. If the euro is out, and we are not having a separate Scottish pound because we are going to rely on the Bank of England, what sort of independence is that? So the second bit of unravelling has been on the whole issue of the financing of an independent Scotland.
The third—which has also been mentioned by others so I will not go into detail—is on Trident and the defence role of an independent Scotland. My party and I have long been opposed to the replacement of the Trident system—in fact we were opposed to the initial replacement of Polaris by Trident. That is at least a position of principle, even if people disagree with it. What is unacceptable is for the SNP to say, “We want rid of Trident, but we are quite happy if it goes to Devonport or Barrow-in-Furness or somewhere else”. That is not a credible position. Nor is the position, as the noble Lord, Lord Reid, pointed out earlier, of saying, “We would like to join NATO because that makes people feel comfortable, but we will not accept any of the obligations of joining”.
For all these reasons, the longer the debate has gone on—and I have argued before that that was a mistake because people would become bored by it and the uncertainty would not be good for Scotland nor for investment in Scotland—the more the support for independence has declined.
Among those of us who campaigned in the 1980s and 1990s for the restoration of the Scottish Parliament, there was an unspoken assumption that, if we got a Scottish Parliament and a Scottish Government, then the future Scottish Government and the future UK Government would collaborate in the interests of the people of Scotland. Indeed, it is fair to say that, in the first years of devolution, that did happen. Of course there were disagreements occasionally between the two Governments but basically they were both pursuing the best interests of the people of Scotland. I think the biggest single reason why support for independence has declined is that that does not appear to be the position of the SNP Government. Their position is not, “What can we do together with the UK Government to better the life of the people of Scotland?” It is rather, “What can we do to promote the SNP?”. That is a very different position.
During the Olympic Games, the Scottish Government hired the Army and Navy Club in London, at a cost of £400,000 of our taxpayers’ money, to entertain athletes and others visiting the Games: in fact, very few people went. They could have had Dover House for nothing—a substantial building, right in the centre of London, well known—but of course it belonged to the UK Government, so it did not suit the ideal of the SNP. That is a trivial example of what I am saying—that the motivation throughout has been what is in the best interests of the SNP.
I end with the question that everybody else has been raising about the decision on respecting the judgment of the Electoral Commission. Why is the SNP not willing to say now that it will accept that judgment? It is because it wants to promote the interests of the SNP. The more people realise this, the more the support for independence will continue to decline.
I support this order. I am not complacent about the outcome but I am confident that, because of this constant shifting of position by the Scottish Government, in the end people will say that they do not want to make that leap in the dark.
My Lords, every voice that we have heard so far has been a unionist voice. I realise that I may be in a small minority—perhaps even a minority of one—in this Chamber in wishing the people of Scotland well in their quest for independence; none the less, I wish to see a new relationship between the nations of these islands: a new partnership of free and equal self-governing nations co-operating with each other and with partners in the European Union and the wider world.
Today’s debate has involved a series of attacks on the SNP in general and on Alex Salmond in particular, as was mentioned by the noble Lord, Lord Steel of Aikwood, a moment ago. It may well cross the minds of noble Lords that it is a little strange that this House—one of the two Houses of the UK Parliament—does not have any voices from Scotland that represent nationalist aspirations, which is, after all, the driving force behind the forthcoming independence referendum.
I fully understand that the SNP has stuck resolutely to a policy of not putting forward nominations officially in the party name—as indeed did my party, Plaid Cymru, until five years ago. The experiences that my party suffered at the hands of a former Prime Minister may well have persuaded the SNP, which might be sympathetic to securing a voice in this Chamber, not to bother pursuing the matter. Noble Lords may well wish to ponder on the acceptability of a system whereby the leader of one party—albeit a Prime Minister—can determine whether another party, with MPs in the House of Commons, can be denied a voice in one of the two Chambers of the British Parliament.
I hope that the noble Lord, Lord Wigley, will accept that the only responsibility for this situation lies with the Scottish National Party itself. Many of us have argued that there should be representation in this Chamber. In particular, I have argued that Mr George Reid, the Presiding Officer who succeeded the noble Lord, Lord Steel, and who worked with me when I was First Minister, would be an excellent Member of this Chamber. However, because he rightly feels some loyalty to his former party and that party will not put him forward, he is not sitting here. That is wrong, but the responsibility for it lies entirely with the nationalist party, which will not make that decision.
I hear what the noble Lord says. Indications that I have had from Mr George Reid may be slightly different from the interpretation that the noble Lord has given. However, I have no doubt whatever that there were those within nationalist Scotland—not necessarily even members of the SNP—who would have been willing to serve the interests of their country in this House. Be that as it may, the fact that they are not here and therefore cannot participate in this debate is unfortunate. That is why I am contributing, although I have no authority to speak on behalf of the SNP and I certainly would not presume to do so. It is not for someone from Wales to tell the Scottish people what is best for them; nor indeed is it for those from England or Northern Ireland to do so. The decision on whether Scotland should be an independent country lies with the people of Scotland and Scotland alone. I am glad that the draft order before us today arises from the Edinburgh agreement, whereby it will be the Scottish Parliament and not Westminster that determines the date, franchise, question, referendum rules and campaign spending limits. The proposed arrangements for the referendum will be initiated by the Scottish Parliament. The Electoral Commission will then have an opportunity to give its views, and those views will be duly considered by the Scottish Parliament before a final decision is taken. That is the implication of the Edinburgh agreement.
I noted one important point in today’s debate relating to Scottish servicemen based overseas. I know that there are SNP MPs and MEPs who are also actively aware of this and I very much hope that a resolution of the issue can be found.
As I understand it, the resolution in the Scottish Parliament supporting this order was passed unanimously by that Parliament. I also understand that every one of the Westminster parties supports the order. This shows how Governments can work together to achieve a sensible outcome, and I believe that it is to the credit of both the Government of Scotland and the Government of the UK that this has been achieved. It is an indication that Governments can, indeed, work together harmoniously. I have no doubt that if Scotland becomes an independent country as a result of the referendum, there will be equally harmonious co-operation between the Governments in London and Edinburgh thereafter. There has been talk today of litigation and judicial reviews but that sits a little uneasily with the type of co-operation that I have just described.
It is truly excellent that there should be such co-operation and that the referendum will be seen as “Made in Scotland”. That gives greater confidence that the outcome, whichever way it goes, will be acceptable to all the Scottish people as a democratic decision taken by the Scottish nation. I am sure that no one in this Chamber from outside Scotland would want to gainsay that or dispute the fact that this should be a decision for Scotland. To that extent, the noble Lord, Lord Reid, is quite correct that the referendum in Wales on providing further devolution is different from the question of independence and raises the question of whether referenda are really necessary for every small step of further devolution. That was not the case with the Scotland Act last year. There are, of course, implications for the rest of the United Kingdom, and no doubt these will be debated during the referendum campaign, as is right and proper. However, they are not issues that should delay the progress of the draft order before us today.
Incidentally, I think it is a little disparaging towards Scottish voters to suggest that they may not understand that voting “yes” will deliver an independent state, even on the basis of the question that has been discussed.
In the spirit of the concordat which has led to the draft order coming before us, I humbly suggest that it is less than edifying to hear the personal attacks that have been made again today in this Chamber, and which were perhaps made yesterday as well, on the leader of the Scottish National Party, the First Minister of Scotland. Quite honestly, references to “no honesty, integrity or consistency”, allegations as to his honesty, and the suggestion today that he wants to rig a referendum and that distortion might take place are not, I believe, worthy of this Chamber and, perhaps more importantly, may not be conducive to the cause that noble Lords are promoting. It does no credit to the democratic process to resort to personal attacks, and I would suggest that it is also counterproductive.
I am very grateful to the noble Lord for that intervention. Certainly, not all speakers have done that. I noted the contribution of the noble Lord, Lord Browne, which was very constructive. It hit a tone that can help to ensure that there is no dispute on matters that are irrelevant to the central question. That central question is whether people want independence. No doubt there are arguments to be had on that and the other issues should be put to one side.
I do not know whether the noble Lord is about to conclude but he has covered everything except one point. It is the main point here and concerns the nature of the question. Does he accept that under any referendum a leading question is an unfair premise on which to base a democratic decision?
Yes, of course, I accept that without reservation. The point is whether the question that has been proposed is a leading question, and there will be differences of opinion on that. I have no doubt that the Electoral Commission will give its opinion on the question and of course the Scottish Parliament will take considerable note of what the Electoral Commission says. It would be strange if it did not. However, to suggest that the Scottish Parliament or any Parliament should automatically accept the ruling of a body such as this takes the issue much further. If we were to argue that Westminster should automatically, under any circumstances, always accept the suggestions put forward by the Electoral Commission, irrespective of whether the Government or indeed the whole Parliament agreed with it, that would be unacceptable here, and I suggest that it would be unacceptable in the context of Scotland as well.
With respect, the noble Lord has set up a straw man. I did not suggest that every recommendation should be accepted. I suggested that if the question is deemed by the arbitration body, which is neutral, to be a leading question, you should make it plain in advance that you will accept that particular piece of advice. The noble Lord says that no one should ever do it, but perhaps I may say that I would do it. If a referendum were being proposed by any Government, including a Labour Government, which the Electoral Commission said was being skewed by a leading question, I would accept the arbitration of the Electoral Commission. The noble Lord implied that he would as well if the question was denoted by a neutral body as a leading question. The question that we have been asking is why that cannot be done by the First Minister and the SNP in Scotland.
I am very grateful to the noble Lord. If indeed the Electoral Commission were to come out and say in categorical terms that this is a leading question and is totally unacceptable, and that that is clear cut in its opinion, then that opinion must be taken on board by the Scottish Parliament. I have no doubt that it would take good note of any such recommendation. I have faith in the democratic process in Scotland. However, to say that whatever the Electoral Commission says, the Scottish Parliament must accept its ruling as opposed to the decision of elected representatives, is surely one step too far. Be that as it may, I support the draft order that is before us today. I hope that the House will give it a unanimous backing so that we can move forward to the next stage of this process and, ultimately, secure a referendum, whatever the outcome, that is a credit to democracy.
My Lords, the noble Lord, Lord Wigley, whom I am very pleased to call a friend, said that his would probably be the only voice advocating independence. Mine appears to be the only English voice in this debate today. We have heard two from Wales and the rest from Scotland. I particularly wanted to take part because this is not a Scottish issue. This is an issue that affects the whole United Kingdom. As I have said in this House before, we all have varied backgrounds, and it is very difficult to isolate the pure Scottish from the pure English. I consider my identity as English, and yet the background of my family is Scottish for centuries. My elder son lives in Scotland with a Scottish wife, and my two grandchildren go to school in Edinburgh. My son considers himself Scottish, so Scottish indeed that he acted as the election agent for the daughter of the noble Lord, Lord Steel—because he has gone Lib Dem—in a recent election.
Yes, indeed, successfully. That, of course, in its simple way illustrates the fact that within this Chamber and within this country, there are very few of us who can say that we are wholly this, that or the other. It is therefore important that there be English voices in this debate. After all, England is by far the largest country in the union, and we will all be affected for generations to come if, on the anniversary of Bannockburn, the Scottish people vote to sever their links with the United Kingdom.
My noble friend Lord Forsyth made an absolutely splendid speech. He has been taken to task by one or two people for being too personal. I would like to dissociate myself from personal attacks but also to agree with the substance of what he said. I know Alex Salmond very well. I met him on the first day that he came into the other place. Quite by chance, my wife and I and our family found ourselves for successive years taking holidays on the beautiful island of Colonsay at the same time as Alex Salmond, and having many an agreeable conversation at the bar. He is an engaging man. Personally, he has many delightful qualities. However, he is one of the two most skilful politicians in the United Kingdom at the moment, the other being Boris Johnson. We underestimate his political skill, dexterity and ability at our peril. We must take him very seriously, and we cannot assume that the referendum will go the way that most of us in this Chamber would like it to go.
As I listened to my noble friend Lord Forsyth, and as he was almost convincing himself that he was wrong not to press this to a Division, so he was almost convincing me. Of course I accept his judgment and I will not attempt to divide the House. However, the agreement that was negotiated was not so much an agreement as a capitulation. The Prime Minister, for whom I have high regard, and the Secretary of State for Scotland had Mr Salmond running rings around them. They conceded far too much. It is a great pity that the Parliament of the United Kingdom in its two Houses will not have a greater say in these crucial decisions that will be taken. The Scottish Parliament will be judge and jury when it comes to deciding the question.
We all know what the question to the Scottish people is. It could be framed in the simple terms, “Do you wish to leave the United Kingdom?”. However, what is being proposed at the moment is certainly, as has been said, a leading question. It invites the answer that Mr Salmond would like. That is why over these next months—we have less than two years—it is important that the series of papers that has been referred to is produced not only by the British Government but by the cross-party alliance that is being spearheaded in Scotland by Mr Darling—an admirable choice, I believe. It must be spelt out to the Scottish people, whose decision this ultimately is—I am not one of those who advocates every citizen in the United Kingdom having a vote—just what they will be losing and what they will be leaving.
I was delighted that the question of the votes of Scottish service men and women, who serve our country, often in extremely dangerous circumstances, was brought up in this debate. They of all people, wherever they are temporarily domiciled, must have the opportunity to cast a vote on the future of the country for which they are prepared on a daily basis to lay down their lives.
It is going to be an extremely interesting and, I hope we can say, good-humoured period. However, the stakes are extremely high. The noble Lord, Lord McConnell, pointed to the dangers of bitterness creeping in. Of course, he did so with his background knowledge—knowledge that we all have—that of all wars, the bitterest are always civil wars. This will be a civil war of words, to a degree. It is crucially important that we try to keep it good-humoured. That is why, although it is right to talk about the political skills of our opponents, we do not seek to denigrate them personally as individuals.
I very much hope that there will be an opportunity during the coming 18 months for those of us who have Scottish links, Scottish roots and Scottish branches of our family to play a part in this debate. We need to say to the people of Scotland, “You are a fundamental and integral part of the United Kingdom, and we need you because we need each other”. The United Kingdom is far more than the sum of its individual parts, and there is no individual part that has made a greater contribution to our history and success as a nation than Scotland. We do not want to lose that.
There is no point in resurrecting all the arguments over devolution. I remember them well because I was in the House of Commons when the very first Scottish National Party Member, Donald Stewart of the Western Isles, came—he was a lovely man. I saw all this, and took part in debates in the early 1970s and throughout that decade. Big mistakes were made by both major political parties. The biggest mistake made by the Conservative Party was neglecting to recognise the reality of the first devolution vote. It failed because it did not clear a parliamentary hurdle but it indicated aspirations in the Scottish people. During those 18 years, I was one of a group who went to see Mrs Thatcher, as she then was, to beg that something be done: perhaps we should start having the Scottish Grand Committee sitting in Scotland regularly and frequently; or there should be a consultative assembly of Scottish local authorities. Sadly, she did not want to listen. That was a great mistake.
I will never forget travelling up to Scotland on the sleeper and having a dram or two with Donald Dewar in 1996. I said, “What would have happened, Donald, if we had done that in 1979 or 1980?”. “You’d have shot our fox”, he said, “but it’s far too late now”. We are, as they say, where we are. We have a United Kingdom. There are cracks and fractures and it is our duty collectively to repair them. I am sorry that the order is phrased as it is. I am sorry that so many concessions have been made, but those of us who believe in the United Kingdom all have a duty to fight for its integrity in the year ahead.
My Lords, my view of the Edinburgh agreement is closer to the noble Lord’s than that of the noble Lord, Lord Stephen. I scored the Edinburgh agreement a three-to-one win to the First Minister of Scotland. He seemed to lose on the number of questions but he won on the franchise, which is not a very important point; he won on the date, a more important point; and he won on the big point, which is the question itself. It is to that issue that I want to come back. I shall follow what was said by the noble Lords, Lord Sutherland of Houndwood and Lord Browne of Ladyton, and ask the Minister for a view on the internal wording of the Edinburgh agreement and its significance. I am referring to paragraphs 8 and 12.
In paragraph 8 we are told:
“Consistent with provisions in PPERA”,
the Electoral Commission will review the wording for its intelligibility. I do not know why these words are there but they worry me. Paragraph 12 has a straightforward reference to the PPERA, which gives the Electoral Commission responsibility for,
“commenting on the wording of the referendum question”.
What is the remit given to the Electoral Commission? The Constitution Committee’s excellent report—I am grateful to the noble Lord, Lord Crickhowell, for reading from it—shows that that committee, too, is nervous on that point. It says:
“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”.
It says that,
“the Electoral Commission will consider whether the referendum question … presents the options clearly, simply and neutrally … we would expect any departure from the Electoral Commission’s recommendations on the wording of the question to be robustly scrutinised. We hope that there will be no such departure”.
I share all those sentiments, obviously.
Why is the word “intelligibility” there? Why is it necessary to have the narrower definition of the role of the Electoral Commission? It is easy to envisage a question that is completely intelligible but also leading or misleading. I am nervous about the role of the Electoral Commission in this respect. I do not want to exaggerate the point. It would be resolved if the challenge of the noble Lord, Lord Sutherland, were accepted. We need to know the view of the Edinburgh Parliament in principle on what it would do—not when it has seen the language but its view of the language produced by the Electoral Commission.
The noble Lord’s question is particularly apposite as to why this limited reference was made when one considers that the Electoral Commission in 2009 set out the referendum question assessment guidelines, which included:
“Is the question written in neutral language, avoiding words that suggest a judgement or opinion, either explicitly or implicitly?”.
That takes it much further than the question that has just been raised by the noble Lord.
That is precisely the point that I am trying to make. Is the reference to “intelligibility” in some way limited to it or could it be construed in a court of law as in some way limiting the normal role of the Electoral Commission and its role envisaged in 2009?
Is not the agreement made between the Prime Minister and the Scottish First Minister a gentleman’s agreement? It is not an international treaty, which can be made only between sovereign states. Although everything that the noble Lord says has every relevance in the moral context, in terms of legal consequence and strict constitutionality it must be the case that it is no more and no less than a gentleman’s agreement, binding, of course, as it is.
I wonder whether it would be helpful to do so now, as it has been raised. The word “intelligibility” is used because Section 104(2) of the Political Parties, Elections and Referendums Act 2000, passed by this Parliament, states, in relation to a referendum question, that the Electoral Commission,
“shall consider the wording of the referendum question, and shall publish a statement of any views of the Commission as to the intelligibility of that question”.
That is why the word, “intelligibility” has been taken from the statute and put into the memorandum. As the noble Lord rightly points out, the Electoral Commission set out in its 2009 guidance and guidelines, which I quoted when moving the Motion, how it intends to go about determining intelligibility. I hope that that clarifies why the word was used. The other matters to which the noble Lord referred, such as ease of understanding, lack of ambiguity and avoiding misleading voters, are part of the criteria that the Electoral Commission has indicated that it applies when undertaking the word, “intelligibility” in statute.
I am grateful to the Minister and in some way reassured. It seems to me that we need to keep a close eye on this issue. I strongly agree with the challenge raised by the noble Lord, Lord Sutherland, but I think in his normal, consensual, non-polemical way, the noble Lord, Lord Reid of Cardowan, got it absolutely right. There may be a fox around, but the Scots are not chickens. They are not stupid. If there is an attempt to rig the question, and the advice from the Electoral Commission, speaking to its remit as described by the Minister, is dodged or not responded to positively, it would be a considerable down side with the electorate in Scotland. The question of the question is very important, but let us not exaggerate it. If it is not a straight question the Scots are even more likely to give it a very straight answer.
My Lords, I rise at this stage in the debate because a woman always likes to get, if not the last word, at least something near to that and it has been a singularly male debate so far. I make that point quite deliberately. If you look at the polling in Scotland, you will discover that, in the course of this debate about separation, women have increasingly become in favour of the union and men have remained static. Whether that is about “Braveheart” or the football, I do not know. The other side of the coin is that women are concerned about jobs and their children’s future. They recognise that there are always those who suffer when there is divorce—and what we are talking about is divorce.
Let me be blunt. If the First Minister thought that there was a majority for the break-up of Britain, the referendum would have taken place by now. We proved in 1997, with the devolution referendum, how quickly a referendum could be done. What the First Minister is counting on is either boredom on the part of the electorate—and there is a very strong chance that that will happen—or complacency on the part of those who favour the union. That has been commented on a couple of times this evening. There is a risk of complacency. I am fed up with taxi drivers telling me that there is no way Scotland is going to vote for the break up of Britain. There is an assumption that it is in the bag. It is not.
During the Scotland Bill deliberations in this House, I said—and I am not one for quoting myself but I quite like this quote—that we wanted a referendum without jiggery-pokery. As the noble Lord, Lord Forsyth, laid out in his excellent speech, what we are discussing this evening is the potential for jiggery-pokery. We have had a bit of it before—and this is not a personal attack. We have had obfuscation on the question of the legal basis of Scotland’s role in Europe; we have had a situation where Hansard in the Scottish Parliament has been altered; and we have had misleading figures given on further education, to name but three examples. This is a critical decision for Scotland and a critical decision for the rest of the United Kingdom. We owe it to all of the people of these islands to make sure that it is done on a sound and sustainable basis so that the day after the referendum each one of us can turn around and say that we won or we lost, and the other side accepts the decision.
I support much of what the noble Lord, Lord Forsyth, has said. I could not have followed him into the Lobby this evening, so I am glad he is not testing the opinion of the House, because I believe it would have led to delay. We have heard about the situation in Quebec, and I acknowledge what the noble Lord, Lord Steel, has said about the separation support going down, but a week is a long time in politics. Who knows what will happen between now and the referendum in 2014? It is critically important that we put aside petty divisions on these issues, which are much too big for the future of this country.
One very important issue that was raised by the noble Lords, Lord Reid and Lord Cormack, and others, is the question of allowing the vote to be made available to those in our Armed Forces. I do not know how they did it in 1945; they must have found a way to do it in 1945. Surely, it is not beyond the wit of a sophisticated democracy to find a way of giving our soldiers, men and women alike, the opportunity to vote in 2014, the year that marks the centenary of the First World War, when many of our families went to fight for a United Kingdom.
The challenge with the order that exists for us is to acknowledge, as a number of us have, that we should have been given an opportunity to debate these matters in this House. It should be recognised that we are a partnership. Those of us who sit in this House are unelected Members—but many of us have served our time at the other end of the corridor and have come from different parts of civil society in this country. We are entitled to a voice, and our colleagues at the other end of the corridor have a democratic right to that voice. It is unfortunate that they were not given that opportunity. I would say, particularly to the noble Lord, Lord Stephen, that the Prime Minister was either naive or misadvised in the terms that he agreed to in the Edinburgh agreement. The opportunity to get an agreement that allowed for no jiggery-pokery was there, and I am afraid that he dropped the ball—and it is not often that I use sporting analogies.
I sum up in saying that I support the order. I think the position that we are in is flawed, but let us get on with it. Let us get this done and have a debate that is based on consensus and facts. The Government have a responsibility there. I asked previously if it would be possible to have some sort of independent arbiter to look at the facts that are increasingly being thrown around. Sometimes we hear from the First Minister facts that are issued as though ex cathedra that are often not subject to rigorous scrutiny. I support the order, I recognise much of what the noble Lord, Lord Forsyth, has said and I think we have had a good debate tonight. Please can we just now get on with it?
My Lords, I sense that the mood of your Lordships is to move towards the Front Bench speeches, so I shall speak briefly. I congratulate the noble Lord, Lord Forsyth, on another brilliant performance; I think he said it all. However, out of what he and other noble Lords have said, I would like to put two simple questions clearly to the Minister, as it will save me interrupting him when he comes to wind up.
Why did the Government not wait for the advice of the Electoral Commission before they brought forward this order? What was the hurry? Secondly, do the Government agree that the leading question, “Do you agree that Scotland should be an independent country?”, which other noble Lords have quoted, is not an acceptable question to put to the Scottish people?
Finally, I understand that for many Scottish politicians the whole prospect of a referendum and independence for Scotland is very agreeable to their political ambition and hubris. However, I fear that independence may have a very unhappy result for the people of Scotland. Therefore, I can only rely on the faith that I have in the Scottish people that they will not be that easily bamboozled when the time comes.
My Lords, very briefly, and by way of introduction, I believe the referendum will lead to Scotland becoming a better democracy. The process we are involved in at the present moment, and the fact that the Edinburgh agreement was signed in Edinburgh, is a great improvement on what happened in 1921 after a ceasefire in July and fraught negotiations in Downing Street led to a treaty that people probably did not want to sign. The Westminster Parliament has made progress.
I am also mindful of the fact that the original treaty negotiations were held in London in the summer of 1706, and it is a curious phenomenon but the two sides were not allowed to meet. They had to negotiate from separate rooms, sending messengers to each other. We should make certain that we do not remain in that position. At the present moment, listening to the debate, it does slightly sound as though this House wants to talk to the Scottish Parliament without meeting its Members. I hope we can continue to make progress towards proper democratic discussion.
My Lords, the noble Earl is concerned that people only met at a later stage in separate rooms. People in negotiations that I have been involved in have been in separate nations, separate continents and different places before we actually got together, so we are well versed in “proximity talks”, which I think was the phraseology that was invented to cover those circumstances.
We seem in this country, of late, to have developed referendumitis, because we are looking at a whole series of them now. Indeed, later this week, we may be offered a menu for further referenda. Not wishing to be outdone by the noble Lord, Lord Cormack, the sole English contributor to this debate, I felt it appropriate for my part of the world to make a few comments, because, as noble Lords have said throughout the debate, all of us would be affected one way or the other. However, the most important thing is that we are a union with component parts, and there is no doubt in my mind that the people of Scotland have a right to choose. The job of this Parliament is to ensure that the choice is fair and that the options are put to them clearly, as has been said many times before.
I will just deal with the order, because noble Lords will all have great sympathy with much of what the noble Lord, Lord Forsyth of Drumlean, has said today. However, I think that the noble Lord, Lord McConnell of Glenscorrodale, who is not in his place at the moment, put his finger on it. Whether we like it or not and whether this Parliament has had enough time to debate it or not—and I think it has not—the fact is that the Prime Minister and the First Minister have shaken hands. Quite frankly, any departure from that at this stage would have cataclysmic results on the implications and how that would be spun in the circumstances. It is done, and whether we like it or not, we have to work with it.
I will also deal with the point of breakdown. When we had our referendum—nearly 15 years ago, believe it or not—I had the task of being co-ordinator for the Ulster Unionist Party’s “yes” campaign. Not only were communities divided but so were families—husbands, wives, sons and daughters—and some of those scars have not yet healed. Let us be under no illusions but that the tone in which the debate is conducted is going to very important for the long-term relationships. People keep telling us today of the implications of the miners’ strike and the differences that arose there, and I know that both communities and individuals remained very divided.
Questions of this nature are extremely divisive, and constitutional questions, certainly where I come from, are exceptionally divisive. What we are witnessing at home at the moment is terribly sad. Sadly, Mr Gerry Adams of Sinn Fein, in his new year message, as reinforced in an article yesterday, is now trying to promote a referendum in Northern Ireland. Under the Belfast agreement, the only question, effectively, is, “Do you wish to be part of a united Ireland?”. Putting that particular, most divisive, issue front and centre as your main campaign for the next few years running up to 2016—the 100th anniversary of the rebellion in Dublin—is irresponsible to say the least in the present circumstances. When we should be talking about our economy and trying to get young people into work, I would have thought that talking about a referendum is the last place anybody wants to be. I deeply regret that.
With regard to complacency, I strongly endorse what the noble Baroness, Lady Liddell, has just said. If you have a 50% turnout, 33% can be 66%. You will get differential turnouts; I have seen it happen. If one side of the argument feels, “Ach, well it will be all right on the night”, but the diehards on whatever side of the argument come out, the percentages in an opinion poll are almost an irrelevance. It is who turns out on the day that matters.
I share the concerns about intelligibility and all these sorts of things. These arguments go over people’s heads. We have had three terms used in this debate already: “country”, “state” and “nation”. If you go and ask somebody for a definition, we all slip in and out of that language in our own parlance. As an Ulsterman looking across the channel at Scotland, to me, Scotland is a country. It has to be a country; if it were not, it would be part of the amorphous landmass of Great Britain. If it is not a country, why does it have its own law, traditions and different languages? Why does it have a history of attitudes, religion and a pioneering spirit and all that goes with that? Of course it is a country. I also think it is an independent country, because it has all those things, which define a country. However, if we get into an argument with somebody in the street about whether a country and a state are two different things, and if we have to go to the door arguing and trying to explain the difference between those things, I fear we are in some difficulty.
All I can say, with the experience that we have had, is that this will be divisive. We have to try to keep the best humour possible, as the noble Lord, Lord Cormack, said, but not underestimating the downsides and implications—and try to keep the argument as simple as possible. I sincerely hope that the people of Scotland will choose to remain within the union, because it would have huge implications for us if they did not. It is their decision, and I respect that, but the playing field has to be level, with nobody manipulating it, and the question asked has to be a genuine question that makes it clear that they are seceding from the United Kingdom. Anything less than that will leave an argument. There are still people in Northern Ireland today who do not accept the referendum result that we had, even though it was won with 71.5%. Because of our cross-community issues, people say, “Oh, well not enough of this group voted or of that group”. I can think of nothing worse or more corrosive than an argument over the process. I sincerely wish the people of Scotland well, but sincerely hope that the Government do not allow anybody to wipe their eye in the months ahead.
My Lords, as the noble Lord, Lord Empey, has said, words are important, and I come back to this word “independent”, or “independence”. I agree with my noble friend Lord Forsyth—on the hypothetical question that the Scottish Government would like to pose, I would very much like to vote yes because Scotland is, to me, an independent country now within part of the UK. I have been banging on about the use of the words “separate” and “separatism” rather than “independence”, and must ask my noble friend why the Government have used “independence” in the order. Proposed new Section 5A, under Article 3 of the order, refers to,
“the independence of Scotland from the rest of the United Kingdom”.
That only encourages the Scottish Government to continue using “independence” rather than “separation”. Why are the Government using that wording rather than saying, “Separate from the rest of the United Kingdom”? That would make what we are all talking about and what the Scottish Government actually mean much clearer.
I also echo what the noble Lord, Lord Pearson of Rannoch, said. I have been longing to ask the question, “Why have we got this order now?”. My noble friend Lord Forsyth said that the Electoral Commission has told him it needs 12 weeks to study the question and formulate its reply. That is in only three weeks’ time, but so much of this debate has been about what the Electoral Commission might have said or might not say. Why have we brought it forward this time? It has been a huge disservice to Parliament, and we have not had the sort of debate that we could have had. It leads one to ask the question put by the noble Lord, Lord Browne. If the Electoral Commission says, “No, that is a leading question”, what are the legal remedies if the Scottish Government persist with their proposed question?
I want to raise an old chestnut of mine which nobody else has raised, and ask my noble and learned friend, Lord Wallace, what further negotiations he has had with the Scottish Government about allowing Orkney and Shetland to determine their own future? This is hugely important. If England, Wales and Northern Ireland are not allowed to consider what Scotland does, why should the rest of Scotland have any say in what Orkney and Shetland decide they want to do?
I also hope my noble and learned friend will put Lord Steel’s mind at rest. He raised the question of the currency, and said that Scotland would have to look to the Bank of England in the event of independence. I hope the Government will make it absolutely clear that should Scotland wish to separate from the rest of the United Kingdom, it will not be allowed to use the same currency as the rest of the United Kingdom. If it did, it would be bad for Scotland and it would be bad for the rest of the United Kingdom. So let us lance that boil now. I hope my noble friend will make it absolutely clear that Scotland will not have the same currency in the event of a yes vote.
My Lords, this has been quite a lengthy debate. Nevertheless, the contributions have been very weighty; there is much knowledge and wisdom in this House. I would like to draw your Lordships’ House back to why we are here. We are here because the Scottish National Party won an electoral mandate at the previous Scottish parliamentary election. I do not like it but I accept the result. It has the right to support and advocate a referendum. We in the Labour Party support this order and hope to get into the debate as soon as possible, rather than be distracted by the many issues that have been raised today.
The noble Duke, the Duke of Montrose, mentioned an ad hoc organisation that advocated devolution. The Labour Party, the Liberal Democrat Party, and almost the whole of civic Scotland joined that ad hoc organisation. The difference between what happened then and what is happening now is that there was a broad consensus throughout Scotland about the need for a Scottish Parliament. The Labour Party supported that and, with the help of the Liberals and others, we brought about devolution and the installation of a Scottish Parliament. As soon as you devolve power to the Scottish Parliament, that power is there and it would be foolish to argue and quibble about this and that when it clearly has a mandate and the democratic right to do what they are doing, within generally accepted conventions.
A number of your Lordships have mentioned, quite rightly, the flaws within the deal that came about between the Prime Minister and the First Minister. We feel that one or two things could have been negotiated a bit more firmly. Having said that, the deal has been made, that is what we have, and we should move on from that. Nevertheless, we should note some points. For instance, the Scottish Affairs Committee quite rightly said in its report last week that decisions in the Scottish Parliament should be achieved by consensus and not simply through the use of the SNP’s majority. I keep hearing the phrase “gold standard”. The consensus that we achieved in the 1980s over the issue of the governance of Scotland should surely be the gold standard. I do not want to denigrate anyone’s personality on this, because that is a distraction that will only damage the cause of those of us who support the union.
There are a lot of issues, such as that of granting votes to 16 and 17 year-olds. The Scottish Parliament has the power to do that. There should be a debate about it, but it should not be an issue that prevents or distracts us from scrutinising this order.
On campaign finance and the wording of the question, the key phrase should be that the Scottish Government cannot be the referee and a player. Surely the Electoral Commission will act as an independent overseer of that process?
The point so ably made by my noble friend Lord Reid of Cardowan is that the Scottish people are not exactly backward at coming forward. I do not think we will be easily fooled; we will spot any chicanery or jiggery-pokery that may come from any party during this process. Sometimes, we in the political world can underestimate the acumen of the public, who keep an eye on politicians.
The wording of the question should be clear, unambiguous and thoroughly tested by the Electoral Commission. Like others, I should like to see the Scottish National Party commit itself to accepting the decision of the Electoral Commission vis-à-vis the wording. The noble Lord, Lord Empey, and other noble Lords who mentioned this were right: if we have bitter disputes over this, the bitterness will continue and the result will not be regarded as legitimate. It is absolutely essential that we get legitimacy for that result, whatever it is, and that it should be accepted by all.
A number of your Lordships have rightly mentioned the quality of the contribution and amendments of the noble Lord, Lord Forsyth. A number of my colleagues have stated they agree with much of his position. As I am a bit of a bureaucrat, one of the things I am concerned about is the practicality of the timeline. It is clear that, although October 2014 seems a long time away, the processes that need to be gone through before then are nevertheless considerable and time-consuming. If any of these timeline targets are not met, the process will be delayed, which would be dangerous. It will seem that obstruction by Westminster has caused the delay, which would be fatal to the cause of those of us who support the union.
Devolution means devolution. I am afraid that is sometimes hard to accept and something that we do not like. The Scottish people decided that they wanted devolution. I accept it, and it should be accepted.
My noble friend Lady Liddell made the point—far better than I am making it so far—by warning that we should not allow ourselves to be distracted by all the niggly points that have annoyed us. We have picked fault here and picked fault there. I do not say that the niggles, doubts and criticisms are not justified, but let us solve them; let us deal with them, get them out of the way and get on with campaigning. The people of Scotland are looking for a campaign where the issues are discussed, not individual personalities. We can then go to the real core of what would happen to Scotland if it separated from the rest of the United Kingdom. I do not mean that as a negative point or to frighten the people of Scotland by saying that Scotland cannot or would not exist without the rest of the United Kingdom. Of course we could: we could be economically viable and we could be a separate state. But we should say to people that we do not want to be separate—to separate from England, Wales and Northern Ireland, a union that has served us all well, especially in two world wars.
Again, I echo my noble friend Baroness Liddell. Let us get these issues dealt with. Yes, let us deal with them and debate them, but the sooner we get on to this campaign the better.
My Lords, I thank all those who have taken part in this debate. I thank also my noble friend Lord Forsyth for moving his amendment which has stimulated so much debate, although I suspect that, even without it, we would have had a considerable debate on the issue. I understand from my noble friend Lady Garden that there have been some 20 contributions, including an Englishman, a Welshman, a Northern Irishman and, regrettably, only one woman.
I offer my sincere apologies to my noble friend Lord Crickhowell. It has been a very passionate debate. As the noble Lord, Lord McAvoy, said, this is not necessarily where we want to be. I do not think that anyone here has advocated a referendum or, certainly, independence. Nevertheless, we recognise and respect the outcome of the Scottish election of May 2011 and the manifesto commitment of the Scottish National Party to have a referendum.
I welcome the fact that the noble Lord, Lord Browne, supported the view that the process was being done properly. I thank my noble friend Lord Crickhowell as a member of the Constitution Committee for his contribution. I am grateful not just for the most recent report of that committee on this matter but for the report which the committee produced in February last year following the consultation which the United Kingdom Government launched. In that report, the Constitution Committee welcomed the proposal,
“that a section 30 order be made to confer on the Scottish Parliament clear competence to legislate for a referendum on Scottish independence”.
From that flow a number of the issues which have been dealt with in this debate. It is also fair to point out that, in its most recent report on the referendum, the committee stated:
“We welcome the fact that the Agreement reached between the two Governments accords with our previous recommendations. The question of legislative competence is addressed, it is intended that the referendum will pose a single question on independence, and the Electoral Commission will play the lead role in advising on the referendum”.
That is why I cannot accept the argument that the outcome of the negotiations was weak, as it has been described by some noble Lords. As the Scottish Affairs Select Committee in the House of Commons said:
“The Secretary of State and his team are to be congratulated on their willingness to compromise and reach a consensus with the Scottish Government so that the referendum can be held on a basis to which all can consent”.
The noble Lord, Lord McConnell, mentioned the evidence that he gave to both the United Kingdom Government’s consultation and the Scottish Government’s consultation, where he said:
“I hope that both the Scottish Government and the UK Government will be willing to compromise on all of the key issues to ensure we have a clear outcome in a referendum and an outcome that is accepted by everyone as the fair result of a fair campaign”.
That is what we sought to do.
The noble Lord, Lord Reid, said, quite fairly, that of huge significance was the fact that it was a single question. I would certainly find myself in some difficulty if I was to come before the House today trying to defend an order or a process that had led to an outcome where there could be more than one question—the so-called multi-option referendum. As the noble Lord rightly said, there is a world of difference between a referendum where one part of the United Kingdom wishes to secede from the United Kingdom, which is a matter, as successive Governments have accepted, for that part of the United Kingdom, and one where there is to be a different relationship within the United Kingdom, with further powers being devolved. That is an important distinction and it is why I am very glad indeed that what we bring before the House today is an order which will provide for a single-question referendum.
It is inevitable in these circumstances that we come to the role of the Electoral Commission. The noble Lord, Lord Kerr, asked about the wording in paragraph 8 of the agreement, which contains the reference to “intelligibility”. I hope that I indicated why that word was used—it is a statutory word, if you like—but of equal importance is the way in which that has been interpreted by the Electoral Commission. Mr John McCormick, who is the Electoral Commissioner for Scotland, said on 9 November, when the Scottish Government submitted their question:
“We will assess the referendum question to see whether voters find it clear, simple and neutral. If it isn’t, we’ll say what needs to be done”.
I shall come to the issue of the question in a moment, because the other issue, as my noble friend Lord Crickhowell said, is the role of the Electoral Commission. Paragraph 12 of the agreement, also referred to by the noble Lord, Lord Kerr, sets out the role of the Electoral Commission in referendums. It states:
“Both governments agree on the importance of the referendum being overseen in an impartial way by bodies that can command the confidence of both sides of the campaign. The Electoral Commission is responsible for overseeing referendums held under PPERA. PPERA gives the Electoral Commission responsibility for: commenting on the wording of the referendum question; registration of campaigners; designating lead campaign organisations; regulating campaign spending and donations; giving grants to lead campaign organisations; publishing guidance for permitted participants; reporting on the referendum process; the conduct of the poll; and the announcement of the result”.
Paragraph 14 of the agreement states:
“Both governments agree that the Electoral Commission should fulfil all these functions in respect of the independence referendum, with the exception of the conduct of the poll”—
which will be done by an electoral management board which has already been established for local elections in Scotland and it is widely agreed across that parties that that should continue—
“and announcement of the result, and the giving of grants”.
The reason why the giving of grants is excluded is that the Scottish Government propose that there will be no grants of public money to the lead campaigns. That is the nature of the oversight by the Electoral Commission which has been proposed.
On foreign donations, it is proposed—
Well, perhaps, when he comes back to it, he can answer the question whether it was ever part of the British Government’s negotiating position to require the Scottish Government to accept the advice of the Electoral Commission on the question.
I certainly intend to deal with that. It is a fair question which has been echoed across the Chamber in this debate.
Donations from overseas are dealt with by paragraph 28 of the agreement, which indicates that the rules under PPERA will apply. PPERA states that donations of more than £7,500 must be recorded and declared publicly and that donations of more than £500 require individuals to be registered in the United Kingdom. It is intended that these rules will apply in this referendum and the agreement has set that out. In other words, it is the same rules as are agreed under PPERA.
I understand that that would be the case, yes.
My noble friend Lord Forsyth asked why broadcasting and mailshots were included in the order whereas other issues were not. The simple answer to that is that broadcasting and the Royal Mail are outwith the competence of the Scottish Parliament. Legislation brought forward by the Scottish Parliament cannot deal with these issues unless competence has been transferred. That particular part of the order transfers competence in order for the broadcasting arrangements and mailshots to be dealt with.
My noble friend and many other noble Lords asked about the nature of the question. Numerous people have found flaws with the question of whether Scotland is a country, a state or a nation, as the noble Lord, Lord Sutherland, made clear. I do not stand here to defend the question that has been put forward. It is not my job to defend it; nor would I wish to defend it. It is important that that should be a matter for the Electoral Commission, which is why it has been asked to advise.
The United Kingdom Government recognised in their consultation paper that the Electoral Commission’s role in referendums was to consult on the intelligibility of the proposed question and to report to the UK Parliament. We would have come under considerable pressure and criticism if it had been suggested that the Scottish Parliament should be treated in a different way. I will pick up on this point, because it is quite central to a lot that has been said in this debate. I will not go into the personalities, but we know the ability of not only the leader of the Scottish National Party, but in many ways the Scottish National Party itself. One thing that they have quite excelled at—those of us who have been around Scottish politics know this only too well—is their ability to nurse a grievance and to milk a grievance. That is what the noble Lord, Lord McAvoy, said about the timing of this. We do not want to give them another sense of grievance. If we had proposed that the Scottish Parliament was in some way to be treated in a lesser way with regard to a question after it had gone to the Electoral Commission than the United Kingdom Parliament was treated, we would have given them cause for a grievance.
The noble Lord, Lord Reid, was absolutely right to point out that this is a question which will come back to haunt them if they choose to ignore the advice of the Electoral Commission. I know that my noble friend Lord Forsyth said that he did not want this to be two years of picking on points, but it would be quite legitimate, if an attempt was made to put a biased question, for that to be pointed out and for the political consequences of that to be reaped. However, I would not wish, and what we have sought to avoid—and have successfully sought to avoid—is a two-year campaign in which the United Kingdom Government and Parliament are in the dock because we somehow or another have tried to rig the referendum. That is why it is so crucially important that we do not give, and we have not given, any opportunity for the Scottish Government to cry foul and say that we are somehow rigging the situation.
In an interesting article by John Rentoul in the Independent in November of last year, in which he praised my right honourable friend the Secretary of State for Scotland, he said:
“This sudden removal of the London Government from the see-saw meant that Salmond lost his balance. When Cameron went to Edinburgh in February to announce that he would not try to stop the Scottish National Party holding a referendum, Salmond found that the great London counterweight, against which his career had been built, had been taken away”.
It is important that we do not give that opportunity, or that excuse, for a grievance to be mounted. That is one of the main reasons—a key reason—why we are dealing with this in the same way as we would deal with a question in a UK referendum that had been legislated for by the UK Parliament.
That answers the question about the referee and the player. I take the point made by the noble Lord, Lord Sutherland, who came forward with a question himself. It is up to people with an interest to make their views on this known to the Electoral Commission. Clearly it would not be appropriate from the Dispatch Box to determine the agenda of the Scottish Parliament, but I rather hope that Members of the Scottish Parliament will note what has been said about them having an opportunity to debate this issue.
I will make one further point on this, which was made by the noble Lord, Lord McConnell, and was echoed by the noble Lord, Lord Empey. Lots of harsh words could, and almost certainly will be, exchanged in the next two years, and there is potential, as the noble Lord, Lord McConnell, said, for a nasty taste to be left in the mouth. That is why there is a responsibility on the Scottish Government and the Scottish Parliament to ensure that the question that is asked is not a source of that sour taste in the mouth. Just as we have sought, as a United Kingdom Government and a United Kingdom Parliament, to produce a scheme and process that will not allow anyone at the end of the day to cry foul—“It wasnae fair”—it is also incumbent on the Scottish Government and, above all, on the Scottish Parliament to ensure that when they devise the rules, procedures and indeed the questions for this referendum, they do not give anyone the opportunity at the end of the day to say “It wasnae fair”. It is important that the outcome of this referendum is decisive and properly recognised as having been fair and properly arrived at by the people of Scotland when they cast their votes in 2014.
I had indicated that I would not defend the question that had been put forward. It would be appropriate for the Electoral Commission to indicate that. I was asked about time; as was indicated by the noble Lord, Lord McAvoy, there is a timeline. My noble friend Lord Forsyth suggested that the legislation for the referendum would not come until after the White Paper. My understanding is that if this House, and subsequently, the Privy Council, approve the order next month, the Bill will be presented to the Scottish Parliament in March. The Bill cannot in fact be presented to the Scottish Parliament until such time as this order has been approved, which is why the timing of it is as it is.
The important point with regard to the question is that what has been done by this order, in transferring the legal competence to the Scottish Parliament, is such that the nature of the question and the advice of the Electoral Commission will go to the Scottish Parliament. It is not proper, and it would fuel that sense of grievance, if somehow or another we said “We’ll give you the competence to legislate for this, but only provided that we can write or prior-approve the question for you”. That would lead to a very strong sense of grievance, and would put us, who want to argue the case for our United Kingdom, on the back foot in many of the ensuing debates.
I very much hope that common sense will prevail, and that the sense of achieving a decisive outcome will prevail with the Scottish Government and Parliament. As the noble Lord, Lord Reid, indicated, they will pay a very serious political price if they do not do so.
Does the Minister really mean that it was right for the Electoral Commission not to give its advice to this House and the other place on the intelligibility of the question proposed by the Scottish Parliament, and that it would be wrong for us to comment on it? If we had had the Electoral Commission’s advice today—it must be provided by 1 February—quite a long time would have been saved, because we would have known what the position was. Surely we have not got to the position where we are so afraid that what we are doing will be misrepresented that we cannot do our work. Of course we cannot decide the question, but surely it would have been entirely appropriate for us to have the opportunity to comment on the question in the light of the independent advice from the Electoral Commission.
My Lords, a number of questions are rolled up into that. First, that is not the obligation of the Electoral Commission—there is no statutory duty or anything else for it to provide the answer by 1 February. I cannot remember which noble Lords made the point that your Lordships’ Constitution Committee had produced a report in a relatively short period of time, so why could the Electoral Commission not do the same?
The task of the Electoral Commission, among other things, is to go out and sample the question, which is not something, with all due respect, that the Constitution Committee intended to do, and neither would we expect it to do so. There is, therefore, a piece of work to be done in testing the question for its intelligibility, whether it is leading or misleading, whether it is neutral or whether it can be understood by those who will be asked to answer it in the referendum. I do not believe, therefore, that there was somehow some obligation on the Electoral Commission to rush that. I can hear the criticisms now if people thought that it had in some way been rushed.
Neither my noble friend nor any other noble Lord will be inhibited from commenting on the report of the Electoral Commission, which will be published and very much in the public domain. I will come to the noble Lord, Lord Sutherland, in a moment. There is no doubt that it is a matter for the Scottish Parliament to determine. There will be every opportunity for voices to be expressed as to what the Scottish Parliament should do in the light of the advice from the Electoral Commission.
That is helpful. However, it is important to understand that there is a body of work that it ought to do, and is doing, before it publishes that advice.
The question has been raised about the franchise. As I indicated to my noble friend the Duke of Montrose, it is a matter of primary legislation for the Scottish Parliament. If it chooses to extend the franchise to 16 and 17 year-olds, issues will arise out of that; it will need to ensure that the proper protection is given to minors whose names would appear on a roll. That would be the responsibility of the Scottish Parliament in any legislation which it brings forward.
I do not believe that that is the thin end of the wedge. If only legislation passed by the Scottish Parliament was, we would have proportional representation by single transferable vote for English local authority elections, but I have not seen a great rush in the Westminster Parliament to follow the Scottish Parliament in that constitutional development
Several noble Lords, including the noble Lord, Lord Reid, my noble friends Lord Stephen and Lord Cormack, and the noble Baroness, Lady Liddell, posed an important question about the vote for service personnel. The position is that the members of the Armed Forces and their spouses or civil partners are entitled to vote in elections, provided that they are registered to vote either by means of a service declaration or as an ordinary voter. Members of the Armed Forces will be able to vote in the referendum if they are on the register in Scotland either as a result of an address in Scotland or a qualifying address showing a connection to Scotland, such as service accommodation in Scotland; an address in Scotland where they would be living if they were not in the services; or an address in Scotland where they have lived in the past. The same rules apply to spouses and civil partners of members of the Armed Forces.
On the specific point raised by the noble Baroness, Lady Liddell, service personnel who are overseas at the time of the referendum who would otherwise be eligible to vote will be able to vote by post or by proxy. I understand that the Electoral Commission and the Ministry of Defence run an annual electoral registration campaign to inform personnel and their families in units around the world about such voting matters. I will certainly talk to colleagues in the Ministry of Defence in the next round of prompting of information to ensure that they remind service personnel of the referendum.
My Lords, will the Minister check very carefully that that information campaign is timed to coincide with the period during which service personnel would require to register to qualify to vote in 2014? The timescales may well be such that they would miss deadlines. We would all appreciate an assurance that such checking will happen.
That is an important point, and I take it on board. It is also important to make clear that service declaration, to which I referred, is now valid for five years, following legislation that took effect in March 2010. Those who have already made a service declaration which gets them on to the Scottish register will have that for the five years after March 2010, so they will certainly have it for the time of the referendum.
I am grateful to the Minister for that. Knowing how bureaucracy can ensure that the best laid plans gang aft agley, can he ensure that there is a distinct recognition in the Ministry of Defence that this is different from the normal, annual registration, for this reason: you have go to every serviceman and woman? From what he said, there may well have to be a process to identify those who have the qualifying criteria of having had a residence in Scotland, and so forth. If that process is not started early, we will find, as we did many years ago, before we brought in the new regulations, that for purely bureaucratic reasons, servicemen and women and their families are not adequately informed—especially, as my noble friend Lord McConnell said, in time. That process has to start now. It is quite a big job weeding out, if you like, or identifying people, rather than applying a carte blanche regulation for everyone.
My Lords, the noble Lord makes an important point. I will certainly ensure that his comments and the general sense of the House is drawn to the attention to the Ministry of Defence. No doubt Questions can be asked to ensure that we live up to that.
Finally, my noble friend Lord Forsyth quite properly said that there should be no room for complacency. That was echoed by other noble Lords, including the noble Baroness, Lady Liddell, and the noble Lord, Lord Empey. I could not agree with them more. I have said—although I do not think it was from the Dispatch Box—that the biggest enemy that those of us who wish to remain part of the United Kingdom have is complacency. We must guard against it, not simply because I want to win—I want to win very convincingly indeed. I certainly take the point about differential turnout made by the noble Lord, Lord Empey, and very much believe that we should guard against complacency.
My noble friend Lord Forsyth and the noble Baroness, Lady Liddell, asked about information. I suspect that we will not get a completely neutral arbiter, although some bodies are producing evidence from a more neutral point of view. The noble Lord, Lord Nickson, who I think is a former chair of CBI Scotland, appropriately raised the pertinent questions that CBI Scotland is addressing to the Scottish Government.
The Government have made it clear that we will be publishing material to provide information, not least about the number of jobs provided by the defence industry and what benefits being part of the United Kingdom bring to Scottish security. It will also set out facts, which are perhaps currently unknown or often just taken for granted. In that regard, it will include the importance of our position in the world. Scotland is part of the United Kingdom which punches much above its weight in terms of our population and because of our history, to which Scotland has contributed. It will talk about the protection of our citizens. It will talk about the many economic benefits to the United Kingdom.
The first of those papers will be published in the next few weeks, and we will publish further papers throughout 2013. I hope that that brings important information, which we will all be able to use in our arguments for the furtherance of the United Kingdom.
My noble friend Lord Forsyth and I were both elected to the other place 30 years ago this year, and I have known him all that time. We have disagreed about a number of issues, not least Scotland’s constitutional future, but I have always respected where he comes from on that and the important issues that he has raised this afternoon. One issue on which we can join together is that it is very important that we join together people right across this Chamber who believe that Scotland is better as part of the United Kingdom and the United Kingdom is better with Scotland in it; that we share a common heritage; that we share common social bonds; that we have a shared cultural heritage with, fundamentally, shared political values; and that we can defend them much more effectively in an uncertain and challenging world when we are working together. It is in that spirit that I want to argue that case, and I urge your Lordships to approve the order.
My Lords, what a wonderful debate we have had. It is pretty clear to me that there is a consensus in all parts of this Chamber— bar one, if I may say so—about the need to have a referendum campaign that is seen to be fairly conducted and where there is no dispute about the result at the end of the day.
As I said at the beginning, I do not propose to divide the House. I think that that would be a huge error on my part, because it might give the impression that we are not as united as we are on these matters. However, I say to my noble and learned friend—we have been friends for a long time, if opponents, which we are not now, although we were earlier in the week; it is very difficult to work out what the nomenclature of this week should be—that he has taken a risk, a gamble, on being able to ensure that we get a decent question and proper rules for the referendum. I am prepared to withdraw my amendment and back his judgment. If it turns out to be wrong, he can expect some very vigorous debates in future. I beg leave to withdraw my amendment.
Amendment to the Motion
As an amendment to the Motion in the name of Lord Wallace of Tankerness, at end to insert “and regrets that debate in Parliament on the draft Order is taking place before the publication by the Electoral Commission of its advice on referendum campaign funding and on the proposal from the Scottish Government that the referendum question be ‘Do you agree that Scotland should be an independent country?’, advice which is required to be published by 1st February”.
Amendment to the Motion not moved.
Health: Medical Innovation
Question for Short Debate
My Lords, I express my gratitude to the usual channels for allowing the time for this debate. I have introduced the Medical Innovation Bill into your Lordships’ House. I will not be covering the details of that Bill in this debate; Second Reading will follow at some point in the year and we can discuss them then. However, this debate may illuminate the context of the Bill and give your Lordships’ House an opportunity to consider the whole complex question of what best practice is in innovation, particularly the application of research and knowledge to patient treatment.
In opening this debate among the judicial and medical experts in your Lordships’ House who have devoted a lifetime to this subject—compared to my own brutally short experience—a certain humility is appropriate. It will be my privilege to hear many noble Lords who are among the great innovators of our time. I particularly thank my noble friend and his team at the Department of Health for their wisdom; Dame Sally Davies, the Chief Medical Officer, for her viewpoint; the Secretary of State himself for making improved survival rates his key priority for healthcare; and the many patient groups, academics and practitioners who have contributed their thinking.
The Prime Minister himself has encouraged British medical innovation in the context of the global race, and the document on diffusion of innovation in the NHS by my noble friend, himself Minister for innovation, is, if he will allow me to say so, a model of agenda-setting by a government department.
Buoyed up by Bertrand Russell’s view that simplification is not always obfuscation and often serves to crystallise the issues, I will attempt first a simple description of the need, and then a specific suggestion of what steps your Lordships may consider to meet that need. I will concentrate on the most emotive word in the English language—cancer—and hope to draw wider conclusions from this area. To express the need, I am helped by an unexpected source, the Father of the House in another place. In his tribute to Her Majesty the Queen on the occasion of her Diamond Jubilee, he used a striking phrase:
“There is nothing more inspiriting in the whole world than a beautiful woman”.—[Official Report, 07/3/12; col. 852.]
I can amend that. There is no more distressing thing in the whole world than a beautiful woman being reduced to a sparrow.
Unfortunately, here is the status quo. A woman is told that her tests are “normal” and to come back in 12 months. She is removed from her home 12 months later and cut and drilled until she loses half her body weight. Wires and tubes are attached to her throat, nose, stomach and vagina. Drugs are given to her that cause nausea, vomiting, diarrhoea and fatigue. They open the path for fatal infections to enter the woman’s body and reduce her body’s defences against such infection. The woman is left for dead, and sooner or later the woman dies. The “process”, as it is called, involves scenes that would not be permitted in a Hollywood horror movie.
I hope that that is a fair description of the need for medical innovation. The screening techniques for such a cancer are inadequate; no reliable early detection method is available, and even if it was, it would improve the overall survival statistics but not the date of death. The treatment regimes, when provided—that is, the drugs, the cycles of their administration and the surgical procedures—are 40 years old. They are also ineffective; cancer quickly develops resistance. Not surprisingly, the survival rate for such cancers is the same as it was 40 years ago—in other words, nought; and the mortality rate is the same as it was 40 years ago—that is, 100%.
This disease is relentless, remorseless and merciless. Its treatment is medieval, degrading and ineffective. Why are we so forsaken? It is said that cancer is so complex that it is beyond the judgment and understanding of the human mind to comprehend its variables. Therefore, through ignorance, we kill people unnecessarily.
If that is true, it is not through lack of trying. Scholars in cancer have long sought general rules about the world as robust as the laws of physics and to verify statements, propositions and putative facts by the results of empirical studies. Unfortunately, it has not worked out quite like that. Instead, we find the stubborn fact that, after 2000 years of human progress, cancer is still outside Newton’s universe where physical laws govern reality.
In the natural sciences, even though, as Popper says, the closest approach to proof is just a succession of unsuccessful attempts at falsification, we can nevertheless make statements in the natural sciences, perhaps without finality but with a certain degree of probability. If I drop these papers, they will fall to the ground. Tomorrow the sun will rise. In cancer, though, the record seems to show that once we express opinions or beliefs or attempt to offer explanations, descriptions or predictions, then error, doubt and uncertainty come to the fore. In cancer you hear it said that, “Every case is different” and, “There is always hope”. Such well meaning sentiments are not science. There is no hope that if I drop my papers they will not fall. These statements are meant to bring cheer to the desperate, but instead the effect is the opposite. They bring despair—the dread revelation that cancer is a realm in which science has yet to achieve sovereignty.
In the end, all attempts to place cancer medicine within the canons of scientific objectivity have failed. There remains an irremediable tentativeness about the logically perplexing question of what is the cause or cure for cancer. Cancer science has not yet found its Newton. Why? There is a powerful deterrent to innovation at the heart of the current system. Economists would call it a systemic failure. Current law is a barrier to progress in curing cancer. Under present law, any deviation by a doctor from standard procedure is likely to result in a verdict of guilt for medical negligence. Current law defines medical negligence as deviation from standard procedure. As innovation is deviation, though, non-deviation is non-innovation. In this way, the fear of litigation for medical negligence is a roadblock to innovation in cancer treatment. The present pre-eminence in law of the standard procedure provides no inducement to progress. The self-interest of medical practitioners, as defined, for example, in doctors’ insurance policies, means that innovation—that is, deviation—is a form of self-harm.
In Clark v MacLennan, an important test case in 1983, the significance of departing from an approved mode of practice was treated by the trial judge, J Pain, as having the effect of reversing the burden of proof, so that once the plaintiff established a deviation the defendant had to disprove an inference of negligence. I quote Crawford v Board of Governors of Charing Cross Hospital, 1953:
“The practitioner who treads the well-worn path will usually be safer, as far as concerns legal liability, than the one who adopts a newly discovered method of treatment”.
In the standard Butterworth text on medical negligence, the authors Nathan and Barrowclough expressed in 1957 the following view, still applicable today, concerning deviation from accepted modes of practice and the ethics of new treatment research and experimentation:
“Medical men cannot be permitted to experiment on patients (Slater v Baker and Stapleton) (1767) ... On the other hand the courts will not press this proposition to a point where it stifles initiative and discourages advances in techniques … a line must be drawn between the reckless experimentation with a new and comparatively untried remedy or technique, and the utilization of a new advance which carries with it unforeseen dangers and difficulties”.
I hope that we can agree with Lord Diplock, who was looking for a better balance to be struck between therapeutic innovation and therapeutic conservatism. He warned of the dangers of so-called defensive medicine:
“Those members of the public who seek medical or surgical aid would be badly served by the adoption of any legal principle that would confine the doctor to some long-established, well-tried method of treatment only, although its past record of success might be small, if he wanted to be confident that he would not run the risk of being held liable in negligence simply because he tried some more modern treatment, and by some unavoidable mischance it failed to heal but did some harm to the patient. This would encourage ‘defensive medicine’”—
that is his phrase—
“with a vengeance”.
I am looking carefully at the time and will therefore bring these remarks to a close. Your Lordships will agree that optimal care is evidence-based care. Evidence-based medicine is therefore standard procedure for the protection of patients. However, as your Lordships are well aware, cancer is the least evidence-based disease of all. There is great uncertainty: either the evidence does not exist or, if it does, it is not clear what it means. Innovation is therefore more appropriate in cancer treatment and the consequences of not innovating are greater—poor life quality, followed by death.
I shall end with this. What can your Lordships’ House do—that is the point of this debate—to encourage the drive towards medical innovation, on which my noble friend has made such a great contribution? The advance of science depends upon the free competition of thought and thus upon freedom; that must come to an end if freedom is destroyed. Are the intellectual problems of cancer insoluble? I do not think so. What is more inspiring, apart from a beautiful woman, than the quest by scientists to explain the world; to find satisfactory explanatory theories—simple theories—and to test them? One of them will cure cancer. We should rise to our feet to applaud the great cancer doctors and scientists, many of them in this House, who are striving by their own best lights to serve the community. Let us erect statues in their honour or build bridges in their name, or parks, or avenues, or airports. Let us encourage them, not frighten them.
My Lords, it is both a responsibility and a privilege to be the first speaker after the deeply moving speech from the noble Lord, Lord Saatchi. He carries the respect of the whole House for tabling this debate and has our thanks for the way that he phrased what he said. I feel that my own contribution will be paltry by comparison, but I thought that it would be interesting to look quickly at my own career and think of seven points in it where innovation was an issue. Our excellent Minister sitting on the Front Bench cannot be expected to be responsible for trying to improve innovation in the health service. This is a colossally difficult issue; I will explain why I think so.
The first thing I want to refer to briefly is my involvement in the early days of microsurgery of the fallopian tube. First, that project, which led to about 50 publications, would not have been possible today because the Medical Research Council grant that I got would not be awarded with the current competition. Secondly, it is fair to say that I would not have got an animal licence to practise a surgical procedure, rather than to do it experimentally. There is a neat difference now in how the regulation is. Throughout, there are at least eight issues that conflict to make innovation difficult. One is regulation; one is infrastructure; one is governance; one is industry and its involvement; one is the internal market, supported by both the Labour Party and the Conservative Party; one is clinical training; another is teamwork. Lastly and most importantly, there is the cultural environment. I will come to one other issue at the end, if I may.
The infrastructure for my work with the fallopian tube would not be possible now because I had access then to a workshop in a district general hospital, where Dennis Melrose was producing extracorporeal circulation pumps to improve heart surgery. That is almost unthinkable now. One of the greatest difficulties I had was in getting industrial support for making the microsurgical needles. I could not find a single industry in this country that would make the needles. We made needles with our own hands, under a microscope, that were so fine and delicate that they did not fall to the ground. Unlike the noble Lord’s papers, they actually floated on the air. Eventually, we found a German company which then captured one-third of the world’s ophthalmic market with those needles. There is a message in that innovation.
With regard to trying to translate that surgery into the female pelvis, the big problem now would be governance. What also followed was the issue of having training in teamwork around, to persuade surgeons to work as a team. That has become more difficult now because of the internal market. It is very difficult to prove that a surgical procedure works and is innovative, because it is more difficult to collect the cases together within a health service structure. We have all faced this difficulty for quite a long time. It is not the responsibility of any one Government.
The same thing applies, to some extent, to laparoscopic surgery. I think I was one of the first people to operate using a laparoscope in this country. There would now be a problem with governance; it would be considered risky and unwise, and would take much longer to innovate.
With the present regulatory system, it would also be impossible to see in vitro fertilisation—your Lordships probably know that I have certainly more than dabbled in that—on the books in the way that it is now. It would be very difficult to transfer an egg that you fertilise outside the body into a human patient. It would certainly take much longer to get permission to do that. That is one of the issues. In my own unit, we made a whole series of improvements. We improved the culture media. We demonstrated, for example, the given knowledge that glucose in the medium was poisonous to human embryos but not to any other animal that was experimented on. We could not change those media now, given the current regulatory framework. Even the little changes that one could make—the fact that tungsten light is dangerous to embryos, for example—become increasingly difficult.
I could go on and on but I do not want to spend more than a few minutes and my time is almost up. It would now take much longer to get permission for things such as embryonic detection of genetic defects. I have to declare an interest as somebody who launched a biotech company. One of the problems with that company, which might change the whole field of transplantation with the use of pigs’ kidneys, hearts and livers, and possibly pigs’ lungs, is that it took us more than a year and a quarter to get an animal licence to practise and do the work on just six pigs. It was quite difficult to get the rodent licence before that as well.
I want to say one final thing. The first experiment I ever did was as a result of fraud in my unit. I was asked to go in and troubleshoot by repeating an experiment. It was pure serendipity that we found that there was probably something wrong, with an infection in the vagina of women that might lead to the possibility of a virus being involved. We now know, of course, that the virus is very well established but I did not know what it was at the time. That was a long time ago but one of the issues with true innovation is that serendipity is extremely important. What we can perhaps best all do together is to see how we might improve the culture in which we do our medicine.
My Lords, I begin my remarks by echoing the comments of the noble Lord, Lord Winston. I have been a parliamentarian in both Houses for some 16 years now and I do not think I have ever heard a more moving, considerate or emotive speech than that of my noble friend Lord Saatchi. I thank him for it. In so doing, I have to say that some of the issues that he and the noble Lord, Lord Winston, have raised—and that others will raise—are ones that the Minister, with his responsibilities, can begin to address. Last night, I was responsible for hosting a reception for Children with Cancer UK, an organisation that has been running for 25 years and which began because, 25 years ago, childhood leukaemia killed eight out of 10 children who suffered from it. Now, 80% of children survive it. That happened through innovation—through the very things that the noble Lord, Lord Winston, mentioned and which others will mention—so there is hope. I would want to give my noble friend that element of hope.
My frustration is with many of our scientists’ inclinations. The means to deliver novel or experimental treatments to patients earlier exists. It is not something that does not exist and, quite frankly, it does not require further legislation. With the support of government and an excellent UK life sciences strategy, we have the means to do exactly what my noble friend wants to see. We do not need more legislation; we need action. We need regulators and funders to recognise that, while their approaches are fine for established research pathways and large populations of patients, they are hopelessly inadequate for new and experimental treatments on small, stratified populations.
There is progress. Both the conditional approval scheme and the named patient scheme are important in the toolbox of clinicians who want to try novel and untried treatments but, frankly, they are rarely used. Indeed, perhaps the Minister, when summing up, can say how often they are used and for what purpose. Perhaps, too, he could tell us what progress is being made on the early access scheme, championed in the UK Life Sciences Strategy, which would allow access to drugs earlier than the current regime permits, especially where the compounds under consideration represent possible therapies where few alternatives are available. Currently, the Government’s ambition for this scheme is two to five drugs per year. Does the Minister really feel that that should be the height of this strategy’s ambition?
Perhaps offering more promise, as the Science and Technology Select Committee heard in relation to its regenerative medicine inquiry, is the issue of adaptive licensing, an initiative that also appeared in the UK life sciences strategy. Adaptive licensing offers a flexible approach whereby regulators, clinicians, patients, the research community and industry are jointly involved in assessing the risks of a given experimental treatment so that a proportionate level of regulation can be determined for the release of novel drugs to patient groups. This proportionate approach recognises, as we move to more targeted therapies for smaller populations where traditional clinical trials will be of limited use, that this approach offers an alternative, more appropriate assessment of patient risk and benefits; but, again, where is the urgency or ambition? The expert group that was set up by the MHRA to look at adaptive licences has met only once, in October 2012. Frankly, if that is the rate of progress, it will be years before we see this opportunity realised.
Finally, I come to regulation and regulators, a topic to which I know many noble Lords will return later. When the Academy of Medical Sciences produced its report in 2011, the Government promised simplified, more unified and smarter regulation. The setting up of the Health Research Authority would herald a new dawn for those who see the regulatory burden—particularly for scientists, clinicians and SMEs working at the edge of discovery—as an obstacle to progress. Far from achieving that aim, the HRA appears to have become a very expensive national ethics service. If anything, regulation has become more complex and more bewildering. Indeed, as one expert witness revealed yesterday to our committee, “It is only accessible if you know where to look”.
Clinicians hoping to use new therapies to save the lives of cancer patients do not have the time, and often do not have the resources, to meet the demands of well meaning regulators and their plethora of never-ending hurdles set up to ensure patient safety. That is the real challenge. Without a more agile, unified and flexible regulatory system, which puts patients at its heart, all attempts to move novel and often untried treatments into patients will fail. In that case, we will fail my noble friend in his cause.
My Lords, I thank the noble Lord, Lord Saatchi, for asking this question so movingly. I feel honoured to be taking part in this debate with such experts. Having a cousin who is research-minded and is a professor, now living in Australia, I want to raise a few points that we have discussed.
Many Britons see their clinical research careers take off after they leave the UK. Some of this is due to the internationalisation of medicine and the growing awareness of how valuable exposure to overseas best practice can be during specialist training. It is a two-way street, so some of the UK’s best specialists come from overseas.
It seems that clinical research comes a poor second after the pressing needs of an overloaded health service have been met. From clinical medical student through resident positions, specialist registrar training and on to first consultant position, it seems difficult to find the time and support for clinical research and development. Apart from a few fortunate centres, where seniors have managed to establish a strong funding stream for R&D, resulting in research fellow appointments, research support staff and so on, there seems to be a poor match between the R&D effort and the acute medical front line. More regional expert centres should be better funded. Steps seem to be needed to recognise where there is already established leadership and to make use of it.
Innovation in healthcare and innovation in clinical research have a symbiotic relationship. Without research there can be no innovation, as there will be no evidence base with which to inform clinical practice. Without that clinically proven innovation being acted on, we will see no advance in clinical practice, no improvement in patient outcomes and less incentive for clinical research to be carried out.
There seems to be frustration from some bodies involved in innovation. For example, Innovation, Health and Wealth promised to:
“launch a national drive to get full implementation of”,
oesophageal Doppler monitoring,
“or similar fluid management monitoring technology, into practice across the NHS”.
This is an admirable policy, but again reality is not living up to intention. Not only is that implementation drive delayed; it has been scaled back. The NHS is also allowing the inclusion of technologies similar to ODM that do not have adequate backing through clinical research and have not been evaluated by NICE. Allowing unproven technology to be on an equal playing field with technology that has been through the rigours of clinical research is both unfair and uncompetitive. It will also result in worse outcomes for patients, lost productivity, fewer savings for the NHS and reduced incentives for clinical research to be carried out in the UK.
Will the noble Earl look again at the ODM implementation plan to ensure that the benefits to both patients and the NHS are realised through proper consideration being given to clinical research? There are so many complicated rare conditions that need new ways of treatment. When medical innovation has come up with the answer, it is vital that patients get the correct treatment for their condition. Nothing is more frustrating for the developers of a treatment and for the patients than when commissioners will not pay, thus holding up treatment and ongoing development.
It is heartening to witness the great support that so many people give to medical research and innovation through charities.
My Lords, I add my thanks to my noble friend Lord Saatchi for bringing this debate on a matter that is very personal to him. I chair the research panel of the Pelican Cancer Foundation based in Basingstoke. One of our members, Professor Bill Heald, pioneered a new technique for removing rectal cancer in the early 1980s. Total mesorectal excision, or TME, reduces the incidence of a recurrent tumour in the pelvis after surgery. Despite many publications, presentations and lectures on his technique, it was not adopted in the UK. The Scandinavians, however, were more convinced of the benefits, and Professor Heald developed a national training programme with them, which was adopted in the Netherlands, Norway and Sweden in the early 1990s. It became part of routine practice, resulting in improved outcomes for rectal cancer patients. It was to take another 10 years before TME became accepted as a routine procedure and best practice in the UK, despite it having been first pioneered in England.
So how can we speed up the take-up of new procedures? How can we accelerate translational research? In 2007, the national cancer action team and the Department of Health introduced the LAPCO training programme for teaching laparoscopic colorectal surgery. The Royal College of Surgeons promoted and delivered the programme through its new skills centres and, now, through specialist hospitals throughout England. This initiative proved so successful that I was recently asked to give a keynote lecture in the United States to offer our experience of teaching and disseminating laparoscopic colorectal surgery to the surgical community, and our methodology for assessing skills and accrediting competence to practise the procedure. The invitation letter said:
“It is my understanding that the UK has done this in a more proactive and safe fashion than we have in the States”,
an acknowledgment that central direction, as occurred with TME in Scandinavia and now with LAPCO, can produce best practice and innovation.
For a national programme of laparoscopic colorectal surgery for cancer, we will need about 460 surgeons trained in the technique. This is because we have a large NHS caseload, and it is required to meet the NICE guidelines on laparoscopic bowel resection. We currently have half that number. We need to be able to release doctors and surgeons to train innovative procedures. This requires incentives, the support of the base hospital when they have to go away to learn techniques, recognition of their efforts through clinical excellence awards—which I am pleased to say have been reinstated—and other marks of recognition. These efforts definitely show that you can improve the outcome for patients, and the benefit to them is real.
In a report in 2001, From theory to theatre: Overcoming barriers to innovation in surgery, the Royal College of Surgeons recommended that surgical trainees should be encouraged to participate in ongoing research and to work with multidisciplinary teams. With the support of CMO Dame Sally Davies, who was mentioned earlier, the Royal College of Surgeons has committed to funding five surgical trial centres from 2013, with the aim of recruiting thousands of patients for these trials. As surgeons, we are often criticised for not getting involved in randomised control trials; the comic opera referred to as “surgeons trying to do research” perhaps refers to this.
It is necessary today for us to carry out these trials because the number of trials carried out in surgical discipline comprises less than 10% of those done in cardiology. The trials units will provide expertise to develop multi-centre surgical trials, offer technical support and speed up the delivery of clinical trials. As surgeons, we are trying.
In order to speed up the process, from theory to theatre, it is vital that we involve patients in decisions about innovative treatment. Patients must understand the potential risks so that they are able to give full, informed consent. The process for doing this is in place—we have study design, ethical approval and patient involvement—but it needs to be expedited. We all know how long it takes to get approval to start a new trial. It is important that we do not have to wait the length of time that Professor Heald in Basingstoke did to introduce a procedure which has clearly saved many patients’ lives.
My Lords, I first declare my interest through the work that I do with the British Healthcare Trades Association, as in the register. However, the issue that I was asked to raise in this debate is specifically about the provision of insulin pumps.
I am one of the 2.9 million people in this country already diagnosed with diabetes. As a type 2 diabetic, I was first told that my treatment would only be in the form of tablets, but in common with many people who are diagnosed at a relatively early age with what they used to call “mature onset diabetes”, I found that after 10 years or so I also needed insulin injections every day. Now, as our understanding of dealing with diabetes grows, I am advised by my excellent diabetes specialist nurse that I may well need an insulin pump in another 10 years or so in order to be able to maintain good control of my condition.
The prevalence of diabetes is growing, and the period of time over which people need treatment is growing substantially. I am, therefore, concerned that many people with diabetes, who might benefit considerably from the provision of insulin pumps, do not currently find them available on the NHS. A survey not very long ago showed that the average rate of insulin pump provision for people with type 1 diabetes in this country was 3.7%, compared with the then 12% benchmark recommended by NICE and in comparison with other countries, such as the USA, where such provision is estimated at 35%, and Sweden, France and Germany, where it is estimated at 15-20%.
Good diabetes management is, of course, crucial to reducing diabetes-related complications, such as hypoglycaemic episodes and potentially fatal conditions such as heart disease and strokes. Greater use of technologies such as insulin pump therapy can deliver much better outcomes for patients. It can also help to reduce cost savings for the NHS by improving diabetes control, reducing primary care contacts, and reducing hospital admissions and hospital outpatient contacts.
However, the provision of insulin pumps is very patchy and inconsistent. Many healthcare professionals are not trained in supporting patients on insulin pump therapy and, as a consequence, are reluctant to recommend it as a treatment option. The position seems much better in Scotland. The Scottish Government announced in February 2012 that they would invest over £1 million to deliver insulin pumps to patients with diabetes. Over the next three years, their NHS boards will increase the number of insulin pumps available to under-18s, in addition to tripling the number of pumps available across Scotland.
Patients must of course be given accurate information about self-managing their condition, which should include advice on insulin pumps as a treatment option. It is imperative that healthcare professionals are trained in supporting patients to use insulin pump therapy.
My Lords, I congratulate the noble Lord, Lord Saatchi, on securing this debate. I, too, found his introduction moving, so I thank him for that.
I declare an interest as chief executive of the medical research charity Breast Cancer Campaign and, perhaps more importantly for this debate, honorary president of Cancer52, an alliance of more than 60 organisations—many of which are very small and unstaffed—working to address the issues faced by those with less common cancers who make up 52% of UK cancer deaths, including ovarian cancer.
The promotion of a vibrant research environment is absolutely essential for the development, evaluation and take-up of new medical innovations in our NHS. Research and innovation are vital if we are to ensure better outcomes for cancer patients, which is why I am so proud that we in this House worked hard and successfully to ensure that duties to promote research and innovation were included in the Health and Social Care Act 2012. It is now equally essential to make sure that these duties are embraced by the new NHS structures as they take up their responsibilities in the coming months. I know that there is much debate about how that will happen.
I turn to an issue that is of concern to many patients: the use of drugs which are off-patent and not licensed for a particular indication, but which could be helpful in new and innovative ways. This is a little related to concerns that the noble Lord, Lord Saatchi, has raised through his Private Member’s Bill. Many noble Lords will have seen the news yesterday about proposals from the National Institute for Health and Clinical Excellence to recommend the use of the drugs tamoxifen and raloxifene for the prevention of breast cancer in high-risk patients. The barrier to using tamoxifen for chemoprevention in the UK arises from the fact that the drug is now off-patent and its original licence does not cover the use of tamoxifen for chemopreventive purposes, despite the drug being licensed for this indication in the United States for a number of years. Because existing UK legislation only allows the original owner of the drug to seek to change the indication—even when a drug is off-patent and there is therefore no incentive for the drug company to seek a change at this stage—this means that medical professionals who may wish to prescribe the drug for their patients must do so outside the existing licensing agreement. This is a significant disincentive and we could argue that it is stifling innovation.
Indeed, the draft guidelines issued by NICE yesterday are clear. They state that the prescriber of these drugs should follow the General Medical Council’s good practice in prescribing medicines and take full responsibility for their decision. This means that medical professionals must clearly document that the patient, or whoever has the authority to give consent on the patient’s behalf, has provided informed consent to receive the drugs for chemopreventive purposes.
Although the NICE guidelines are designed to circumvent this problem and make health professionals more comfortable with prescribing these particular drugs for chemoprevention, the best way to eliminate any remaining doubts for prescribers would be for a new avenue to obtain licences for new indications for drugs where there is a clear evidence base of clinical benefit and when they are off-patent. Therefore, would the Minister tell us what avenues the Government are exploring for closing this existing shortfall in the current legislation? Have the Government perhaps explored any possibilities for public bodies such as NICE to seek new licences for off-patent drugs where the manufacturer has no incentive to do so? He might want to write to me on this, but it would be very interesting to hear how this kind of innovation—which is looking at existing medicines and discovering how they might be used in different ways in different conditions —could be made a more nimble, innovative process.
My Lords, I, too, congratulate the noble Lord, Lord Saatchi, for having described, in a very moving and clear speech, the reality and the horror for patients of illness and treatment, and the difficulty that many patients and their families face while in the shock of realising that life is not as they hoped it would be and has changed in an instant.
The noble Lord, Lord Saatchi, has highlighted the push and pull of the dilemma of innovation in medicine. We have a push from research councils to innovate; we have a push in academic medicine, principally in secondary care in specialist services, to innovate, to think and to instigate new trials; and we have a push from industry to come up with developments. However, we have a pull, which is a risk-averse system that is frightened of taking the decision to go with something that looks as if it might be high-risk or to go with the unknown. It is that tension between the push and pull that I think we are caught in the middle of today. Perhaps this debate is really timely, because we need to think about how we should handle that.
I was involved in some of the early trials to which the noble Lord, Lord Willis, referred, of children with leukaemia. I remember some of the children who were in the arms of the failing drugs; I remember them as if it were yesterday. I can see in my mind’s eye the room and the face of the child who then died and having to talk to those parents. However, it was through those trials, through every child taking part, that the face of childhood leukaemia has completely changed. I sincerely say, thank God that it has, because there was a terrible toll before those trials were properly instigated.
Another problem for patients, when they are faced with a disease for which there does not seem to be a conventional treatment on offer, is that in desperation they go off and try to find their own treatment and therapy. It is worth remembering that about half, or possibly more than half, of patients with malignant disease of any type seek help and treatments outside of conventional medicine, going for complementary or alternative medicine—often taking treatments for which there is no evaluation. Some years ago, it was a great difficulty for my team to cope with people who were coming in and saying that they were taking shark’s fin. The ecological disaster, the cruelty to sharks and the total lack of evidence of any efficacy made us come up with a form of words that we could use to dissuade patients from ever even thinking along those lines and discuss with them their use of alternative therapies or medicines. Some things that they pinned great hope on really had no benefit.
I also congratulate the noble Lord, Lord Saatchi, on having focused our minds on the patient in the context of themselves as a person and their whole family. He put me in mind of a patient I had at one time who was in exactly that situation. She was a young woman with a rare disease who was clearly dying. We discovered that her children had been fundraising at the school gate for a treatment that they had found on the internet. This treatment had been shipped over from America and she wanted it given to her. There was no evidence base that I could find for it, and I discussed it at length with her and her family, documenting everything—pages and pages of documentation of those conversations. She knew she was dying but she wanted to try it because she knew that her family could live afterwards if she tried it; but if she had not done so, they would not have been able to. Therefore, I undertook to take the whole responsibility on myself for administering it, equipped myself with drugs for every adverse event that might occur, and gave her one dose. There was no adverse effect but there was no benefit either, but after her death her children, who had fund-raised at the school gate, were able to cope better and were glad that she had at least tried it.
We have a system in medicine called the N of 1 trial, which is underused and should be used, particularly where we have rare conditions and genetic disorders, and where we could document and should be documenting what we do. There is a problem, though, for those who instigate such trials in getting them published. I would like to address the publication difficulty in my closing remarks—the difficulty of pooling all the little bits of information that can come from different aspects of medicine.
I think that the N of 1 trial will have an increasing place as we get further into rare genetic conditions and personalised medicine, but the NHS, with its push to embrace research as a core component, is going to have to look at a kind of buffer zone for funding the additional bits of work that need to go along with doing that properly. We also need to have good publication of negative results and we need to publish all the results, including all the adverse effects, when trials fail. Unless all of those emerge, we really will not know the full picture and what we are dealing with.
I make a plea that in this push-pull with which we are faced in medical innovation, there is a real push to have a repository for the results of some of these N of 1-type studies, and a repository for negative results and those that are currently going unpublished.