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Scotland Act 1998 (Modification of Schedules 4 and 5 and Transfer of Functions to the Scottish Ministers etc.) Order 2015

Volume 759: debated on Thursday 26 February 2015

Motion to Approve

Moved by

That the draft Order laid before the House on 20 January be approved.

Relevant documents: 20th Report from the Joint Committee on Statutory Instruments, 25th Report from the Secondary Legislation Scrutiny Committee, 9th Report from the Constitution Committee

My Lords, as the House well knows, on 18 September last year the people of Scotland, including tens of thousands of 16 and 17 year-olds, voted in the Scottish independence referendum and made the historic decision that Scotland should remain part of the United Kingdom. The participation of our young people in that vote was truly historic. They showed that they were more than capable of being part of Scottish democracy when they helped their country to take the biggest decision we have faced for centuries. It demonstrated a desire to be involved in an event which would shape the future of their country.

In the run-up to the referendum, pledges were made to the people of Scotland. The three pro-union parties—the Conservative Party, the Labour Party and the Liberal Democrats—all made a vow to devolve further powers to the Scottish Parliament, should Scotland remain within the United Kingdom, thereby ensuring that Scotland retains the best of both worlds. In keeping with that vow, the day after the referendum the Prime Minister made the announcement that the noble Lord, Lord Smith of Kelvin, had agreed to lead a commission to agree what those new powers should be. The commission would work with the five parties represented in the Scottish Parliament to make that determination.

The commission invited submissions from political parties, a wide range of business and civic organisations and the wider public to help guide its consideration of what further powers should be devolved to the Scottish Parliament. Following due consideration of all submissions and views garnered by the commission, on 27 November 2014 the report detailing the heads of agreement was published. That report was welcomed by this Government, and, as this House is aware, on the 22nd of last month we published the draft clauses which will make up the substance of the next Scotland Bill to implement the recommendations in that report.

However, one of the recommendations made by the commission is being taken forward separately from that Bill: the recommendation that the United Kingdom Parliament devolves the relevant powers in sufficient time to allow the Scottish Parliament to extend the franchise to 16 and 17 year-olds for the 2016 Scottish parliamentary elections, should the Scottish Parliament wish to do so. That is exactly what this draft order seeks to achieve. Not to have taken this forward now, by means of this order, would have risked the Scottish Parliament having insufficient time to bring forward any subsequent legislation, should it choose to do so, to implement it and to have any necessary measures in place well in time for the 2016 Scottish parliamentary elections.

I am most grateful to my noble and learned friend for giving way. The document to which he referred, Scotland in the United Kingdom: An Enduring Settlement, published in January, suggested that the alterations to the franchise should require a supermajority of two-thirds in the Scottish Parliament. The order being presented today bypasses that. If it was thought appropriate to have a supermajority to change the franchise in January, why is it not thought appropriate in February?

My Lords, that point was made by the Constitution Committee of your Lordships’ House, and I will deal with it when I come to deal with the points made by the committee in its report, published earlier this week.

The draft order is made under Sections 30 and 63 of the Scotland Act 1998, the Act that set out the original devolution settlement for Scotland and that continues to demonstrate that devolution is remarkably resilient and flexible. Several Section 30 and Section 63 orders have been made under that Act and, even with the new upcoming Bill, we do not expect that to change. Where a need for change is identified and agreed, those changes will be made by the most appropriate means.

By virtue of Section 30 of the Scotland Act 1998—which I shall refer to as the 1998 Act—this draft order will give the Scottish Parliament the power to legislate to reduce the minimum voting age to 16 at elections to the Scottish Parliament and to Scottish local government elections. The Scottish Parliament will also be given the power to legislate to make provision about the registration of electors in order to give effect to any such reduction in the minimum voting age. However, I wish to be clear that the draft order itself does not actually reduce the minimum voting age to 16 at both of these elections. Rather, it paves the way, by conferring the necessary legislative competence on the Scottish Parliament, to make the necessary legislation to achieve this, should it choose to do so.

Section 63 of the 1998 Act allows for an Order in Council to provide for any functions, so far as they are exercisable by a Minister of the Crown in or as regards Scotland, to be exercisable by the Scottish Ministers concurrently with the Minister of the Crown. This draft order will give the Scottish Ministers the ability to exercise certain functions relating to the individual electoral registration digital service—which I shall refer to as the digital service—in or as regards Scotland, when giving effect to provision reducing the minimum voting age to 16 in Scottish Parliament or Scottish local government elections or both. Provision relating to the use of the digital service for applications for registration, or for verifying information contained in applications for registration, is otherwise reserved to the United Kingdom Parliament.

The draft order will also have the effect that, if the Scottish Ministers exercise the functions given to them in relation to the digital service, in certain cases the requirement to consult the Electoral Commission and the Information Commissioner, and to publish reports prepared by the Electoral Commission, will apply to the Scottish Ministers. I would like to make it clear that the Scottish Ministers will be able to exercise these functions given to them by virtue of this draft order concurrently with UK Ministers and subject to the agreement of a Minister of the Crown.

I appreciate that concerns about the draft order have been raised by the Constitution Committee of your Lordships’ House, and I turn to these now. A question was raised about the propriety of using Section 30 of the 1998 Act to make this change. As I have already stated, several orders have been made under Section 30 since 1999, and it is right that they should have been. Section 30 is a tailor-made power for altering, by an Order in Council, the legislative competence of the Scottish Parliament without the need for primary legislation. Section 30 orders, as they are known, are part of the agreed process set out in the 1998 Act. That Act, including that particular process, was fully scrutinised, and the Section 30 process approved, by this Parliament. Therefore, the use of a Section 30 order is an entirely appropriate way to take forward this matter.

Again, I remind your Lordships that it would not have been possible, in the time available, to deliver this important aspect of the Smith commission agreement if the provisions had been contained in a Bill to be brought forward after the next general election. Any consequent legislation brought forward by the Scottish Parliament to reduce the voting age to 16 for Scottish Parliament and Scottish local government elections will be scrutinised by the Scottish Parliament in the normal way.

On the point raised by my noble friend Lord Forsyth, the committee queried whether or not it was appropriate that this order does not include the supermajority procedure requirement. The order delivers the recommendation in the Smith commission which was agreed by all five political parties represented in the Scottish Parliament. Paragraph 25 of the agreement states that the Scottish Parliament should be given the power to legislate to enable 16 and 17 year-olds to vote in time for the 2016 Scottish Parliament elections should it choose to do so. The five parties represented in the Scottish Parliament which agreed this issue during the Smith process will therefore be responsible for bringing forward this change in that Parliament, should they choose to do so. This is a question not even of consensus but of unanimity. I am advised that earlier this morning the Devolution (Further Powers) Committee of the Scottish Parliament unanimously recommended that the Scottish Parliament approve this order. No other change to the operation and structure of the Scottish Parliament has that political consensus at the present time.

These are matters for future Scottish Parliaments to debate and any such change will, as my noble friend pointed out, be subject to a supermajority provision. However, we are talking about a recommendation that came forward from the Smith commission which commands unanimous support within the Scottish Parliament. We therefore believe it is not necessary to include a supermajority provision in the current order.

My noble and learned friend is saying to the House that the reason that no supermajority provision is required is because it was a recommendation from the Smith commission. However, this document, An Enduring Settlement, which was the Government’s response to the Smith commission, said that there should be a supermajority for changes to the franchise or important constitutional changes. He has not explained why he has changed the Government’s position in a matter of weeks.

My Lords, the Government’s position has not changed. My noble friend will have heard that I said in my first paragraph in moving this order that it was laid before the House on 20 January 2015. That was before these clauses were published. It was always clear that there was not going to be a supermajority requirement for the order, which is on a proposal that commands unanimous support in the Scottish Parliament. There are further technical issues. The clause that deals with the supermajority is somewhat complex and would have led to unnecessary complexity in an order for which there is unanimous agreement that it should go forward.

I do not believe that it was ever the intention that this order would require the supermajority provision. To have done so might have led to accusations that we were going back on something that had been agreed. It was announced early on, before the clauses were published, that we would proceed by way of a Section 30 order to meet not only the spirit but the specific recommendation of the Smith commission that this part of the agreement should be taken forward ahead of the Bill to implement other aspects of it.

It is noted in the Constitution Committee’s report that the change made by this order does not directly affect the franchise for UK general elections, European parliamentary elections or local government elections beyond Scotland. Therefore the order has no direct constitutional implications for the rest of the United Kingdom. I emphasise that the power to set the franchise for voting in United Kingdom parliamentary elections will remain with this Parliament. It is not the Government’s policy to do that—indeed, it would be impossible—for the next general election in the four or five weeks that are left.

While the committee raises concerns that any reduction in the voting age in Scottish Parliament and Scottish local government elections may lead to pressure to extend the franchise for other elections, this is not exactly a new debate. Indeed, some parties represented in your Lordships’ House and one of the parties in the coalition—my own—believe that there should be a change in the franchise: it is not a new debate. During the debate on the order in the House of Commons, this was seen to be a positive development. While there may not be a consensus in this Parliament at the present time for changing the franchise for general elections, I am sure the debate will continue.

Rather than devolve only the powers necessary to allow 16 and 17 year-olds to participate in the 2016 and subsequent Scottish Parliament elections, as the committee pointed out the draft order devolves the power to enable the Scottish Parliament to legislate to lower the voting age to 16 in time for the 2017 local government elections in Scotland if it so desires. I can hear a Member saying that this was not in the Smith report. I was just going to explain why it is being done, albeit that it was not in that report. It is another very sensible, practical thing and the Government should be given credit when they do such things. The draft order does, indeed, go further than is specified in the Smith report but in terms of timing only. Unlike with Scottish Parliament elections, the noble Lord, Lord Smith, did not specify the timescales within which the Scottish Parliament should be given the power to enable 16 and 17 year-olds to vote in local government elections. However, the commission did recommend that:

“The Scottish Parliament will have all powers in relation to elections to the Scottish Parliament and local government elections in Scotland”.

The order clearly does not go beyond that overall recommendation.

Including the power to enable 16 and 17 year-olds to vote in Scottish local government elections in this order was felt to be beneficial and practical for two reasons. First, there is an issue of timing. If the Scottish Parliament wished to take forward such legislation, then the timing of the forthcoming Scotland Bill would make it very challenging to devolve the necessary powers in sufficient time for the Scottish Parliament, in turn, to legislate in time for the Scottish local elections in May 2017 without breaching normal electoral guidelines. Secondly, the franchise for the Scottish Parliament election is currently the same as that for the local government franchise and the former is set by reference to the latter.

Devolving only the legislative competence to reduce the minimum voting age for Scottish parliamentary elections would have meant that the Scottish Parliament would have needed to separate the Scottish Parliament franchise from the local government franchise. That would have introduced unnecessary complications into the registration system. In the absence of a strong policy reason to make the two franchises different, there seems no reason to separate them when all it would bring is unnecessary cost and complication for electoral administrators and potential confusion for electors.

Finally, the committee raised the issue of data protection and individual electoral registration, particularly in connection with individuals under the age of majority. Enacting provisions to protect the data of the prospective young voters is part of the implementation of the order. The Scottish Parliament is well aware of its obligations under the Data Protection Act 1998 and, generally, to adequately safeguard the information provided for, and used in, the process of registering electors. Further, as already mentioned, this draft order will give the Scottish Ministers the ability to exercise certain functions relating to the digital service. I can assure noble Lords that all information used by this system is treated appropriately and is adequately protected. The service is the name given to the series of interlocking digital systems which allow applications to register as an elector to be made online and for the personal information given by applicants to be verified against government data. It comprises the online application service, the secure environment which receives and directs data, secure connections to electoral registration officers and to the Department for Work and Pensions, the DWP processing environment and the interface with electoral registration officers’ election management software.

The other place approved this draft order on 2 February. If the approval of this House and the Scottish Parliament are also secured, then the order will go forward for consideration by Her Majesty in Council. When the order comes into force, the Scottish Parliament will have the legislative competence to bring forward the legislation necessary to allow 16 and 17 year-olds to vote in all Scottish Parliament, Scottish local government elections or both. The United Kingdom Government have fast-tracked devolving the power for this as an exception to the rest of the Smith package so it can be in place in time for 16 and 17 year-olds to vote in the 2016 Scottish parliamentary elections and the 2017 Scottish local government elections. It is my understanding that the Scottish Government intend to introduce this legislation, to lower the voting age, in the Scottish Parliament as soon as possible once this order has been made by the Privy Council. I commend the order to the House.

My Lords, I am most grateful to my noble and learned friend for setting out the arguments which the Government advance on behalf of this order. I am not entirely persuaded by the force of those arguments and I shall come to that in the course of my speech. However, the main thrust of what I will address is the constitutional aspect of bringing forward this measure in an order of this kind. My noble and learned friend referred to the fact that several Section 30 orders have been used. That does not, in itself, make it right. What matters is the content of the orders and the circumstances in which they are presented.

I am concerned partly with the substance of what is proposed but mainly with the procedures from which the order has emerged. Your Lordship’s Constitution Committee is conducting an inquiry and will in due course publish a report on the draft clauses published to enact the recommendations of the Smith commission. As my noble and learned friend said, the policy enshrined in this order has been brought forward in advance of that so we have issued a short report on it which we published at the start of this week in the hope of assisting the debate. I say in passing that haste is the hallmark of bad law in matters constitutional. This whole process has been redolent of haste.

Our first concern has been the failure of the Government directly to address the constitutional implications of this proposal—or, indeed, the draft clauses to implement the whole of the Smith commission’s recommendations—either in a Command Paper or in the draft Explanatory Memorandum for the order. The changes to the voting age in Scotland have no direct effect on the franchise of other UK elections, as my noble and learned friend said, but there are clear indications that they set a trend. The Wales Act 2014 provides for the reduction of the voting age to 16 in any referendum on tax-raising powers for the Welsh Assembly. In evidence to our committee, the Secretary of State for Scotland said he thought it “unthinkable” that the franchise for the UK general election of 2020 would not include 16 and 17 year-olds. What a contrast that slide towards a new policy across the United Kingdom is to the procedure followed in the late 1960s, when the age was reduced from the age of 21 to 18 only after two separate commissions had reported, one into electoral law and the other into the age of majority. Consider the contrast also with the Republic of Ireland, where a constitutional convention discussed the issue in 2013. A referendum on whether there should be a reduction to the age of 16 is to be held.

This change in the voting age is highly unusual, looked at across the globe. Internationally, 171 countries have a voting age of 18. Three have an age of 17: Indonesia, Sudan and the Democratic People’s Republic of Korea. Four have 16: Brazil, Austria, Nicaragua and Cuba. One, Iran, has 15. A larger handful, including Japan, Malaysia, Pakistan and Tonga, have ages around the 20 to 21 mark. We in the United Kingdom propose to enable Scotland to do this without adequate recent consultations, with no White Paper or debate in Parliament, just an unamendable piece of secondary legislation which prevents effective scrutiny. I do not think that that is an appropriate way to proceed with constitutional legislation of this kind—legislation, be it noted, that goes beyond the Smith commission recommendations, as my noble friend Lord Forsyth pointed out, by including local government elections as well as Scottish Parliament elections. Again, there has been no consultation on that or proper parliamentary consideration.

One of the proposals that I do welcome in the draft clauses, to which my noble friend Lord Forsyth again referred and which are not before us today, is draft Clause 4, which will provide that future change to electoral law in Scotland will need a two-thirds majority in the Scottish Parliament. That is an important point of principle which I welcome, but if that is to be introduced shortly, why not now, for this significant change to the voting age being proposed? It really is not good enough simply to say, “Because it was in the Smith commission proposals”. Those proposals were not the basis of parliamentary consideration either. We will now be presented with draft clauses, which have not yet had any scrutiny whatever.

Notwithstanding whether noble Lords are wedded to a supermajority or opposed to the 16 age-limit threshold for voting, can the noble Lord do a better job of explaining the Government’s transition during the last few months than the Minister did? The only reason I heard for not having a supermajority was the unanimity in the Scottish Parliament. That seems to completely undermine the argument against having it. If there is such unanimity, a supermajority would not in any way preclude the possibility of that passing. Can the noble Lord explain why the Government’s position appeared to change from January to February, and back again from February to March?

My responsibility is not to explain the Government’s position; my responsibility is to hold the Government to account. I am grateful for the noble Lord’s contribution, which does a great deal in that direction, and I am sure that my noble and learned friend will wish to return to this matter in his reply to the debate.

Another issue on which your Lordships are expected to be swept along is the important one of data protection, to which my noble and learned friend referred, and the implications of including details of minors in a public document such as the electoral register. I heard what my noble and learned friend said, and I accept that attempts are being made to take this matter seriously and reduce the risk that might arise. But again, that is a matter that should have parliamentary scrutiny.

Individual electoral registration means that more personal data will be collected and held by registration officers than happened under the old household registration system. Most young people about to turn 16 will probably apply for registration as attainers, at which time they probably will not yet have received their national insurance number, which is the primary means of verification. The examination, acceptance and storage of alternative proofs of identity will need the most careful thought and reassurance. None of this has had the kind of parliamentary scrutiny that the Committee stage of a Bill would provide—although I do welcome what my noble and learned friend said about the attention being given to the matter.

There have been many false dawns with earlier consultations on a reduction in the voting age. None has led to a firm conclusion in support of it. In 1998 the House of Commons Home Affairs Committee decided not to recommend a change. In 1999 the Howarth working party on electoral procedures reached the same conclusion. In December that year, in proceedings on what was to become the Representation of the People Act 2000, an amendment to reduce the age from 18 to 16 was rejected by an overwhelming majority.

As for the merits of the case for younger voting, of course we want young people to take an interest in our democratic process and in the issues of the day, and to start to develop their political beliefs. But if giving them the vote at 16 would achieve that, why does the 18 to 21 age group have the lowest turnout rate of all at general elections? It is not getting the vote earlier that matters, but attaining sufficient intellectual maturity and involvement in the issues that will affect their lives which will begin to engage them. Then, when they do get the vote, they will value it and be more likely to use it.

I mentioned the number of reports that came out in the early years of this century. People addressed the issue, and some of them left the door open. But broadly they all agreed, as successive Governments have done, that the present position should remain in place. In 2003 the Electoral Commission reached that conclusion as well.

I am most grateful to my noble friend for the excellent report his committee has produced. Did the committee consider why, if it was proposed to reduce the age of the franchise and give the right to vote at 16, it was not also proposed that people should be able to stand as candidates at 16?

Again, my noble friend makes an extremely relevant point. The relationship between voting age and the age of majority has not been adequately considered, either. I hope that this will emerge in the course of the debate. I do not wish to take up too much of the House’s time, so I will bring my remarks to a conclusion. I am sure that other noble Lords will wish to explore further the pros and cons of that change. The burden of my message to your Lordships today is simply to state that the appropriate parliamentary processes for a constitutional change of this kind have not been properly observed—and that is something that should not pass without comment.

My Lords, this is a short measure, but one that I believe will have a very positive impact on our democracy—across the United Kingdom as a whole, but most particularly in the relationship between the Members of the Scottish Parliament and local authorities in Scotland and the people who elect them, and on how politicians respond to the desires of voters when they are elected.

On the assumption that the Scottish Parliament will vote to use the power once it has been transferred, for the first time in these islands parliamentarians will be elected by people aged 16 and over. That will mean that in elections to the Scottish Parliament and local authorities, not only will 16 and 17 year-olds be taught about citizenship and informed in schools and colleges about the processes of democracy, but they will be active citizens themselves. They will be enfranchised, and they will be participants. That is right and proper, and a considerable and positive step.

MSPs will no longer see 16 and 17 year-olds simply as people for whom services are provided in schools or colleges, or by councils and elsewhere; they will have to consider them as voters—not only as the receivers of services but as people who will have a direct say in how those services are shaped and delivered. They will become part of the democratic relationship between those who are elected and those to whom they are accountable. That is important and this proposal is a first step towards that.

Would my noble friend like to comment on a point that has already been made: namely, that if 16 year-olds have the right to vote, should they not also have the right to stand as candidates? Will he give his views on that?

There are two aspects to that. The first is the desire of young people themselves. For many years a consistent theme in campaigns to give people the vote at 16 is that participating in the democratic process does not automatically assume that exactly the same process should apply to those who are elected to Parliament to make these decisions. That comes from young people themselves. Secondly, the age of majority is not necessarily applied consistently as regards young people’s rights and responsibilities. For example, different approaches are taken as regards the minimum age at which one can drink alcohol, drive, join the military or buy knives. Today, we are discussing the specific issue of the enfranchisement of 16 and 17 year-olds. The age of majority and whether young people of 15, 16 and upwards should be granted other rights and responsibilities is quite rightly an area which we continue to debate—and which young people themselves continue to debate. I see that my noble friend is itching to intervene and I am delighted to give way.

I am most grateful to my noble friend, but is he really arguing that 16 year-olds in Scotland should not be trusted to buy a packet of cigarettes but should be trusted to decide the future Government of the country?

I am saying that there are differences in the rights and responsibilities of young people, and for those aged under 21, in these islands. In many instances the decisions made on why those rights and responsibilities differ for different ages are taken on their own merits. For example, decisions on the age at which one has the legal right to drive, join the Armed Forces or, indeed, buy articles that could potentially be used as weapons are taken on their own merits. Likewise, the proposal that 16 and 17 year-olds should also have the vote should be taken on its own merits.

I agree that there has not always been consensus on this issue among the political parties. When I was a Member of the Scottish Parliament, the Liberal Democrats worked hard with our Labour coalition partners to persuade them of the merits of this proposal, and we have done the same with our partners in this coalition. However, as my noble and learned friend indicated, there is now a settled consensus among the parties in the Scottish Parliament representing the whole spectrum of political view that this is the way forward.

I need not rehearse the arguments further about the merits of 16 and 17 year-olds voting, because to some extent the best evidence that I can provide was presented by the young people themselves in the referendum in Scotland. Those of us who took part in debates on the referendum will know that some of the best and most profound points in terms of perspective, responsibility and maturity were made by 16 and 17 year-olds who participated in them. Of course, that was a binary decision about the future of the country but there is no doubt in my mind that it demonstrated absolutely that not only can 16 and 17 year-olds be trusted to decide how they elect their representatives but it is important that we should now enshrine that in law.

My noble friend Lord Lang referred to turnout. He is quite right: the Electoral Commission’s assessment of the referendum in Scotland showed that the turnout of 16 and 17 year-olds was 75%. The rate dropped for those aged between 18 and 24 before it started to pick up for those aged 25 to 34 and those above 35. If I follow his rationale that democratic participation should start early and then develop, the best way of enhancing 18 to 24 year-olds’ participation in democratic elections is to enfranchise 16 and 17 year-olds, as the evidence on turnout suggests that that will indeed be the case. Therefore, this delivers an agreement. The agreement is unanimous and I am delighted to support it.

My noble friend raised two final points on the committee report in which I was quite interested. First, I do not accept that a possible concern that other parts of the UK may have a desire to follow Scotland should be used as a negative to delay this. That other parts of the UK will learn from Scotland’s experiences should be seen as positive. I have no doubt that the Welsh experience that he cited was a result of people seeing the way in which 16 and 17 year-olds participated within Scotland in the referendum.

Secondly, as regards the supermajority, I see in the draft clauses that accompanied the White Paper that there are other aspects that will be the protected subject matters of the supermajority in the Scottish Parliament where there is no consensus. There is no unanimity, and there may be none in future, on whether the regions or constituencies should be redrawn, or the number of regional Members or the balance between regional and constituency Members. I was a constituency Member, not a regional Member, and I know that there was no consensus across the parties. But in this case there is not only consensus but unanimity.

On the final aspect of the technical issues going forward, the Electoral Commission report on the referendum was quite helpful.

My Lords, my question did not concern the merits of a supermajority; I went out of my way to say that notwithstanding whether you were for or against it. My question was about the apparent transition from one position to a second and then to a third one. Since the noble Lord, Lord Lang, understandably refused to take responsibility for explaining the Government’s journey in that direction, perhaps the noble Lord can explain it. That was my question; it was not about the merits of the supermajority.

It is only an apparent change. The noble Lord considers it one, but in fact there is no change. The Smith commission and indeed the introductory remarks of the noble Lord, Lord Smith of Kelvin, are perfectly clear on the powers to be extended to the Scottish Parliament over the franchise, as part of other aspects. The draft clauses accurately reflect the ongoing view in paragraph 27 rather than paragraph 25 of the continuation of the supermajority. In the measure that we have in front of us today—this instrument—and in the draft clauses that Parliament will be debating after the general election, there is no change, as far as I see, in the Government’s position. The noble Lord may not agree with that, but that is my view.

It is not about whether I agree with the merits of it; it is about the objective, factual position. I was not referring to the Smith commission. I was referring to the Government’s publication in response to the Smith commission. The noble Lord may say that it is apparently at odds with the legislation; I think that it is. I am not questioning the merits of the case that he is putting; I am just trying to get an explanation on why there has been an apparent change three times in three months.

I was referring, in my answer to the noble Lord’s previous intervention, to the heads of agreement of the Smith commission, in paragraphs 25 and 27, and, in annexe A, to draft Clause 4 on page 93, which brings into effect the recommendations of the Smith commission. This clause also brings into effect a recommendation of the Smith commission, which is to move, on the basis of unanimity in the Smith commission, to the delivery of this power for 16 and 17-year olds, so that the Parliament will have that authority in advance of the 2016 Scottish Parliament elections. There is no difference in that position on the Government’s part, apparent or otherwise, as far as I see it.

Finally, I joined my party at the age of 16. One of my reasons for doing so was because of the position that my party had to empower 16 year-olds to take part in parliamentary elections. I am delighted that this Government have acted on the unanimity of political views in the Scottish Parliament to deliver this, and that is why I will be delighted if this goes through Parliament today.

My Lords, all I can say to the noble Lord, Lord Purvis, is that he must have been quite an extraordinary 16-year old if at that age he was thinking of joining the Liberal Democrats because it was going to reduce the franchise age to 16. I have to say that when I was 16, I thought that I was a socialist, but I grew out of that after a while.

I am participating in this debate not to argue the merits or otherwise of whether people should have the vote at 16, but because I think that the process by which this is being achieved is absolutely lamentable. We began our proceedings this morning by discussing whether former Members and MEPs should have access to the facilities—the restaurants and bars—of this place. I sat here thinking that this place is presenting itself to the outside world as if it was some kind of club, rather than a House of Parliament. This debate, and the way that the Government have dealt with the matter, shows that we are being treated as a kind of club and not as a second House of Parliament with particular responsibilities for constitutional matters.

We have here an excellent report from the Constitution Committee. My noble friend Lord Lang has explained the reservations which have been drawn to the attention of the House by the committee, but the Government propose to charge on regardless. I have the highest regard for my noble and learned friend the Minister, but even he was struggling to make bricks out of this particular straw. He suggested that there was not really a commitment that contradicted the terms. Scotland in the United Kingdom: An Enduring Settlement was published in January 2015 as Command Paper 8990. It has a foreword signed by the right honourable Nick Clegg, the Deputy Prime Minister, and the right honourable David Cameron, the Prime Minister, which states that it is their response to the Smith commission proposals. On page 17, it states:

“To provide an adequate check on Scottish Parliament legislation changing the franchise”,

which is what we are discussing,

“the electoral system or the number of constituency and regional members for the Scottish Parliament, UK legislation will require such legislation to be passed by a two-thirds majority of the Scottish Parliament”.

Is this not UK legislation? Are we not discussing the franchise? What do those words mean if they do not mean what I say they mean? My noble and learned friend is being Humpty Dumpty. Words, it appears, for this Government mean whatever they believe them to mean and not what they say. This was a document presented to Parliament by the Prime Minister and the Deputy Prime Minister only a few weeks ago. We are entitled to ask why this change has been made.

As the noble Lord, Lord Reid, pointed out, my noble and learned friend made a contradictory statement. He said that we are not having a supermajority because there is consensus that it should happen. As the noble Lord pointed out, if there is consensus, what is the problem with having a supermajority? My noble and learned friend did not make clear whether that supermajority is still required. The noble Lord, Lord Purvis, said that there was consensus. Suppose that there was a majority in the Scottish Parliament that, having had a bad experience with the franchise set at 16, wanted to change it from 16 to 18. Would that require a supermajority, or has that provision simply been dropped? If the answer to my question is, yes, it would require a supermajority, is it not going to look a bit ridiculous to tell the Scottish Parliament that it can change the age to 16 but it needs a supermajority to change it back to where it was?

I am really dismayed that matters of this kind should be being dealt with by orders and regulations, which effectively prevents this House or, indeed, the other place, from making any amendments or changes and having any debate.

That brings me to my next point, which my noble and learned friend acknowledged. Included in the order is a proposal that the franchise should be extended to local government. There was nothing in Smith about that. There is nothing in this document that I can see—I stand to be corrected about that. It has come from nowhere for the sake of convenience. Therefore, the idea that we extend the franchise for local government, which may or may not be a good idea, has not been subject to proper scrutiny. No one in Scotland or any other part of the United Kingdom has had an opportunity to discuss the merits of it: there has been no consultation. As my noble friend Lord Lang pointed out—and has pointed out in the excellent report from the Constitution Committee of this House, which has had to be rushed out in order to meet this timetable, ahead of discussing the draft clauses to which this apparently relates—it is an extraordinary way of doing business.

In the early 1960s, as has already been mentioned, when we changed the franchise from 21 to 18, we did it after having two commissions. The noble Lord, Lord McAvoy, may take credit for it, as a Labour Government did this. The Labour Government in those days were very concerned about consultation and constitutional propriety and there were two separate commissions created to look at this before the change was made. One was on the age of majority, which is the point that the noble Lord, Lord Purvis, was struggling with. How can it be right to have an age of majority that is different to the age of the franchise? We end up with the absurd position that 16 year-olds are not allowed to go and buy a pint of beer, to buy a packet of cigarettes, or to drive a car; but they are allowed to decide the future Government of their country. They are almost certainly not paying income tax or other taxes apart from indirect taxes; they will not even have a national insurance number when they are required to go on the register, because they will be 15. The national insurance number system, as the Constitution Committee report points out, is the means by which we check the identity of voters for the voters’ roll, so how is that going to work? There is nothing that I can see in the explanatory material provided by the Minister to explain any of this or to deal with the issue of whether 16 year-olds should be able to stand as candidates.

I happen to believe that, if you have the right to vote, you should have the right to stand. It is true that there has been a difference in the past. When I was at St Andrews University with the late Robert Jones—who was in the other place as the Member for West Hertfordshire and died rather prematurely—he stood as a student in St Andrews. He promptly got himself made chairman of the planning committee and started to block the principle of the plans of St Andrews for the expansion of the university, which caused a degree of consternation. It was argued then that a student should not be able to be on the council deciding these matters, but at the time people accepted that if you had the right to vote and participate in the election you should be able to stand as a candidate. This is illustrated by this House: the reason why Members of this House do not have a vote at the forthcoming general election is that we are our own representatives in Parliament. That is the constitutional theory. Therefore, if you are able to vote in the election, it seems to me that you should be able to stand and put forward your views. This is completely muddled.

What on earth are this Government doing? They seem to be making up constitutional change as they go along. They seem to be doing it under electoral pressure from the Scottish Nationalists, and—do you know what?—it does not seem to be working. Ladbrokes will give you very good odds on the SNP winning more than 39 seats in the forthcoming general election. You would not have got these odds before we made this foolish vow in the last minutes of the referendum campaign. This process of appeasement and making it up as you go along is creating instability in our country and feeding those who wish to break our United Kingdom. These are facts.

I have bored the Minister to death on this subject; I have spoken on it before and I warned him that if we introduced the opportunity for 16 year-olds to vote, then it would be argued that other parts of the United Kingdom should get the same. What do we have from this Government on the position in respect of Wales? Do we have a similar provision for the Welsh Assembly? Apparently not: we have a provision that 16 year-olds in Wales might get the vote in order to vote in a referendum on tax-raising powers for the Welsh Assembly. Where is the logic of that? You would get to vote on tax-raising powers as a 16 year-old when you may not have to pay them but not get to vote for the Members of the Welsh Assembly. However, if you move north of the border you would get the opportunity to vote for the Scottish Parliament because there is consensus among the political parties about this. Why is there a consensus in Scotland? What about England?

What are this Government doing in bringing forward measures based on the Smith commission, which had a narrow remit? Its remit was to consider what was right for Scotland. It did not look at the rest of the United Kingdom or the implications for it.

My noble friend is seriously misinformed on this matter. If he looks at the Smith commission’s report, he will see the principles that guided the commission, which included “no detriment” to other parts of the United Kingdom. That was one of the principles which all parties to the Smith commission agreed to and which informed the proposals with which it came forward. He is absolutely wrong to say that there was no regard to other parts of the United Kingdom.

In which case, why on earth are we still retaining the Barnett formula and allowing Scotland to raise its own tax, if the principle was that there was “no detriment” to the rest of the United Kingdom? There was no representation from anyone from the rest of the United Kingdom; it was the political parties in Scotland looking at the position in Scotland.

My noble and learned friend, who is a very clever lawyer, is making a quite separate point. You can look at what is in the interests of Scotland in such a way that it creates no detriment to the rest of the United Kingdom, but that is not the same thing as looking at the interests of the United Kingdom as a whole and considering the knock-on implications. That is a matter for this House and, more particularly, the other place but they are being given no opportunity to debate and consider it. In the case of the changes to local government there has been no opportunity for anyone in Scotland, in the Scottish Parliament or anywhere else to consider that.

I return to my point. We had the Smith commission looking at Scotland. Then we had this ludicrous vow made in the last few days of the campaign—after I and many other people had voted, because many people voted by post. It was done without consultation with the party leaders in Scotland, hence the leader of the Labour Party in Scotland resigned and described her party as being treated like a branch office. Our leader Ruth Davidson, who did such an excellent job in the referendum campaign, was not consulted. This was three privy counsellors on the phone, cooking up a scheme. We have not had that style of government, where privy counsellors could consult each other and create legislative change of this kind, since the days of Wolf Hall. We should be very concerned indeed by the way in which this matter has been done and brought forward.

Then we had the childish timetable where the Government were required to respond from September by St Andrew’s Night, and then from St Andrew’s Night we had to have draft clauses by Burns Night. This is pantomime politics. Not only did we have these draft clauses by Burns Night but, a week later, we had the architect—the hero—of saving the union, Gordon Brown, telling us all that what he had produced and agreed by Burns Night was no longer satisfactory and that we needed to do something else. This is riding for trouble. We should consider constitutional matters carefully and they should carry consensus. We should consider the implications for the United Kingdom as a whole. It should never be driven by political expediency or short-term political consideration.

I am enjoying my noble friend’s contribution but, with regard to symbolism, I wonder which has the richer symbolism in what he is referring to. Is it David Cameron not consulting Ruth Davidson in advance of making that joint statement with the other leaders of the UK parties or, in some form of symbolic suggestion, moving the Stone of Scone up to Scotland in 1996 to cross the River Tweed with great fanfare?

I am sure the House will get cross with me if I go on much longer but, as the noble Lord has raised the Stone of Scone, the reason that I persuaded the Prime Minister, who in turn persuaded Her Majesty the Queen, that the stone should be returned to Scotland—and the reason it came up as an issue—had nothing whatever to do with any symbolism.

I shall tell noble Lords the truth of the matter. I do not know if it has been made public before. The reason it happened was that the registrar wished to release the papers in connection with the theft of the Stone of Scone on Christmas Eve in the 1950s, which showed that the then Conservative Secretary of State was then in favour of returning the Stone of Scone to Scotland. It was not returned because at that time Scottish nationalist elements were blowing up postboxes because they had EIIR on them, not EIR, and the then Government decided that to return it at that time would be to give encouragement to those lawless courses. I realised full well that people such as my noble friend Lord Purvis, when those papers were released, would immediately start a campaign and therefore reconsidered the merits of returning the Stone of Scone, on the basis that a treaty, the treaty of Northampton, was signed by the English that promised to do so. As Secretary of State, I felt that, after about 600 years, I ought to maintain the rule of law. It certainly was not a stunt. Given the trouble we were in in 1996 politically, if my noble friend thinks that I thought that returning the Stone of Scone would make one whit of difference, he underestimates my intelligence.

I say to this Government: this constitutional tinkering absolutely has to stop. Look at us—the House of Commons, the other place, went down the other evening at 6 pm. Have we not learnt from the Fixed-term Parliaments Bill? Have we not learnt from the Recall of MPs Bill, which I have been involved in? We have had several debates where I have said, “This is not going to happen. If someone gets into trouble, their party will withdraw the whip and they will not be able to stand”. Very sadly—most unfortunately, I think—Sir Malcolm Rifkind now finds himself with the whip being withdrawn within 12 hours, before any report is given. The whip is taken away from him and he cannot stand. This is coming from a Government who are telling us that Members who get into trouble have the right to face the electorate and the electorate will decide.

This kind of constitutional stuff, which is about partnerships between parties and trying to seize political advantage, was started by Tony Blair and it absolutely has to stop. I very much regret that this House can do nothing about it because of the way that the Government have approached it.

My Lords, can we assume that the noble Lord is agreeing with the idea of having a constitutional commission and convention that would look at the whole of the British constitution before deciding any of these issues?

I am grateful to the noble Lord. As he knows, I do favour that. I believe that the Liberals favour having a constitutional convention and the Labour Party favour having a constitutional convention. Perhaps if we called it something else—let us call it a constitutional convocation or a bright idea—perhaps then we could get a consensus. I absolutely agree with the noble Lord: these things need to be considered; they need to carry wholehearted agreement; and, of course, with each step along the road that is made without thinking of the long-term consequences, it becomes even more difficult to unravel and create a proper settlement. So I entirely agree. On that note of consensus, I hope I have persuaded the Minister to withdraw this ridiculous order.

My Lords, my noble friend will be astonished to hear that I agree with him on one of the main points that he has been making. However, it is about time that somebody from another part of the United Kingdom commented on my noble friend’s very proper regard for the consequences that he has identified for other parts. I am a fellow Celt, but I cannot pretend to be speaking on behalf of Scotland. He is of course correct that this is not something that can simply be left across the border. We would not be speaking about it in your Lordships’ House if it did not have wider implications.

I want to return—this is why I felt the need to speak—to the Constitution Committee’s report, particularly to the contribution of the chairman, my noble friend Lord Lang of Monkton. The critical sentence in the report is the warning about this potentially piecemeal and incremental approach to changing the voting age. What the committee should have gone on to do—this is the missing sentence, if I may humbly submit this to members of the committee and its chairman—was say that the Government should have picked up my Private Member’s Bill, the Voting Age (Comprehensive Reduction) Bill of the previous Session, which received a Second Reading in your Lordships’ House with encouragement from Members on all sides.

I thought that the Minister very neatly put on one side the implications of this order for other parts of the UK, as I will come back to in a moment. Obviously, it is unacceptable in the UK that the critical foundation stone of our representative democracy—the franchise—should be quite different in different parts of our United Kingdom. If Scotland had decided to separate from the other nations of this country, this could have been a discrete issue for the Scottish Parliament, but it is not, they did not and therefore it is of relevance to us all. As my noble friend has indicated very effectively, there has already been a very practical demonstration of the maturity of young people in the Scottish referendum campaign. I am delighted that my noble friend Lord Cormack is here because it was he who gave a practical example during the previous debate of the way in which his granddaughter took a very active and well informed part in the debates.

I apologise for intervening—I missed the first part of this debate—but I must make it plain that, although I have the highest regard for my granddaughter’s intelligence, I do not believe in votes at 16, for all the reasons that my noble friend Lord Forsyth cogently made in one of the best speeches I have heard in this House for a very long time.

I also enjoy my noble friend’s speeches, whether or not I agree with them, because he takes us back to Wolf Hall and other Tudor examples of the behaviour of Governments. In this case, we can look at more recent history. It is not true, as was implied by the Constitution Committee and my noble friends, that this matter suddenly appeared on the political agenda; that is simply not true.

I shall take just one example. I am amazed that no one else in your Lordships’ House seems to have read the excellent Youth Select Committee report from last autumn, published soon after the example that we were given in Scotland, which was very properly given some extra credence by Mr Speaker in the other place. In that report, the very cogent argument for reducing the age of the franchise to 16 is set out in great detail, answering a lot of the points that have already been made in your Lordships’ House. Also, as my noble friend Lord Purvis said, at the end of their secondary school experience with citizenship, in the parental circumstances that they are likely still to be in, young people are much more engaged in the issues that affect them than they are when they go off to work or higher education at 17 or 18. That is why, interestingly, the turnout in Scotland was better among the 16 and 17 year-olds than it was among the 18 to 24 year-olds. Not only that, and I do not know whether everyone in your Lordships’ House will agree with this, but they also voted by a majority to remain in the United Kingdom, while middle-aged men—I emphasise “men”—voted by a majority to separate. It was young people who saw with maturity the advantages of remaining in the United Kingdom.

My point is that if the merits of this order are to be considered carefully, we have to think about the implications for other parts of the United Kingdom. Already, as my noble friend has mentioned, as a result of an amendment that I tabled to the Wales Bill before Christmas, we have made some advances there. The Assembly in Cardiff will have the opportunity to match the change in the franchise that has been demonstrated in Scotland. Similarly, since then, not only has there been this unanimity in Holyrood that has been referred to, but the Prime Minister himself has said, I think, that although he does not personally feel that the time is right for this change, he accepts that there will have to be a vote in due course on extending this further. I think he said that he anticipates there being a free vote in the House of Commons.

Incidentally, there has been a free vote in the House of Commons on this issue, on a Back-Bench day, and there was a majority for making the change. My noble friend Lord Purvis also pointed out that the Labour Party is now committed to this change and has adopted the Liberal Democrat policy. I am delighted that the noble Lord, Lord McAvoy, is looking so enthusiastic about this change: it is obviously a step in the right direction.

Earlier, I heard my noble friend saying that he became a member of the Liberal party aged 16. I can tell him that on my 16th birthday, which coincided with the then Government sending RAF planes to bomb Suez—which, for international reasons, I thought was outrageous—I decided that I was a Liberal. I fear that noble Lords may think that this is an unfortunate coincidence and it would be much better if I had stayed completely unaware.

It is true that there has been extensive discussion of this issue. It goes back many years. In the past two years—nearly three years now—there has been a steady evolution of thinking about this. It goes back to the Edinburgh agreement in 2012, when my right honourable friend Michael Moore agreed that this was a sensible way forward. There has been, as has been said several times already today, the clear example of what happened in Scotland on 18 September last year. There has been the discussion of this issue in the Scottish Parliament. There is already some consensus in the Welsh Assembly on this issue. I think I am right in saying that the Conservative leader in Holyrood has accepted the logic of this case.

On the critical point, however, I am not sure that I am quite on the same wavelength as the Government. It seems to me to be absolutely classically so—I am disappointed that the Constitution Committee did not pick this up—that if, as I was just arguing, the franchise is still the bedrock of our representative democracy, we cannot have geographical discrimination between different parts of the United Kingdom. I do not think that it has been mentioned today, but reference has been made in this context to the evolution of women’s suffrage. Yes, of course it was a gradual process, but at no stage was it suggested that women in Scotland were more mature, more ready for full citizenship than women in other parts of the United Kingdom. We have to look at this as a United Kingdom issue.

Therefore, I think the Constitution Committee is right to say that ad hocery is not appropriate here. Incidentally, I hear from some of the same sources that ad hocery is just what we want as far as the constitution of your Lordships’ House is concerned: we do not want any big change, do we? We want a little ad hocery every generation or so. Nevertheless, on this issue, it is essential that we think through the consequences. There, I think the Constitution Committee has a point.

My noble and learned friend Lord Wallace of Tankerness said in his introduction to this debate that he anticipated, as, indeed, my right honourable friend the Secretary of State for Scotland anticipated, that this process is now unstoppable. I say: godspeed.

My Lords, the noble Lord, Lord Tyler, would like to hear views from people in other parts of the United Kingdom on the implications of this order. He is right: there are implications. You cannot compartmentalise the United Kingdom and have such drastically different franchises in different parts of it. Of course, Scotland has its own law, and we understand that there are differences and nuances, but the one area that brings everybody together is elections to our national parliament and elections to the European Parliament, and below that we have other tiers. It seems utterly unsupportable in the long term that we have this pick-and-mix process where you have a franchise here for this, a franchise here for that, and a franchise here for somewhere else. It is just nonsense.

Without getting into the merits of the voting at 16 issue—a debate I am very happy to get into and certainly some of the arguments are meritorious and others need consideration—the methodology that has been adopted in this case is indefensible. Since 2012, and, indeed, even long before that, the Government have got Scotland completely wrong. The question was wrong and the timing was wrong. We are reacting to the tyranny of populism and nobody is thinking this through. If Alex Salmond got up and said, “15 years old”, we would be saying 15 years old today. He got his question, which was the wrong question, and everything he wanted. The logic is that if we do that, everything will go away. It will not.

I am grateful to the noble Lord for giving way. I just want to add something that he omitted. I refer to the exclusion of 800,000 Scottish people living in the same state from having a vote on the future of the country. It was an absolute disgrace and must never be allowed to happen again. If you want a historic reason for it, I point to the very reason for devolution, which was to recognise the distinct background on philosophy, culture and politics of the nations of the United Kingdom. The difference between Scotland and England has been that sovereignty in England lies in Parliament before the Crown, but for eight centuries sovereignty in Scotland has lain with the Scottish people, not the people in Scotland, but the Scottish people. Therefore, to exclude 800,000 Scots from a vote on the future of their country was not only a political expedient to gain advantage but was contrary to everything that lies intrinsically in the basic difference in politics between Scotland and England.

The noble Lord, Lord Reid, has a very strong argument to make. The irony was that citizens from other parts of the European Union who happened to be registered in Scotland had a vote, even though they were not remotely in any sense Scottish. That seems to be another inconsistency.

The truth is that this order is a symptom of a fundamental flaw and malaise in the constitutional approach of our current Government. While this Government have done so many good things, the one area where they have been at their worst has been in dealing with constitutional matters. We have had one flaw after another. Some of us sat for years trying to work out a constitutional way forward for our own part of the United Kingdom. You cannot make this stuff up on the back of a fag packet and expect to have a system that will be respected in the long term.

The Minister made a point about the Smith commission and doing nothing to demerit the other parts of the United Kingdom. I understand that the clause was within the remit. However, the point made by the noble Lord, Lord Tyler, is irrefutable. Something such as this cannot be done in Scotland without implications for the rest of us. It is impossible. What will happen now? We will have a dog’s dinner of a franchise, which will apply in certain places. We have now invented a Welsh model, which is going to change things. How on earth can we say to 16 year-olds in Brighton, Belleek or Aberystwyth that people of their age in Scotland are fit to make a huge constitutional decision but those 16 year-olds are unfit to elect their local parish councillor? It is not sustainable and we all know that.

In many respects, I understand the panic that enveloped our leaders when they were a few days out from the referendum. One could see why. They saw things going down the drain, and there was a reaction of “We’ve got to do something to stop this”. There is no doubt that the right honourable Member for Kirkcaldy and Cowdenbeath did have an influence, but he came on to the scene and basically bounced the leaders into these vows. He is now going on to part two of them, which takes us into an even deeper jungle.

I understand what the Minister is doing here but he must understand—he does understand because he is a very clever person—that this series of constitutional inconsistencies is unsupportable. It would not be possible to go out and argue this case in front of an audience and expect to be treated with respect as people would know that it had not been thought through and whether one calls it a commission or a constitutional convention it needs to have a sensible time limit. It cannot be seen to be put on to the long finger. We need to sit down and look at all of this. It is one awful mess. I am really distressed about it because I can see what is going to happen. We must not distinguish between our young people. Young people from those regions come together in universities or in further education or technical colleges. They mix with one another and they meet each other. We cannot have a situation where one young person is at one level and is treated as being at that level, while another person is treated as being at a different level. As was said by the noble Lord, Lord Tyler, that cannot be sustained.

I seriously suggest that the Minister should say to his colleagues—I am sure that he has tried to do so—that this blunderbuss, inconsistent approach which we have adopted will do permanent damage to our country. It will create constitutional chaos. We are making things up as we go along. Far from assuaging the rabid appetite of Scottish nationalism, this is feeding it. People can see that the more they shout for this, the more they get. It is not rocket science; it is Pavlov’s dog. It is the same thing. They shout and they roar, and they get a feed, and they do it again. Why would they not do it? That is the question I ask myself.

I have lived surrounded by people who also wanted different constitutional outcomes but who went to the use of force. Force did work for them to a very large extent until eventually we managed to pull the community together to face them down. We will not solve this problem by feeding it and running away from it. It has to be confronted and the arguments for the union must be put in a coherent and consistent manner. We will not maintain the union by producing measures which serve only to prove how hopeless the union must be if it needs such a mishmash of a constitutional mechanism. This will not be the last of it.

My Lords, it seems to me that at times in this debate we have drifted some distance from the core issue of the Scotland Act 1998 (Modification of Schedules 4 and 5 and Transfer of Functions to the Scottish Ministers etc.) Order 2015. What we have here today is quite a narrow technical measure that focuses on the change that will potentially be introduced to give votes to 16 and 17 year-olds in Scottish Parliament elections and in Scottish local government elections. As I understand it, all the parties in this Chamber, in the House of Commons and in Scotland support that move. Therefore, this is about practical, simple and straightforward politics.

Frankly, I do not care how many times the Government have changed their position from one document or from one day to the next. Sometimes in this House we very much welcome a change of position from the Government as long as they get to a good position, and surely that is the core issue here. I think that on this they have reached a practical, sensible, progressive and positive way forward. To be frank, having read the document, I am no great fan of supermajorities. I do not know how many other noble Lords recall that my noble friend Lord Forsyth spoke out against supermajorities. A supermajority is not something that I particularly wish to see. As I understand it, it was agreed as a compromise as part of the tough negotiations under the Smith commission that the Labour Party, as well as the other parties, was very much involved with. The other parties were not necessarily pushing for that supermajority. Regardless of that, let us come back to the issue. This is a simple, straightforward—

I am not sure whether the noble Lord is speaking for himself or for the Liberal party, but when he says that he is not that keen on supermajorities—a view that I share—does he think that that should apply to the other things, other than the franchise, which at the moment, according to the Government, would be covered by a supermajority?

I am simply explaining my personal position, which is that of being sceptical about the need for supermajorities. However, they are not unique and if, as part of achieving consensus on the way forward on some of these issues, that was the position adopted by Smith, I could understand the background and the reasons for it.

Coming back to the issue in hand today, I think that this is a much more straightforward measure than we have reflected in our debate. The danger is that it will look as though we are dragging our heels and that we are a bunch of elderly dinosaurs who really do not want this to happen. That is a real concern. The debate is one thing but the suggestion in the headlines in the press that it will lead to, and in the political discussion in Scotland, will be that 16 and 17 year-olds do not have—what was the phrase used earlier?—“intellectual maturity”. Sometimes you could debate whether 30 year-olds, 50 year-olds or 70, 80 or 90 year-olds have intellectual maturity. I hope that that is a debate that we will never have, and I hope it is not an issue that we will focus on in terms of extending the franchise to 16 and 17 year-olds. Some of them have incredible intellectual maturity and a real interest in political issues. I say to my noble friend Lord Forsyth that I think they could make very good local councillors or Members of the Scottish Parliament.

I recall that when I was elected at the age of 22 I was the youngest councillor in Scotland. That felt very young at the time. You could be 18 when you voted but under the then Conservative Administration you had to be 21 before you could stand. I stood and was elected. I always used to argue that it would be very bad if all parliamentarians were 21 or 22 years old but that it was very good that some of them were young people, and I would argue the same today. I would argue to extend the franchise to 16 and 17 year-olds because I think that if you can get married and have children, join the Armed Forces and pay taxes, you should be entitled to a vote. It is a simple, practical and straightforward measure, and it represents constitutional change. I support the idea of a constitutional convention. Constitutional change in this country can be difficult to achieve, so I say, “Grab it when you can and build on it”. I think that we will build on it and that votes for 16 and 17 year-olds will come for all the rest of the United Kingdom in all elections.

However, it is not uncommon to have a different franchise for different elections. We have it already with EU elections compared with local government elections, UK elections and Scottish Parliament or Assembly elections. Different people have a different entitlement to be on the register. It is a different situation from that of age but it is a different register and a different entitlement. Similarly, in Scotland I would argue that far more important than a move to introduce votes for 16 and 17 year-olds was the move by the Scottish Parliament to introduce fair votes by introducing proportional representation for local government. That change was never introduced in the rest of the UK, although I hope that one day it will be. However, that is the sort of progressive constitutional change that I and my Liberal Democrat colleagues want to see right across the United Kingdom.

So let us vote for change. Let us try to implement change, making it coherent, well thought out constitutional change that is not piecemeal. Sadly, my experience of politics in this country is that change tends to be far too piecemeal, and it often tends to be long delayed and not very progressive.

When I was a Minister in Northern Ireland, in 1973 I introduced proportional representation in the reform of local government there, and I am glad that Scotland has followed our example.

I am grateful to the noble Lord. Lest he unwittingly feeds the very headlines that he seems to fear so much, I want to make plain the burden of those of us who have questioned the measure today—and questioned it in terms of asking for an explanation, which is the essence of accountability. We were not saying that 16 and 17 year-olds lack the capacity or the maturity to vote; we were saying that it was a gross inconsistency to provide those people with the ability to vote for the future of a country but to exclude them from the ambit of intelligence when it came to buying cigarettes or driving. We said that it was incoherent to give them the vote in one part of this country but to deny them the franchise in other parts of the country. In other words, far from arguing that 16 and 17 year-olds were not capable, we questioned why they were capable of this—which many of us, including me, support—but not given access to the many other things that they are capable of doing. I hope that that undermines any anticipatory headlines. Finally, we should not be making policy on the basis of what we think the tabloids will write tomorrow.

I am not suggesting that we do. I have supported this measure since becoming a councillor at the age of 22. I have taken part in many debates on the issue and have heard many people challenge the position for the reason mentioned in today’s debate—that of intellectual maturity. It is a charge that I would like to rebut. The number of young people who were involved in the referendum debate in a constructive and positive way—not all of whom by any means supported Scottish independence—and who took a very mature, well thought out and well researched view on the matter underscored the importance of this issue. It also underscored why most Peers today, I hope, support this extension of the franchise. To make it consistent, it should be an extension across the UK, and the sooner that can happen, the better.

The noble Lord has characterised us as being opposed to votes for 16 year-olds. For myself, I think that the genie is out of the bottle. We will need to have votes for 16 year-olds throughout the United Kingdom, and I would expect the coalition Government to come forward with proposals to that effect, having had a proper consultation period and having considered what the age of majority should be. The noble Lord has been very eloquent but can he deal with this point? It is not a unionist position to do this on a piecemeal basis. Also, if he is right about 16 year-olds, as I am sure he is, what on earth are we doing stopping them buying a packet of cigarettes or buying a drink?

I agree that there is great logic in the argument that has already been put forward in the exchange with my noble friend Lord Purvis about the age of consent, the age for voting, the age for driving, the age for marrying and the age for watching a film with an 18 certificate. We should be reviewing these things, but I am making a practical point. There is a strong argument for much greater consistency and I firmly believe that today’s measure can be part of driving that argument forward and can be the beginning of further change for the rest of the UK. That is why I think that today’s moves are very important. It is almost as if we have flushed out the position of some noble Lords that they do, in fact, support the extension of the franchise to the age of 16, and I warmly welcome that. As Peers and as politicians, we should spend more time engaging with young people, encouraging them and being positive about them. Too often in politics we tend to demonise young people and do them down, and that is a concern of mine.

I finish by paying tribute to Lord Mackie of Benshie, who, sadly, passed away last week. He had an incredible war record. Without people like him, the democracy that we have today simply would not exist. He had an incredible track record both in the House of Commons and in this House. My recollection of him is as a mentor. I got involved in politics at a very young age. I was 22 when I was first elected to the council, and very quickly after that I got involved in campaigning with Lord Mackie of Benshie, who was the president of the Scottish Liberal Party. He was a big influence in my life. I have no idea what his views on these issues would be and I do not pretend to set down his opinion, but I am sure he would be delighted that we are debating this issue and trying to engage more young people in politics, because that is what he did with me. He was very much a mentor, a counsellor and somebody who inspired my place in politics; and each of us can have that role for other young people. The tenor of the debate that we have on these issues is very important. That is why I believe that this Motion should go forward for approval.

My Lords, I have listened with tremendous interest to this debate and with the utmost appreciation for the wonderful exposition of the unionist case from my noble friend Lord Forsyth. One point above all has been borne in upon me: the absolute need for a consistent voting age throughout our country. It is a question of deep principle. Surely that is what we need to settle. Against that background, would it not be appropriate for the Government to withdraw this order, to secure—although, of course, it cannot come immediately—a proper parliamentary decision on the voting age? That should surely come first. That point will stay with me above all from this tremendously enjoyable and important debate.

My Lords, let me come to the aid of the Government. I have really enjoyed the debate and want it to go on longer, but I think we might be getting to the time when we are pushing our luck. I will be relying very heavily on the speech made by Margaret Curran in the other place: a brilliant exposition of the Labour Party position on this issue and on this methodology. I understand the concerns raised about the methodology and I will deal with that later in what I have got to say.

As Margaret Curran said, it is worth remembering that the referendum was decisive in what it decided: to stay within the union. It was also decisive in looking for change. Here I must say that it is easy for people to demonise and insult Gordon Brown, but he is a giant of the international stage, a giant of the Westminster stage and a giant of the Scottish stage, and people who nark away are pygmies in comparison. He came forward almost single-handedly at a time when the future of our country as a member of the United Kingdom was in doubt. It is easy to deride some of his actions, but I am one of those who take the view that, had it not been for the highly significant intervention of Gordon Brown, the outcome of the referendum may not have been so decisive. The call for change is certainly there. That referendum resulted in a degree of consensus on new powers for Scotland, coalescing around the Smith commission.

As the noble and learned Lord the Minister explained, this order deals specifically with the power promised in Section 25 of the final report; that is a fact of life. I will not dwell so much on the issue of 16 to 18 year-olds getting the vote—that is another issue, separate from providing the Scottish Parliament with the power to do that. Many in this House and the other place mentioned the significant involvement of 16 to 18 year-olds in the debate and in the voting itself. Liberal Democrat noble Lords mentioned the 75% turnout, I think it was, of 16 to 18 year-olds, and that is absolutely right. Like many other noble Lords in this House, I also go on the outreach visits representing the House of Lords, and I freely confess that I have changed my mind as a result of the experience of going around the schools and as a result of the referendum debate. Previously I was opposed to votes for those under 18, but the level of awareness, activity and involvement showed that my point of view might have been correct a few years ago but it certainly was not correct now, and we are getting the result of that. Unlike the noble Lords, Lord Forsyth of Drumlean and Lord Stephen, I was not consumed with ambition at the age of 16 to join a political party; I was more interested in joining the local branch of the Celtic Supporters Club, so that I could get on the away bus. I came later in life to politics. But these young people, I think, justify the measure.

Let us come to the point I made about methodology and why we have done this. With regard to people outwith Scotland, it is not a criticism; by definition, it is not their fault. We have to remember the atmosphere in Scotland at the time for those of us who stayed in Scotland and were involved in Scotland. We were not reacting in panic. I have great admiration for many colleagues of the noble Lord, Lord Forsyth, but there was no sense of panic. There was a sense of realisation that people not only voted to stay within the union, which I am delighted about, but that they were also looking for change, and it is right to respond to that.

The House and, indeed, the public owe a great deal to the noble Lord, Lord Lang of Monkton, for the brilliant consideration of this measure by the Constitution Committee. He was absolutely right to raise these concerns. The reaction of some of the Scottish Nationalist people, and the venom with which they responded and in particular turned against the noble Lord, Lord Lang, were completely out of order. He and his committee were providing a good service; it was right that they did that and that these issues were discussed. However, the thread running through them was, I believe, a feeling that there was a sense of panic in Scotland. The noble Lord often stays in Scotland. As I said, I do not agree that there was an air of panic. There was a feeling that something had to be done to respond to the wishes of the Scottish people, and that they were looking for change as well. I give way to the noble Lord, Lord Forsyth.

I am most grateful to the noble Lord. He seems to be making the case that there was no last-minute panic with the so-called vow in Scotland. I do not know how he can possibly make that case, because many of the 16 year-olds—and others, like me—had already voted by post when the so-called vow was published. The vow was not even called a vow by the privy counsellors concerned. This was an antic by the editor of the Daily Record, who put the declaration on the front page and called it a vow, and it was done in the last 48 hours of the campaign. If that is not panic, I do not know what the definition of “panic” is.

The noble Lord referred to the Daily Record. In a previous life he was not so keen on quoting the Daily Record when it called for his resignation over various matters.

This is about not only the vow but the conduct of Gordon Brown in leading the Better Together campaign in public meetings. He was accompanied by Ruth Davidson—she performed brilliantly as well and sat on the same platform as him—and the message got through to the Scottish public. The thoughts of Gordon Brown—not the thoughts of Chairman Mao—and his attitude to Scottish independence and a more powerful Scottish Parliament will go down in history. The noble Lord, Lord Forsyth, may not like it but certainly he will be viewed as the architect of that.

I do not wish to contradict anything my noble friend has said but perhaps we should clarify the difference. My noble friend said that there was no panic in Scotland. I think what the noble Lord, Lord Forsyth, referred to was panic in London. Both may be right.

I intervene to mention Alistair Darling and many other people who spent a great deal of time over a long period when things were difficult. We should put on record our appreciation for the man who led the campaign.

I am grateful to my noble friend Lord Reid of Cardowan. I was coming to the Better Together campaign, but Gordon Brown was specifically mentioned and that is why I led with offering my thanks and congratulations to him.

Given that there has been considerable comment about Gordon Brown, does the noble Lord endorse his latest requests for movement beyond the Smith commission? Does he endorse Mr Brown’s latest utterances?

I have not studied them in detail so I am not quite sure. However, we are dealing with this measure today.

On my noble friend Lord Reid’s point, Alistair Darling led the campaign, Jim Murphy went round the country with his Irn-Bru crates and a large number of other people were also involved. One of the hidden powers behind the transformation of the Better Together campaign was my honourable friend Frank Roy, MP for Motherwell and Wishaw, whose training in the Whips’ Office came through in spades and he certainly helped to deliver. I hope that completes the panoply of people I have to thank for the result.

I have mentioned Ruth Davidson—she was fine—and I am trying to think of a Liberal I can mention, but I will move on.

Charles Kennedy, yes; what a time it was for Charles—a former member of the SDP, but there we are.

On the subject of Gordon Brown, does the noble Lord, Lord McAvoy, agree with his repudiation of the Smith commission’s proposals that the Scottish Parliament should have power to levy income tax?

This is not about what Gordon Brown says now. I cannot deal with a matter that Gordon Brown has no influence on other than within the referendum campaign. What was said in the Smith commission is agreed. Perhaps the noble Lord, Lord Forsyth, will send me these alleged quotes from Gordon Brown and let us move on. I remind the House that it was the disparaging remarks about Gordon Brown from the Benches opposite that inspired my defence of him. I will always come to his defence.

My noble friend Lord Reid is right: there may have been panic in London—I am not party to the higher echelons of power in London—but in the political parties in Scotland there was no panic. There were the strident calls of the SNP and its negative reaction to the referendum result, but that was it.

It is quite clear that the changes proposed in this order are welcome in Scotland. I am Scottish and involved in Scotland and I know that the order is welcome, and it is right that the Secretary of State has brought it forward. As I have said, the noble Lord, Lord Lang of Monkton, has done the House a service by raising these issues and allowing the Minister to respond to them. I make it absolutely clear—even if it invites further interventions—that we are fully behind this order. It reflects the Smith commission recommendations and the requests in Scotland that we should do this, and it is right that the Scottish Parliament should have the power to do so. It is also right and logical that the Scottish Parliament should be given the power to alter the franchise for local government elections.

I hope that we can move forward with consensus and use the consensus that exists in Scotland. Everyone knows that relations between the Labour Party and the Liberals have not always been consensual; the Conservative Party has certainly never been too consensual —especially when the noble Lord, Lord Forsyth, was Scottish Secretary, but I will not dwell on his guilty past—but the consensus is there. Without any doubt we fully support the order and wish to place that on record.

My Lords, I thank all noble Lords who have taken part in this robust and good natured debate. The noble Lord, Lord Forsyth, may have got a lot of things out of his system about the vow and so on, but I suspect that, when we come back after the election, at the Second Reading of the Scotland Bill which will bring forward the clauses, we will have a reprise of his speech and there will be even more things for him to get his teeth into.

The debate has ranged widely, from Wolf Hall, to the Stone of Destiny, to the roll of honour of those who took part in supporting the no campaign during the referendum. A number of important points have been made—for example, the one put succinctly by the noble Lord, Lord Reid of Cardowan, in his intervention on my noble friend Lord Stephen. There are inconsistencies in the things you can do at 15, 16, 17 and 18. You can get married and join the Armed Forces at 16, but the ages for driving and buying cigarettes are different. The order is not about ironing out these inconsistencies. An overview of the differences is for another time and another place; it is not what this order is about.

There was a degree of consensus around your Lordships’ House on the merits of a constitutional convention or convocation, which included the noble Lords, Lord Empey and Lord Maxton, and my noble friend Lord Forsyth, who pointed out that my own party supported it. It is not going to happen this side of the general election—it cannot practically be set up in the next three or four weeks—but, post-election, it is almost inevitable in some form. It will involve not only the political parties but civic communities, which is important, but that is for the other side of the election. It has happened before. In the debate we had in October after the referendum, views from different parts of the United Kingdom and from different parties were expressed about the importance of a constitutional convention.

One of the other themes was the thin end of the wedge, as it may be called. If voting at 16 happens in Scotland at the Scottish Parliament and Scottish local government elections, it may well happen elsewhere. My noble friend Lord Tyler made clear why he hopes that will be the case. With due respect to noble Lords who do not wish to see votes at 16, I could take technical shelter behind the fact that the order does not legislate for votes at 16 in Scotland for the Scottish Parliament; rather it confers the powers for the Scottish Parliament to do so. However, given that the Scottish Parliament has made it clear that it will do so I shall not hide behind the order, but it is important to remember technically what it does.


My noble friend Lord Stephen made the point that we have debated important issues, including the vow. It is quite clear that my noble friend Lord Forsyth does not like how we got here. I voted no, in spite of the vow, not because of it. I voted no because I wanted Scotland to remain part of the United Kingdom and I am delighted that we got the very convincing outcome to the referendum that we did. At the time, it was said that a vote for no was not a vote for no change. The noble Lord, Lord McAvoy, reflected that when he referred to the speech made by Mrs Margaret Curran in the other place. I will come on to the process in a moment.

I wondered whether the Minister voted by post before the vow, like the noble Lord, Lord Forsyth, and I did.

Yes, I did. I voted out of sheer conviction that the right thing to do was maintain Scotland’s place in the United Kingdom.

My noble friend Lord Stephen asked us to do a reality check on what we are about here. This is taking forward recommendations from the Smith commission. The Smith agreement is important, not least because it was endorsed by five political parties in the Scottish Parliament. Looking back, the Scottish Constitutional Convention engaged many parts of civic society in Scotland but, in terms of political parties, it included only the Labour Party, the Scottish Liberal Democrats, the Scottish Greens and the Scottish Socialist Party. It did not include two large parties: the Conservative Party and the Scottish National Party. The Calman commission, the recommendations of which led to the Scotland Act 2012, engaged the Labour Party, the Conservative Party and the Liberal Democrats, as well as others, but it did not engage the Scottish National Party. Here we have an agreement that has been fed into by representatives of five parties, including the Conservative Party, the Labour Party, the Liberal Democrats, the Scottish National Party and the Scottish Green Party.

I am most grateful to my noble friend. How on earth can he say it included the Scottish National Party, which repudiated it as soon as it was published?

It is important to remember that the commission involved the Scottish National Party, which signed up to it. We are seeking, with this order, to implement one of the parts of that agreement. I have not heard anyone in this debate query whether we should be following this course. No one has acknowledged or faced up to the fact that, if this was done by primary legislation in a Bill after the general election, it would be almost impossible to do all the work required to get 16 and 17 year-olds onto the roll between Royal Assent—at the end of this year or even at the beginning of the next—and the election in May 2016. It was, therefore, necessary to do it by a Section 30 order. That order is what gave the Scottish Parliament the power to legislate for the referendum itself. No one has gainsaid that this is an appropriate way to honour the Smith agreement.

My noble friends Lord Forsyth and Lord Lang talked about some of the important data protection issues. My noble friend acknowledged that we are seeking to put in place some ways to take care of these. The order will allow the Scottish Government to set up their own system of identity checking for 14 and 15 year-old attainers and it will be for them to decide how this will be put into effect. I repeat what I said in my opening remarks: the Scottish Government are familiar with the Data Protection Act and must abide by data protection legislation. I recall that this important issue was raised when the legislation for the referendum was being drawn up. I have not since heard any complaints that proper procedures were not put in place to address these important issues.

The noble Lord, Lord Reid, and my noble friend Lord Forsyth spoke of an apparent inconsistency on the question of supermajority. As my noble friend Lord Stephen pointed out, it does not matter so long as you get to the end result and it is the right one. My noble friend Lord Forsyth quoted from page 17 of the command paper. That quote—which is in a box—is from the Smith commission agreement. The agreement itself does not suggest that there should be a supermajority for this one measure of extending the franchise to 16 and 17 year-olds and I do not recall anyone doing so. I know the logic that my noble friend Lord Lang and his committee pointed to, but my right honourable friend the Secretary of State announced very early on that we would deal separately with the power to extend the franchise to 16 and 17 year-olds and no one has suggested that the supermajority should apply to that. The Government’s position has not changed on that at any time.

I am most grateful to my noble friend. I may be mistaken, but I thought that the Government published draft clauses that provided for a supermajority in these circumstances, in line with the Smith commission proposals. I thought I had asked him, at the Dispatch Box, why on earth we were introducing the alien concept of supermajorities and that the Government had defended it.

There is provision in the draft clauses for supermajorities covering a range of matters. The Smith commission recommended this but, so far as I can see, no one has ever suggested that it did so with regard to the extension of the franchise to 16 and 17 year-olds. The recommendation regarding extending the franchise for Scottish Parliament elections to 16 and 17 year-olds was a very separate one and we have proceeded on that basis. There has not been any switch in position, as has been suggested. As I indicated earlier, to include such a provision in the current order would involve detailed consideration on how to amend very key sections of the Scotland Act. For example, thought would have to be given to how the role of the Presiding Officer would be affected by this in deciding whether the provision is applicable and the relationship that the provision would have to the limits of the Parliament to make law. Given that there was never any dubiety about it, the better course was for the order to be in the simple form in which it is presented to your Lordships’ House today.

I fully acknowledge that it was not part of the recommendation that local government should be taken forward now. However, it makes good sense for practical purposes. The franchise for local government elections in Scotland is the same as that for Scottish parliamentary elections. I rather suspect that, if the Government had not done this, someone on the Constitution Committee might have said, “This is what you get if you legislate in haste. Does the Minister not appreciate that the franchise for local government is linked to the franchise for Scottish parliamentary elections? It will lead to considerable additional cost if they are separated”. It is a very practical thing to do and the timing is important. If this were to wait until primary legislation went through both Houses of Parliament and got Royal Assent, there would still need to be legislation done by the Scottish Parliament if it chose to. It would be very challenging to get that done, without breaking some of the timing rules, before the Scottish local elections in 2017.

I listened carefully to my noble friends Lord Forsyth and Lord Lang. My noble friend Lord Forsyth mentioned the referendum experience in a number of respects. Neither of my noble friends referred to the fact that 16 and 17 year-olds voted in the referendum on 18 September. I am not going to join those who thought that the whole referendum campaign was a great festival of democracy. Some of it was not very nice at all. Some noble Lords will recall messages that were not nice being tweeted and read out in our debates. However, people of all parties thought that the engagement of 16 and 17 year-olds worked. Schools held hustings and there was an opportunity for 16 and 17 year-olds to ask proper questions of MPs and MSPs from different sides. There was a turnout of 75%. If we have that turnout among those aged over 18—or 90, or whatever—in the forthcoming general election, it will be a significant improvement on 2010. Young people were not only involved and engaged: they turned out and may have set a lesson to the rest of us about how people might engage.

Therefore, the Smith commission agreement on this particular recommendation did not just come out of the air. As the noble Lord, Lord Empey, said, it is not as though, had Alex Salmond said, “Give us 15”, it would have been 15. I do not think it would have been; it was for 16 and 17 year-olds. The Smith commission was informed by that experience and by how those people had engaged.

It would be very odd if a number of people who could have voted, and possibly did vote, in the referendum were not allowed to vote in the 2016 election—as they would not be if this change does not take place. This agreement came forward and the Government, with the support of the Opposition, said that they would wish to see it happen. If we were suddenly to renege on that promise, the damage would be incalculable. It would be said that this is just the first of many other things that we would renege on. We are therefore asking the House to approve an order that transfers legislative competence and to do something that all parties in Scotland have asked for. As the noble Lord, Lord McAvoy, said, it is welcome in Scotland. We should not stand in the way of that. I therefore commend the order to the House.

Motion agreed.