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The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): I am most grateful for the way in which the noble Lord, Lord Campbell of Croy, has moved this amendment because he

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most helpfully said that it was a probing amendment; in other words, that the matter requires clarification. The clarification was readily to hand--not for the first time--from his namesake, the noble Lord, Lord Campbell of Alloway, who in my judgment accurately described the constitutional position.

The referendums to be held in Scotland and Wales will indeed be advisory, in the same way as every other referendum in the United Kingdom has been advisory. The well-known principle is that Parliament cannot tie its own hands. I believe that all Members of the Committee who have spoken have made that point. After all, what we do today we can change tomorrow. The Government's position is quite plain and I repeat it. It was made plain by the noble Lord, Lord Sewel, on an earlier occasion, as has been mentioned. No referendum Act can require Parliament to do or not to do anything. As the noble Lord, Lord Mackay of Ardbrecknish, reminded us, the Scotland Act placed a requirement on the Secretary of State to lay an order to repeal the Act if the threshold were not reached in the referendum. However, as a constitutional matter, Parliament could have chosen to reject the order and commence the Scotland Act anyway.

I recognise entirely that the conflict between the general public and both Houses of Parliament could become quite acute in certain situations, as the noble Lord, Lord Mackay of Ardbrecknish, noted. When the results of the referendums are to hand, it is for Parliament to reflect on them and it is for Parliament to act as it sees fit. It is not necessary--as most Members of the Committee have indicated--to state in the Bill that the referendum in Scotland or in Wales is to be advisory. Under our constitutional arrangements it could be nothing else.

Lord Fraser of Carmyllie: I hope I may speak briefly. This may seem, relatively speaking, to be an unimportant amendment to this Bill. I wholly agree with the noble Lord's classic Diceyan statement as regards the sovereignty of Parliament. What troubles me, however--as my noble friend Lord Mackay indicated--is that in taking forward the development of its ideas the Scottish Constitutional Convention repeatedly referred to the concept of sovereignty resting with the people in Scotland. It expressed that in a way that I do not think Dicey would have done. I note that the noble Lord, Lord Ewing, is present and he may correct me if I am wrong, but I understood that it derived its authority for that assertion from the famous dictum of Lord President Cooper in the famous case of MacCormick v. Lord Advocate in 1953. The issue involved what was to appear on pillar-boxes--whether it was Queen Elizabeth II or simply Queen Elizabeth. I quote from it because we must have a clear understanding in Scotland as to whether or not it is advisory. Otherwise some people may be seriously misled about the real consequences. In Session Cases at page 411, Lord Cooper said:


    "The principle of unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law. It derives its origin from Coke and Blackstone, and was widely popularised during the nineteenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form in his Law of the Constitution. Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced

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    them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done".

I have no doubt that the noble Lord, Lord Williams, would have some difficulty with much of what is set out in that paragraph. He may care to reflect on it.

I urge the Government to appreciate that there is a school of thought in Scotland that would not accept that a clear majority in a referendum in Scotland would be only advisory in effect. If we are to have a rational, sensible debate in Scotland on the matter, there should be no doubt in people's minds--I do not refer simply to the view that I express or that of the noble Lord--that it is the view of Parliament.

That is important in this respect. If there is to be an inalienable expression of the sovereignty of the Scottish people in a referendum, it would have serious implications when we subsequently discuss a Bill to establish a parliament or assembly. If the outcome were a yes vote, it would be wholly presumptuous and wrong of either House of Parliament to attempt to interfere with that expression of view.

5 p.m.

Earl Russell: The noble and learned Lord, Lord Fraser of Carmyllie, is leading himself into very deep waters. The Cooper judgment must be taken to have a great deal of force. If we wish to see how much force, we should read carefully the text of the Act of Union of 1707. A large amount of the Act lays out things which the Westminster Parliament may not do. It is hard to reconcile that with the Coke and Blackstone doctrine of sovereignty as we have been used to operating it this side of the Border.

However, in these matters I think that one should accept Aristotle's maxim that it is the mark of the educated man to look for no further certainty in any matter than the nature of the matter will admit. In those circumstances, I think that we may be unwise to pursue this matter any further.

Lord Hughes: I wish to speak on the point as regards whether the matter is advisory or otherwise. The noble and learned Lord, Lord Simon, stated well that Parliament cannot be bound by a referendum. However, the noble Lord, Lord Rees-Mogg, put his finger on the point. Parliament cannot be bound by a referendum, but a government can be bound by a referendum; and a government with a majority of 179 in the House of Commons is most unlikely to fly in the face of what the people of Scotland have decided in the referendum.

We shall have further debate on this issue on Amendment No. 39. But so much rubbish has been talked about what took place in 1979. A majority was in favour of the Bill. The noble Lord, Lord Campbell of Croy, pointed out that it was 33 per cent. to 31 per cent. However, we had the extraordinary position put forward by the noble Lord, Lord Renton, who is usually so logical, that if 64 per cent. take part in the vote the remaining 36 per cent. must all be assumed to be against the proposals.

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Let us take the last election in 1992. The Government gained 42 per cent. of the vote. On a 75 per cent. poll, that was 31.5 per cent. of the electorate. But no one in government at that time said that the 25 per cent. who did not vote were against the majority.

I suggest that we may discuss this further on Amendment No. 39. But I believe that the noble Lord, Lord Rees-Mogg, is right: it can be binding on the Government who put the referendum before the people. As a loyal supporter of the present Government, I shall be most unhappy if at the end of the day they turn down what the people of Scotland have said, whether yes or no.

As regards sovereignty being with the people, that is an old concept. Three hundred years ago Mary was not Queen of Scotland; she was Queen of Scots. Even then the issue was that sovereignty rested with the people. Parliament may have changed that. It does not alter the concept but it alters the way in which it is worked out.

The noble Lord, Lord Campbell of Croy, spoke about the difference between a referendum before the Bill was passed and a referendum after it was passed. He implied that a referendum before the Bill must be advisory, but a referendum after the Bill must be obligatory. Whichever way we want it, we must accept that the position is clear: that it is advisory so far as concerns Parliament. But we must go to the other issue: that a government which have put the referendum before the people must accept that it is mandatory on them.

Lord Campbell of Alloway: As six noble Lords have strayed on to the point about the turn-out proportion of those eligible to vote, referred to in Amendment No. 39, which is relevant to this amendment, does the noble Lord, Lord Williams of Mostyn, wish to deal with the issue in outline now or does he wish to defer this important matter until later?

Lord Williams of Mostyn: I think it proper to deal with the matter in its appropriate place. Although I respectfully agree with the noble Lord that sometimes the debate strays a little, unfortunately I have neither a crook nor sheepdog with me.

Lord Mackay of Ardbrecknish: Before my noble friend Lord Campbell of Croy decides what to do, I wonder whether I can tempt the noble Lord, Lord Williams of Mostyn, into addressing one of the questions I put to him, to which perhaps wisely he decided to give a body swerve. I refer to the issue about sovereignty which has been raised by the noble Lord, Lord Hughes. It is important although I do not think that it is of central importance to the position about referendums.

If the Scottish Constitutional Convention, in which his party was the main player, stated clearly--I do not think anyone has denied that it stated clearly--that sovereignty rests with the Scottish people, how does that fit in with the proposition that a referendum cannot bind Parliament? How does it fit in with Mr. Blair's assertion that sovereignty rests with him? Perhaps I can tempt the noble Lord, Lord Williams of Mostyn. If he does not

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wish to dip his toes into the complexities of Scottish politics, perhaps his noble friend Lord Sewel may wish to give us his advice on this matter.


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