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Lord Mackay of Ardbrecknish: Perhaps I may say a few words about this matter, following the noble Earl. Debating historical and constitutional matters with the noble Earl makes a change. Normally, in our usual debates, he tells a few anecdotes from times long gone by and then discusses social security issues on the back of those anecdotes. Today, however, we hear him speak with almost no anecdotes, discussing something on which I know he is a great expert. I had hoped that he would address himself to the question I put to the Minister; namely, where does sovereignty lie? Does it lie with the people as the Scottish Constitutional Convention chaired by the noble Lord, Lord Ewing, and now chaired by the noble Baroness, Lady Ramsay of Cartvale, or does it lie with Parliament?

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I know that it is fairly easy to tempt the noble Earl to discuss these matters and perhaps I can tempt him at a later stage to give us an answer on that point. The Government seem to have entirely failed to do so. Certainly, when I stood at the Dispatch Box opposite, I always tried--no matter how inadequate it might have been--to answer questions put by those on the opposite side. If Ministers speak with their noble friend Lady Hollis of Heigham, they will find that, although she sometimes did not like my answers, she certainly knew that she had received answers.

My noble friend Lord Onslow made an important point; namely, there will be knock-on effects of Scottish and Welsh assemblies or parliaments (if we come to it) on the Parliament of the United Kingdom and the way in which we run the United Kingdom. Undoubtedly, the noble Earl, Lord Russell, has confirmed that. Questions will arise about what Scottish Members do down the corridor at Westminster if they no longer have a say over similar matters affecting their own constituencies--the so-called West Lothian question. There may well be other financial matters which will have to be addressed. There will be important matters raised and the noble Lord, Lord Sewel, will already appreciate that there will be important matters about the position of the Scottish Ministers--in other words, Scottish parliament Ministers--on fisheries and agriculture when it comes to the United Kingdom being represented at Brussels by United Kingdom Ministers for fisheries and agriculture.

At Second Reading I attempted to say, as I believe the noble Lord, Lord Sewel, is gracious enough to accept, that we should leave these matters until we come to a Bill, if we do come to a Bill. Then we must address in some detail how the new arrangements fit in. This is a referendum and the matter ought to be decided by the Scots and the Welsh; or perhaps, more particularly, by those people of whatever ethnicity who are living in Scotland or Wales at this particular time.

The noble Lord, Lord Sewel, seems to believe that I concede his case. I am not doing so. I am saying that that is what he says should happen--that is the answer that he gave. I shall return to amendments--indeed, I was about to come to them--about Scots who live in England at this moment and whether or not they should vote; or about Scottish soldiers who are based in England and whether or not they should vote. There is no doubt that my noble friend's amendments would get round those two problems. But I believe that he was wrong in his assertion that the English should be given a vote in this referendum. This is a matter for the Scots and the Welsh primarily, although, if they both agree to have such an assembly, then we and the other place down the corridor will have to address very seriously the question of how the assemblies/parliaments link in with what I, like the noble Earl, Lord Russell, trust will be the continuing United Kingdom.

Having had a debate on this issue, I hope that my noble friend will be able to withdraw his amendments.

Lord Mishcon: The noble Lord, Lord Mackay, is one of the finest debaters in this Chamber. With very good humour, he attempts to tempt people into rash

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statements by way of answers to the direct questions that he asks. He has tempted me. I shall now give a wrong answer to his question. The tempting question was: How does one match the Scottish Constitutional Convention's idea of sovereignty which vests in the Scottish people with the idea of our Parliament being sovereign?

I am sure, in my misguided view, that there is a simple answer. If any Scottish assembly or parliament which may be created as a result of our deliberations and the passing of this Bill decided to hold a referendum, I have no doubt that what is in the Scottish convention would apply. This is a Bill which one assumes will be passed by the United Kingdom Parliament and it is that Parliament and that law which has jurisdiction. The result is that, as our law constitutionally says, Parliament is sovereign and therefore the result of the referendum will be advisory. That is clear to me. But I repeat: if anything is clear to me, as my clients know, it must be wrong.

5.30 p.m.

Lord Williams of Mostyn: I repudiate the suggestion that the constitutional debate in Wales and Scotland--Scotland in particular--which is serious and well informed, can be categorised as a whinge fest. Significant areas of opinion in both Scotland and Wales want an alteration of the arrangements which have substantially been in effect and have led to the over-centralisation, the over-concentration of state power in Westminster. That is not a whinge fest; it is an intelligent approach to modern constitutional arrangements.

The key criterion for deciding who should vote on our proposals for establishing a Scottish parliament and a Welsh assembly ought to be residency in the countries concerned. I was grateful for the support given by the noble Lord, Lord Mackay, to the position for which we contend. It should be the residents of those countries who vote in the referendum; they are the most directly affected by devolution.

Perhaps I may offer an example. I believe myself to be Welsh. I was brought up in a Welsh-speaking household. I no longer live in Wales, as a matter of choice. As a matter of free choice, I am registered to vote in local elections in Gloucestershire. I see a number of my noble friends on the other side who come from west Wales and also mid-Wales--my noble friend Lord Hooson--and also north Wales, which I understand has some intimate connection with the noble Lord, Lord Thomas of Gresford. They may well be entitled to vote in local elections. If so, they ought to be entitled to vote in a referendum.

We are proposing that those entitled to vote in local elections in Scotland and Wales should be entitled to vote in the referendums. That includes Peers, which I am sure must be a determining factor, and EU citizens resident in Scotland or Wales. It would exclude overseas electors, who are entitled to vote only in parliamentary elections.

That was a principle recognised by Parliament in respect of the 1979 referendums in Scotland and Wales. Much more recently, when the present Opposition was

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then in government, under the Northern Ireland (Entry to Negotiations, etc.) Act 1996 exactly the same principle was adopted; that is, the franchise was extended to the people of Northern Ireland and not the whole of the United Kingdom. We believed then that that was the right decision and propose the same decision on the present occasion.

It is not correct to say that people in other parts of the United Kingdom other than Scotland and Wales will have no voice. That is quite wrong. The final decisions on the principle and the detail of setting up a Scottish parliament and a Welsh assembly reside with this Parliament. It is this Parliament which will make those ultimate decisions, as was plainly established in the interesting debate on the amendment of the noble Lord, Lord Campbell of Croy.

We have put forward a balance between consulting directly with those in Scotland and Wales and, at the same time, ensuring that the interests of the United Kingdom as a whole are properly taken into account in both Houses of this Parliament. I therefore invite the noble Earl to withdraw his amendment.

The Earl of Onslow: Of course I shall withdraw the amendment. I just wanted to bring attention, as harshly as I could, to a fact which I believe passionately to be true; that is, that just over 10 per cent. of the population of the United Kingdom have the right to vote to change the constitution of the other 87 per cent. If they vote for it and it is carried out, Cassandra will be proved right. It will be a tragedy for the United Kingdom.

If I can understand that, other people ought to be able to. The consent of our Parliament has been based on the consent of everyone in the United Kingdom working to the same rules. It is extremely depressing to think that the things that I foresee will come about. With that gloomy thought, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mar and Kellie moved Amendment No. 4:

Page 1, line 6, leave out ("establishment") and insert ("re-establishment").

The noble Earl said: The purpose of Amendments Nos. 4, 55 and several others included in the grouping is to set the Scottish dimension of the referendums Bill and the schedule in its correct context. The amendments are straightforward and the substantive change is no more than to add the two letters "re" hyphenated on to the front of the words "establish" and "establishment". The Bill would therefore refer to the "re-establishment" of a Scottish parliament.

Of the fact that a Scottish parliament existed before May 1707 there can be no doubt. The amendment was trailered by the noble Lord, Lord Mackay of Ardbrecknish, as being trivial. It is not trivial that there was a Parliament in Scotland before May 1707. The minutes of that Parliament are available in the Library and give us a valuable insight into its workings. For example, those concerned today with the exclusion of a class of Members of this Chamber and seeking for a

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precedent need only look at the Scottish Act abolishing the Prelacie dated 22nd July 1689, and thus excluding bishops from the Parliament. That example is not offered as a presbyterian's revenge and I must declare the interest of being an elder of the Kirk.

While I accept that the teaching of Scottish history may have been sidelined until recently--disgracefully, if I may say so--I am unable to accept that the pre-Union Scottish Parliament has never been heard of. It may not necessarily have been the most wonderful example of a Parliament, but it is very much part of Scotland's heritage and an historic symbol of Scotland's continuing sovereignty, as much so as the excellently displayed Honours of Scotland. And, further to that, Edinburgh still enjoys Parliament Square and Parliament House alongside the Royal Mile.

The heroic defence of Scotland's independence and criticism of the incorporated Union by Andrew Fletcher of Saltoun took place in that Scottish Parliament. Fletcher's pamphlet about the effect of Article 22 of the treaty sums up why we are here today involved in legislation to improve the Union. He wrote,

    "The Scots deserve no pity, if they voluntarily surrender their united and separate interests to the Mercy of an united parliament, where the English have so vast a majority ... it is much easier to corrupt 45 Scots in London, than it is to corrupt 300 at Edinburgh; and besides, there will be no occasion of corrupting them, when the Case shall occur of a difference betwixt the South-Britons and the North-Britons; for the Northern will be out-voted, without being corrupted ... This will be the issue of that darling Plea, of being one and not two; it will be turned upon the Scots with a Vengeance; and their 45 Scots Members may dance around to all Eternity, in a trap of their own making".

The complaint about sleaze may not be as serious as it sounds. In an unpaid parliament, "management" was then the accepted way of securing consent. The Earl of Mar's remark that,

    "Contrair to our expectations, the treaty has cairied",

sums up the success he had, as Principal Secretary, in managing the vote during the ratification of the treaty. It is worth noting the disillusion with which the incorporating Union was received, even by the Principal Secretary, who was promoting the treaty. The Earl of Mar wrote to William Carstares, on 9th March 1706, thus:

    "You see that what we are to treat of, is not in our choice, and that we see the inconvenience of treating an incorporating union, only".

Noble Lords will no doubt be aware that I have withdrawn amendments which called for the alteration of "a" to "the" before the words "Scottish Parliament". I did this because I realised that such amendments might cause confusion. They might imply that it is the pre-Union Parliament that is being re-established. Of course, the Parliament being proposed for re-establishment will have very different characteristics from its predecessor.

With regard to my claim at Second Reading that the Parliament of Scotland stands adjourned, it may be that I have misled the House and myself. If that is the case, then I apologise profusely. The minutes of the Parliament of Scotland contain no entries beyond the adjournment on 25th March. The House was adjourned until 22nd April, but it never sat on that date. The form

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of adjournment was the same as the last day of previous Parliaments. An adviser friend put this to an historian acquaintance, curiously in America. The answer came back that the Parliament of Scotland was dissolved by proclamation on 28th April 1707. Ironically, the source quoted was the Mar and Kellie Papers in the National Library of Scotland.

A visit to there produced two documents that can help us. On 21st April Lord Mar records:

    "This day the council met and adjourned the Parliament to the 29 Apryle".

On 28th April, curiously written down as 1706 when he meant 1707--this has no doubt confused historians--Lord Mar recorded this:

    "Yesterday the Parliament was dissolved, and this day, the council and Exchequer sale and her Majesty's letters being read, there were two proclamations published accordingly".

I do not understand why this proclamation was not recorded in the minutes. The minutes were printed and bound in 1824. The Union was in full swing by then, and I cannot see why this proclamation should have been suppressed. I hope that the Minister will be able to accept the historical purpose behind my friendly amendments. I beg to move.

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