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Lord Mackay of Drumadoon: I should like to offer a few words of support to the amendment moved by my noble friend. In the draft orders reference is made to Section 115 of the Representation of the People Act. Under that provision it is an offence to threaten to withdraw the whip from an MP who has voted in a referendum contrary to the policy of his own party or to threaten to withdraw party membership from any individual who voted in a way that was contrary to the policy of the party, because that would amount to a threat to inflict some form of temporal injury, damage, harm or loss upon any such MP or individual.

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My noble friend's amendment takes the matter one stage further, to the issue of campaigning. Without repeating my noble friend's comments, clearly in Wales there is a difference of view between different members of the Labour Party about the approach to be adopted to the referendum. In Scotland, within individual parties there is also a difference of view as to the approach that should be taken. As the noble Lord said, I know more about that because we have been happy to discuss it in public, unlike the private communings which seem to be a speciality of the party that is now in power.

As the noble Lord, Lord Sewel, will be aware, at the conference held by the Scottish Conservative Unionist Party recently, it was recognised that some members may take a contrary view to that of the majority of the party. While the party committed itself to offering support to a broad based referendum campaign against the Government's proposals, it recognised the right of individual members of the party to campaign to a different effect; and I fully expect that they will do so.

I will not venture to investigate whether members of the Scottish Liberal Democratic Party may take different views lest I join the increasing number of noble Lords meriting some form of rebuke from the noble Lord, Lord Mackie. It is well recognised that the Scottish National Party has conducted a serious debate within the party as to whether to support the Government's proposals. The Member for Linlithgow, formerly West Lothian, has demonstrated that there is not unanimity of view in the Scottish Labour Party.

I seriously suggest that, if all parties recognised that there is a room for difference of view within their own party on the issues in the referendum, we would have a healthier debate about the merits or otherwise of the Government's proposal than if we impose some form of party discipline. If party discipline is imposed on individual party members, whether or not they are members of Parliament, and they are precluded from campaigning contrary to the policy of the individual party, members of the press will spend hours, and acres of newspaper print, seeking to expose such rifts within parties. They will try to identify the dissidents and to get them to say something contrary to the party line, and they will then go to the party managers asking what they are going to do about the situation.

If, on the other hand, it is recognised that there should be freedom of speech within parties about important issues to be encapsulated in the White Paper, the debate will be healthier and the people will be better informed. Furthermore, if the Government obtain the votes that they seek in the referendums they may be able to claim that they offer greater legitimacy to the proposals than if the campaign were in some way inhibited. There may be some technical imperfections in the amendment tabled by my noble friend. I do not concede that that is necessarily so, but the spirit of what he is about is commendable and for that reason I support his amendment.

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10 p.m.

Earl Russell: I wonder whether the Minister can help me in his reply. The wording of the amendment is general. If it were to be carried, would its effect be to free members of the Shadow Cabinet to campaign in favour of devolution without fear of dismissal?

Lord Williams of Mostyn: I certainly shall help the noble Earl, but in a moment or two if I may. Perhaps I may remind the noble Lord, Lord Crickhowell, of the replies given by my right honourable friend the Prime Minister in another place on 25th June and again yesterday. He said that no one had been threatened with expulsion from the Labour Party simply for expressing an opinion. Neither had the Government suggested to any council that relations with them would be damaged if their local Member of Parliament campaigned against a Yes vote. Everyone in the House and in another place was free to speak his mind on policy matters. There was no question of any undue influence being exerted on any Member of Parliament.

As I read the law, the noble and learned Lord, Lord Mackay of Drumadoon, correctly referred to the draft orders in council which have been made available to your Lordships and which apply Sections 113 to 115 of the Representation of the People Act 1983. That deals with bribery, treating and undue influence on persons to persuade them to vote or refrain from voting. Therefore, the amendment is not necessary because this is a referendum as opposed to a general or other kind of election. However, it attempts to widen the law to bring about undue influence to cause a person to campaign or to refrain from campaigning.

I have just read the amendment, which states:

    "A person shall be guilty of a corrupt practice if he is guilty of undue influence".
"Undue influence" is thereafter defined. However, most criminal offences that I know of carry penalties, although the noble Lord the Lord Advocate may have a different experience. What is the penalty here? Is it the mark of Cain or the brand of Tebbit? I do not know. In answer to the noble Earl's question, it seems to me that the amendment is so widely drawn that it would cover any dissent of any kind. I am intrigued to see that,

    "Any duress or contrivance or threat of loss or rights or privileges",
to induce someone to campaign or not to campaign will be an offence. Any spiritual injury will be an offence.

I must not tease unduly, but the noble Lord, Lord Crickhowell, asked for my advice and assistance in redrafting the amendment. It is well known that any member of the Bar who gives free legal advice is automatically disbarred and therefore I must not fall into that trap! I recognise that there is a serious purpose behind the amendment. I do not dismiss that serious purpose but simply suggest as gently as I can that this is not the way to bring it about. It is not necessary. In fact, if it were to be extended to general elections, a number of names offer themselves who might at various times have been subject to pressure one way or another, possibly even on European matters.

Lord Tebbit: The noble Lord tempts me. Not only have I been subject to pressure I have exercised

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pressure--but not undue pressure, of course. I was intrigued as the Minister quoted the words of the Prime Minister about the immunity of Labour Members of Parliament in the other place from pressure in relation to which way they vote. But he said nothing about immunity from pressure in relation to which way they might campaign. Will the Minister give an assurance about the mind, the mood, and even the guarantees that the Prime Minister has offered in that respect? After all, the vote is only one vote but the influence of a Member of Parliament when he is campaigning may be worth far more.

Lord Williams of Mostyn: I did say that there is no question of any undue influence being exerted on any Member of Parliament. Any Member of this House or the other place is free to speak his mind on policy matters. I cannot make it plainer than that. I must say that I was very surprised, disappointed--almost shocked--to hear what the noble Lord, Lord Tebbit, said about his past convictions.

Lord Crickhowell: I noted carefully what the Minister said and his quotation of the Prime Minister, who said that there was nothing improper happening at all. I also noted that Mr. Llew Smith insisted that he was not withdrawing his accusations but that, in view of the assurances that he had been given that he was not going to be thrown out of the party he was not going to press them for the time being. So there is a nice stand-off here and long may it continue.

The Minister quoted a number of phrases from my amendment and criticised some of them. I was amused because almost all of the ones that he criticised were the ones that I had not amended at all but were lifted straight out of the Representation of the People Act which already imposes criminal offences. One would have to look further, if the amendment is passed, into what the penalties should be. I have not taken it that far.

We will have to wait over the coming weeks and see whether there is a relaxation; whether Members of another place, those who represent them in the country and the individual members of political parties do feel free and appear free to campaign openly and join in campaigns.

In view of what the Minister said, I intend for the time being to await events and watch very carefully what happens next. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Referendums supplementary]

Lord Mackay of Ardbrecknish moved Amendment No. 43:

Page 2, line 27, leave out subsection (1) and insert--
("(1) The referendums shall be conducted according to the provisions set out in Schedule (Conduct of referendum in Scotland) and Schedule (Conduct of referendum in Wales).").

The noble Lord said: This amendment would have been the subject of a long speech if it had been moved earlier in the day, but I can now be extremely brief. The subject of these two schedules is the two draft orders which accompany the Bill. They are considerable and they advance my argument that we should be dealing with a

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referendums Act if we are to have a number of referendums and not with a piecemeal adaptation of the Representation of the People Act. Although I put my argument in that shorthand way, it in no way diminishes the strength of my feeling that we ought to be doing this properly. However, we are not doing it properly; we are doing it this way.

My second reason--again in shorthand--is that, having listened to the noble Earl, Lord Russell, on a number of occasions talk about the superiority of primary legislation over secondary legislation, when the draft orders are already available we should at least consider putting them into primary legislation.

The third and perhaps most important reason is that if we do not act in that way the House will have to sit well into August. That would be very unkind on those Labour Members of the other place who have school children in Scotland who go back to school quite early in August. I am thinking about them in a way that the Government do not.

The way to overcome the problem, to be tidy and to show that the Opposition do not wish to hinder the passage of the Bill is to incorporate these two draft orders into the schedules in the way I have suggested. I beg to move.

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