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Lord Renton: Before my noble friend replies, and the noble and learned Lord, the Lord Advocate sits down, I invite his attention to Schedule 2, which he has already mentioned. On page 60 paragraph 6(1) of the schedule states,

and I need not go any further.

If we accept that it is right to put the provision there, surely it becomes unnecessary to include it also in Clause 1(4). What is the point of a phrase being repeated twice in the same Bill?

Lord Hardie: Phrases are often repeated in the same Bill for different purposes, and that is the position here. In Schedule 2 one is dealing with the body corporate which is going to act on behalf of the parliament. Schedule 2, paragraph 6 relates to the proceedings of the corporation. So the validity of the proceedings of the

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corporation cannot be challenged because one of its five members is not available--that is, the presiding officer or one of the four elected members.

Lord Renton: The heading to Schedule 2 is, "Scottish Parliamentary Corporate Body". Is that not the parliament itself?

Lord Hardie: No. I have obviously been unclear in my explanation. Clause 20 sets up the Scottish Parliamentary Corporate Body. Members of the Committee will find that on pages 9 and 10 of the Bill. Clause 20(1) states that,

    "There shall be a body corporate to be known as 'The Scottish Parliamentary Corporate Body'".
The members of that body in subsection (2) are,

    "(a) the Presiding Officer, and (b) four members of the Parliament appointed in accordance with standing orders".
If Members of the Committee read on to subsection (9), Schedule 2 is applied. Schedule 2 is related to that corporate body. We are talking about a vacancy which does not invalidate the actions of the corporate body, whereas Clause 1(4) relates to a vacancy in the parliament, which does not invalidate the actions of the parliament.

Lord Renton: I am grateful to the noble and learned Lord. He has got that point absolutely right, but it does not make Clause 1(4) in the least necessary.

Lord Simon of Glaisdale: In the end, the noble and learned Lord's case for Clause 1(4) was that it is there to prevent an argument arising. Does he really think that if the argument arose in England any court would possibly hold that a vacancy in the Scottish parliament invalidated the proceedings? Nor can I believe, unless the noble and learned Lord assures me to the contrary, that if the same question arose in Scotland any Scottish court could possibly hold that the vacancy impugned the validity of the proceedings of the parliament and that a by-election, for example, would render the parliament impotent.

If the aim is to obviate an argument, there is almost no limit to what one can do. Every silly and futile argument, of which that is one, would have to be anticipated--and the statute book would continue to get more and more inflated. In the end, it comes down to this simple point: could any such argument possibly be maintained in any sensible court? The noble and learned Lord said that this provision has appeared in previous statutes. Ever since the earliest statutes, has any such argument even been put forward, much less been successful?

Lord Hardie: I am unable to answer the noble and learned Lord's last question as to whether such an

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argument has ever been advanced in any case, just as my noble and learned friend the Solicitor-General was unable to answer a similar question--

Lord Simon of Glaisdale: Perhaps I may put it more accurately. Have the Government any record of such an argument being advanced, still less of that argument being successful?

Lord Hardie: The answer is the same. I am unable to give the noble and learned Lord an answer because I have no briefing to that effect. However, I shall of course undertake, as did my noble and learned friend the Solicitor-General, to write to the noble and learned Lord on this matter once the necessary research has been undertaken.

On the question of the risk of such an argument being upheld in the courts either in Scotland or in England, with respect to the noble and learned Lord, that is not the Government's initial concern. The Government are concerned lest a challenge be taken which would unnecessarily take up time and cause unnecessary anxiety. This provision which, as I have already said, is consistent with provisions in many previous statutes over the years puts the matter beyond any doubt.

Lord Simon of Glaisdale: Perhaps I may ask the noble and learned Lord whether there is any record of anybody arguing that the House of Commons' proceedings are a nullity because a by-election is pending.

Lord Hardie: I am not aware of any such case but, in my respectful submission, that is not the point. I formally invite the noble and learned Lord, Lord Mackay of Drumadoon, to withdraw his amendment.

Lord Mackie of Benshie: If subsection (4) would stop this kind of legal argument taking place in the Scottish parliament, let us keep it in!

Lord Mackay of Drumadoon: I hope that during the dinner hour the noble Lord, Lord Steel of Aikwood, will seek to convince his noble friend that there are occasions for agreeing with "the Mackay twins", as he happily refers to us!

This has been an interesting trailer to some important discussions that we shall have later in Committee about the relationship between the courts of the land-- I include not only the Scottish courts, but also the courts in England, Wales and Northern Ireland--and the legislation emanating from the Scottish parliament.

I am grateful to the noble and learned Lord the Lord Advocate for seeking to explain the Government's position in response to this amendment. I fully accept what the noble and learned Lord said about the legal nature of the Scottish parliament being different from that of the Welsh assembly. It is clear that it is not a "body corporate" as that term is used both in this Bill and in the Government of Wales Bill. I also agree that if this matter fell to be considered in the courts of Scotland, the law of Scotland would be applied. Whether there would be any difference between that law

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and the law of England or the law that applies in Northern Ireland may be open to question. Undoubtedly, however, the law of Scotland would apply.

On corporations sole, I am not in a position to offer any further assistance other than to say that I understand that it is not a type of fish that my noble friend Lord Mackay of Ardbrecknish will be hoping to chase tomorrow!

When the noble and learned Lord, Lord Simon of Glaisdale, referred to this point on the Government of Wales Bill, he made it clear that this is not an issue on which it would be appropriate to seek to divide the House. However, he said that he hoped that the Government would reflect further on the discussions that had taken place. Echoing those words, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 4 and 5 not moved.]

Clause 1 agreed to.

Lord Rowallan moved Amendment No. 6:

After Clause 1, insert the following new clause--

Referendum on Scottish independence

(".--(1) The Parliament shall not meet until a referendum has been held in Scotland on the single question of whether Scotland should be an independent state rather than continuing to be a part of the United Kingdom.
(2) The referendum referred to in subsection (1) shall be held on such day as Her Majesty may, by Order in Council, appoint.
(3) The Secretary of State shall by order make such further provisions for the conduct of the referendum referred to in subsection (1) as he thinks appropriate.
The power to make an order under this subsection shall be exercised by statutory instrument and any such statutory instrument shall be laid in draft before Parliament for approval by resolution of each House.
(4) Regardless of the outcome of the referendum referred to in subsection (1), the Parliament shall not approve any resolution or otherwise make any decision to hold, or to call upon Her Majesty's Government to hold, any further such referendum for a period of ten years beginning with the day on which the referendum referred to in subsection (1) is held.").

The noble Lord said: I consider this to be a very important issue and it is one that I raised when we discussed the initial Scottish referendum. It relates to the question of independence. I feel strongly that we should have a referendum on independence because the parliament must work. I apologise; I know that I have already said this today, but I shall say it 100 times before we finish this Bill. We must give the Scottish parliament some strength. It would be a very bad thing if the parliament were to have hanging over its head the sword of Damocles of the SNP wanting independence if it gains control.

There has been a great deal of media interest already in this amendment. Scot FM has already been on to me, as have several newspapers. We must discuss this issue fully. I feel strongly that SNP voters do not necessarily want independence. The majority of SNP voters are young, nationalistic (with a lower case "n") and very proud of being Scots. So am I--I may talk with an English accent, but I am a Scot through and through and am very proud of that. Tactical voting has been used to

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a tremendous extent in Scotland and, very undemocratically and very sadly in my opinion, it has cleared the Scottish Conservative Party out of Scotland. I do not think that those voters will appreciate the Government's stance yesterday on student fees. That was playing into the hands of the nationalists. We must be very careful about that.

On Monday 6th June, the Glasgow Herald had the huge headline,

    "SNP set to be largest party at Holyrood".
On the following day, Tuesday, it produced a map which was SNP yellow all over. We know that opinion polls are dodgy things, especially when we are close to an election. However, according to the Glasgow Herald, once all the voting has taken place in all the areas and regions, the SNP will have 56 seats; the Labour Party will have 46; the Liberal Democrats will have 15 and the Conservatives will have 12 seats. If that is true, it means that the SNP will have the greatest number of seats.

The SNP has always declared that it will use the Scottish parliament to try to gain independence. That is its raison d'etre. It has been trying to make Scotland an independent country. We must not be frightened of the SNP; we must tackle it head on. Many people have said to me that to hold an independence referendum is playing into its hands. I do not believe so. It would be a great pity if this opportunity were not taken. It is also an enormous pity that there is not a Scottish nationalist Peer in this Chamber who can stand up and put that case. Instead of considering a knighthood for Sean Connery perhaps he should have been offered an earldom so that he could sit here prognosticating on the matter.

But the people of Scotland need to be shown how the parliament can work within the United Kingdom. They voted for a particular parliament--a Scottish parliament. However, only 60 per cent. of Scots voted, which means that 40 per cent. did not vote for one reason or another. Of those who voted, a huge majority, 74 per cent., voted for the parliament. However, of the total Scottish population only 45 per cent. voted for a parliament and in Britain only 4 per cent. did so. Therefore, 96 per cent. of the British public did not want a Scottish parliament. We must make this parliament work for the 74 per cent. who bothered to leave their houses and vote for it. If in a referendum there is no call for independence that vote will give the parliament the impetus to succeed. It will remove the spectre of independence for at least 10 years. The parliament can then bed in and prove itself and show the Scottish people that it can work and do everything that the Government and I want it to do. That can be done from within the United Kingdom. If I am wrong and the Scottish people want independence we will still be sorting out what type of parliament should be established, but the arrangements for the reserved powers will be a complete waste of time because they will not be necessary. We cannot put our heads in the sand and forget about it. The spectre of nationalism will not go away; it is growing. We must make quite certain that the Scottish parliament can work. I beg to move.

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7.30 p.m.

The Earl of Mar and Kellie: The noble Lord, Lord Rowallan, has tabled an amendment that will strike a chord with many citizens of the kingdom of Scotland. He has grasped the issue of the moment; the question of self-government for Scotland. The referendum held on 11th September last year established that Scotland was a political entity. The widely drawn question about the establishment of the Scottish parliament asked about self-government and did not refer to the limited self-government proposed in the White Paper and now in the Bill. For many, the problem to be addressed is: why can the people of Scotland be overruled by a majority from elsewhere who may have different objectives? Clearly, this is the Westminster question. The Bill answers that question in part for Scotland because Scottish domestic legislation is to be devolved, but the very significant reserved powers keep the Westminster question on the table.

To be in a union must be purposeful. That is true of the British Union, especially if it is not a de facto annexation. Scots may well have to decide between Britain and Europe. The Union of the Crowns in 1603 brought chaos to Scotland's European trading pattern and cultural exchange. Being ensnared in Great Britain has made very difficult the re-establishment of those links with Europe. The reaction of England to Europe fills me with gloom. Scotland is supposed to be a European country.

There is a demographic issue to be resolved; the question of being Scottish or British. The combined sense of Britishness and Scottishness is strongest among those with life experience of the Second World War. Those born subsequently may have increasingly less strong identification with that sense. What is sought generally is political rather than national autonomy. There is a paradoxical demand to be Scottish politically and to retain British links, especially as we all have friends and relations either side of the Border, not to mention trading patterns.

It has been said that Scotland should put up with the pain of disaggregation and any interim budget reductions as a long-term investment that will be worth it. The demand for political autonomy can be non-seccesionist. It ends only the parliamentary union. Such a position gives the Crown a linchpin role as the cement in a social, linguistic and economic union. This amendment allows the people of Scotland to test their real desire for political autonomy both now and in 10 years' time, if necessary building on the useful experience of the devolution project. I support the amendment.

7.45 p.m.

Lord Gordon of Strathblane: The Committee can rest assured that any intervention by me at this hour will be extremely brief. Having had the great pleasure of sharing an aeroplane journey from Scotland with the noble Lord, Lord Rowallan, I am well aware of the sentiments behind his amendment and have a great deal of sympathy for them. In particular, I should very much like to see the Scottish parliament placing a hiatus

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between any referendums that are held on the issue of independence. We do not want to return to this business every year, as tends to happen in Quebec. Where I disagree with the noble Lord is that I believe that this is another issue where the initiative must come from the Scottish parliament. If it comes from Westminster it runs the risk of being misinterpreted. I do not want to become obsessed by appearances, but there is a very great danger that nationalists may portray the amendment of the noble Lord as one that places an unnecessary hurdle between Scots and their ultimate desire for independence. I can see the argument that will be made: "Vote now or you will not have another chance for 10 years". That will be used as a positive argument for independence.

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