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Lord Mackay of Drumadoon: I rise to support my noble friend Lord Renton. We have already touched on the reasons why the Government consider that Order in Council procedure is appropriate for amending Schedule 5. For different reasons the noble Viscount, Lord Thurso, and I have reservations about that. It would be prudent if we all reflected on that over the Recess. Therefore, I do not intend to say any more tonight. However, I would not wish Clause 29 to stand part of the Bill without Ministers being aware that on these Benches there is concern about the terms of the schedule being amended, one way or another, by the Order in Council procedure.

Viscount Thurso: As I indicated earlier, I am not sure where to intervene in relation to Clause 29. I have already said most of what I want to say. However, I very much agree with the general sentiments put forward by the noble Lord, Lord Renton, about the great danger in using these mechanisms to achieve these ends. This is a large point of principle for us. We want to see clarity between the parliaments. We want changes to the legislation to be made by primary legislation after proper discussion and not by the back-door. We do not believe that it is an issue of sovereignty. Having said that, the noble Lord, Lord Sewel, said that he was interested in clarifying the functions. In that regard, if this can be so worded as to deal with functions rather than changes to the legislation, I would have some sympathy with him.

The noble Lord also said, if I understood him correctly, that this would be put forward by a UK Minister subject to affirmative resolution at both Westminster and at Holyrood. When he comes to respond, perhaps he will confirm that that means that if Holyrood chose not to so resolve the order would lapse.

Lord Sewel: I wonder whether I may deal with that point straight away. As the Bill stands, Schedules 4 and 5 can be modified by Her Majesty by Order in Council. As I said, that would be subject to the affirmative procedure both at Holyrood and at Westminster. I make that absolutely clear. One would need both Holyrood and Westminster to agree to any switching around in that regard.

I spoke about this earlier but I should like to re-emphasise that, without that mechanism, not only is a great deal of flexibility lost but it would deny the Scottish parliament the opportunity to debate and approve any changes to the list of reserved matters. If one did not have the affirmative procedure in both parliaments, one would fall back, as the noble Viscount recognised, on primary legislation in this Parliament. If one did that, it would mean that the Scottish parliament would not have the opportunity to make a direct contribution on which matters would be reserved and which matters would be devolved subsequent to the Bill being enacted. This is a quite deliberately constructed

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procedure to make sure that arrangements can be agreed between the two parliaments on the allocation of subjects between reserved and devolved. Any other route would abstract the Scottish parliament from that procedure. Rather than the provision somehow weakening the contribution and locus of the Scottish parliament, it is actually strengthening it.

Lord Steel of Aikwood: Can the Minister say where exactly the Bill tells us that this will be subject to affirmative resolution in the Scottish parliament as well as in the two Houses here?

Lord Sewel: I am happy to make that precise point by writing to the noble Lord. But I have to tell the noble Lord that I am telling him that it would be subject to that procedure.

Clause 29, as amended, agreed to.

Schedule 5 [Reserved matters]:

Lord Rowallan moved Amendment No. 174:

Page 64, line 8, at end insert ("including the holding of referendums on questions relating to the maintenance of that Union,").

The noble Lord said: I shall speak only to Amendment No. 174. My noble and learned friend Lord Mackay of Drumadoon will speak to the other amendments in the group.

Schedule 5 concerns the reserved matters. Paragraph 1 of Schedule 5 sets out five of them. By far the most important, as far as I am concerned, is set out in subparagraph (b),

    "the Union of the Kingdoms of Scotland and England".

I believe that all parts of the House will agree that that is very important. The whole idea of this Bill is to make quite certain that the Union remains.

Earlier I tried to include a pre-legislative referendum on whether there should be an independent vote at some stage and I was advised that the Government did not like that. This is a classic position for it to be included; namely, after

    "the Union of the Kingdoms Scotland and England, including the holding of referendums on questions relating to the maintenance of that Union".

Surely, it would be ultra vires to have a referendum at all to discuss it. Therefore, I would like to see this provision in this place. I beg to move.

11.30 p.m.

Lord Mackie of Benshie: We have a certain amount of sympathy with the object, but we do not believe that this is the way to go about it. The noble Lord is of course terrified that the SNP will sweep all before it and before we know where we are, it will be holding a referendum on this point. I do not believe that that is going to happen. I would take bets that there is going to be no overwhelming victory for the SNP when the election takes place.

There is a great deal of good sense to be put to the Scottish people. We have to concentrate on the job of curing the ills of Scotland and promoting its virtues. The ills are many, including the health of the people of

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Scotland, which is about the worst in Europe. We have to do something about that. There is real work to be done. We have to promote the virtues of enterprise which are shown so often in other parts of the world. We have to promote them at home in relation to agriculture, fishing and marketing. There is a host of matters that the Scottish people want us to pursue.

We should leave the question to the Scottish parliament and go flat out to persuade the people of Scotland to elect sensible people who will not waste time on referendums of this sort.

There are snags. If the Scottish people were foolish enough to elect people who did, it appears to me that the question put is very important. It would be quite wrong to leave that to the Scottish parliament. I saw a question put on a referendum in Quebec. It more or less said, "If you want to go to heaven, vote for a separate Quebec". These questions need to be addressed, but on the whole there is no question but that this matter should be left to the Scottish people. We have a responsibility to see that good people get into the parliament.

Lord Mackay of Drumadoon: The differing views expressed by my noble friend Lord Rowallan and the noble Lord, Lord Mackie, illustrate the importance of the matter being clarified at this stage. The purpose of the three amendments which I have tabled, which are Amendments Nos. 176, 177 and 259A, is two-fold. The first two amendments endeavour to place on the face of the Bill in unequivocal terms this Parliament ruling in effect whether or not it would be competent for a Scottish parliament,

    "to enact an Act of the Scottish Parliament authorising the Scottish Executive to hold a poll in Scotland for the purposes of ascertaining the views of those polled as to whether or not Scotland should become independent of the United Kingdom".

Amendment No. 259A has a different but equally important purpose, which is to set out on the face of the Bill that the Scottish executive can hold polls or referendums only when it is authorised to do so by an Act of the Scottish parliament and that any such Act must specify, among other things, certain key points; namely,

    "(a) when, and in which area, a poll is to be held, (b) who shall be eligible to vote in any poll, and (c) the wording of any questions or propositions to be put to those polled".

In another place, the issue of the competency of holding a referendum on whether Scotland should remain part of the UK was raised on more than one occasion. In dealing with that issue on 12th May at col. 256 of the Official Report, in response to the specific question put to him by my right honourable friend Mr. Ancram,

    "Does that mean that a referendum on the Union also will be a reserved matter and not available to the Scottish Parliament?"

the Secretary of State replied in these terms:

    "It is clear that constitutional change--the political bones of the parliamentary system and any alteration to that system--is a reserved matter. That would obviously include any change or any preparations for change ...

    If one assumes that that is a way of changing the constitution, no, it is not in the power of the Scottish Parliament to change the constitutional arrangements ...

    A referendum that purported to pave the way for something that was ultra vires is itself ultra vires".

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Those views were echoed by the noble and learned Lord the Lord Advocate at Second Reading when, on 18th June, at col. 1787 of the Official Report, he said:

    "The present Government have no plans for such a referendum, nor can the Scottish parliament legislate for such a referendum".

In the other devolution Bills going through Parliament at the moment the holding of polls is addressed. In Clause 36 of the Government of Wales Bill, it is provided that the assembly may hold a poll in an area consisting of Wales or any part of Wales for the purposes of ascertaining the views of those polled about whether or how any of the assembly's functions, other than those set out in Clause 33, should be exercised. The clause goes on to set out in terms similar to those in my amendment, Amendment No. 259A, the need for the assembly to determine certain key issues, including whether a poll should be held and, if so, where and when. In Part I, Clause 1 of the Northern Ireland Bill, there is again provision for the holding of a poll, reinforced by certain details set out in Schedule 1.

No similar provisions are to be found in this Bill. I believe that there should be such provisions. It is inevitable that the issue of the holding of referendums or polls will arise. Indeed, it already has. It may be possible to speculate that to some extent the attitude adopted by the Secretary of State for Scotland and his colleagues in casting doubt on the competency of a referendum on independence has played into the hands of the SNP and is one of a number of reasons why it is doing well in the polls at the moment. Time will tell whether that will prove permanent, but it is certainly possible for the SNP to say that this refusal to give the Scottish parliament the power to hold a poll is yet another example of a Labour Government being run by London and not allowing the Scottish people to be trusted to take decisions affecting their own future.

Notwithstanding the argument explained by the Secretary of State in another place and repeated by the Lord Advocate at Second Reading, I believe that it would be perfectly possible to construct a respectable legal argument that it was within the legislative competence of the Scottish parliament to pass an Act of Parliament authorising the executive to hold a referendum on the issue of whether those who voted in Scotland wished Scotland to be separate from the UK. It would be perfectly possible to construct an argument that it would assist members of the Scottish parliament in the discharge of their devolved legislative and executive duties to be aware of the thinking of Scottish people on that very important issue.

Many noble Lords will be aware that Strathclyde Regional Council recently felt it appropriate to hold a poll on the question of whether water should be privatised in Scotland. Taking a slightly different tack, other local authorities believed that it was appropriate to contribute to the work of the Scottish Constitutional Convention by making funds available to cover the costs that it incurred. When a decision to make such a payment by Grampian Regional Council was challenged by the Commission for Local Authority Accounts in Scotland it fell to the noble and learned Lord the Lord Advocate in a different guise to defend that council's decision. It was held by the court that it was well within the power of the local authority to support the work of the convention on the basis that in

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some way it might be in the interests of those who lived in the local authority area to have such work supported. Clearly, there was a different statutory framework in that situation, but I do not shrink from the suggestion that it would be perfectly possible for an Act of Parliament to be passed by the Scottish parliament authorising such a poll and for that to end up in the courts.

Throughout the debates on this Bill I have sought to make clear my belief that the courts should be involved in these matters as infrequently as possible. For that reason I have tabled Amendments Nos. 176 and 177 which are contradictory. I anticipate that when Amendment No. 176 is called I shall be told that if it is accepted by the Committee I shall be unable to move Amendment No. 177. My objective is to clarify the position. I have no wish to indicate whether it would be desirable to have such a referendum at an early date; there are arguments both ways. But I remain convinced that the law on this matter should be clarified. If it is not then the festering issue as to whether the Scottish parliament is competent to hold such a referendum will rumble on. In supporting my noble friend Lord Rowallan in his amendment, I urge the Government to indicate clearly whether it is their policy to accept Amendment No. 176 or Amendment No. 177.

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