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Lord Mackie of Benshie: My Lords, in the Liberal Party we do think for ourselves occasionally. I regard these contradictory amendments as an extraordinary device in keeping with the attitude that the Conservative Front Bench has adopted throughout the debate of discussing everything ad nauseam. This is a Bill to devolve power to a Scottish parliament to look after its own affairs within the context, and with the advantages, of belonging to the United Kingdom. Why on earth we prolong this discussion, with extra contradictory amendments brought forward, I do not know. The Government have stated quite clearly that a referendum put forward by the Scottish parliament would not be legal and proper.

The situation in Quebec was quite clear. The referendum put forward by the Quebecois Party achieved 49 per cent. support. The referendum more or less said, "Do you believe in an independent Quebec which will be rich beyond belief?" Its terms were such that any non-thinking person would vote immediately for it. There is no point in saying that a party such as the SNP would be able to bring forward a referendum. That is made clear in the Bill. I support the Government's attitude. The amendment will do nothing but stir up trouble.

3.30 p.m.

Lord Renton: My Lords, my noble and learned friend Lord Mackay of Drumadoon has been candid about these two amendments. I shall try to be as loyal and as tactful as possible in my comments on this situation.

The most important provision in this Bill is to be found in paragraph 1(b) of Schedule 5:

    (b) the Union of the Kingdoms of Scotland and England".

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Clearly, Amendment No. 207 is in conflict with that concept. Amendment No. 208 can be said to be consistent with it but, I believe, is unnecessary bearing in mind the clear, emphatic wording of paragraph 1(b).

I therefore assume, in favour of my noble friends on the Front Bench, that these two amendments have been tabled in order that noble Lords in every part of your Lordships' House can express their views on the matter but come to the conclusion that the union of the United Kingdom must be upheld.

Baroness Carnegy of Lour: My Lords, my noble friend, who is very wise on these matters, has expressed his view. My noble neighbour, Lord Mackie of Benshie, has expressed a similar view in different terms. With great respect to the noble Lords, they are forgetting how it will be determined whether something is or is not competent in this parliament. They are assuming that it will be like Westminster. It will not be.

The Scottish National Party is intending, we understand, to use the Holyrood parliament, not the Westminster Parliament, as the locus for continuing to attempt to persuade the people of Scotland that they will do best if they leave the United Kingdom. The locus for this discussion will be the Holyrood parliament. We are not even sure whether the Scottish National Party will be putting up any candidates for Westminster at the next general election. I do not think it has decided that as yet.

It is absolutely essential that the Bill should be crystal clear on this matter. If it is not crystal clear, it will be possible for the Scottish National Party majority--even a majority made up with other members of the Scottish parliament--to decide to legislate for a referendum. Whether or not that is within its competence under the terms of the Bill as it stands, it becomes a devolution issue. In the process there will be a long argument--it may last several months or perhaps a year--as to whether it will be competent to do that. During that time the Scottish National Party will have a marvellous opportunity to stir up discontent: to demonstrate to the people of Scotland that the Holyrood parliament is not able to put forward their interests in deciding the future of Scotland.

This is the time when the Government should make it clear, in the kind of words in Amendment No. 208, that that is not within the parliament's competence. Then the matter cannot proceed. It is really important. To say amiably that because the constitution is reserved to Westminster this will not occur, is simply not realistic. We are not facing up to the facts. People will not change the way in which they behave because of the new parliament. They will continue to behave in a political way. I can foresee that that could happen.

Lord Desai: My Lords, I believe that the Bill is entirely clear. There is no ambiguity about where power lies. At Second Reading, the noble and learned Lord, Lord Hope of Craighead, said clearly that, while there are no limitations on the powers of the Westminster Parliament, the Scottish parliament is limited by this Bill which will become an Act. Paragraph 1(b) of Schedule 5 makes absolutely clear where the powers lie, as the noble Lord, Lord Renton, pointed out.

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Whatever is written down, the Scottish National Party will behave politically whether or not we pass the amendment. If it wants to behave politically, then passing or not passing the amendment is entirely beside the point. There is no ambiguity. The Scotland Act will be clear as to where the power lies and any Bill to hold such a referendum will be ultra vires.

Lord Sewel: My Lords, I had hoped that we had succeeded in Committee in clarifying that, under the Bill as drafted, the Scottish parliament will not be able to legislate to hold a referendum on independence because the union of the Kingdoms is a reserved matter. It is not only the constitution that is reserved, as the noble Baroness, Lady Carnegy of Lour, observed; it is absolutely explicit in paragraph 1(b) of Schedule 5 that,

    "the Union of the Kingdoms of Scotland and England ",
is reserved, as the noble Lord, Lord Renton reminded us.

So that is it. I shall try once more to explain the position and apologise to the House that what I am about to say will unavoidably be somewhat repetitious. An explicit reference on the lines proposed by Amendment No. 208 is simply not needed. In determining what relates to a reserved matter, Clause 28, as amended in Committee, indicates that one must look at the purpose of what is being done--and that has been accepted by the noble and learned Lord, Lord Mackay of Drumadoon.

If the parliament passed an Act to hold a referendum about whether the Union should continue, it would clearly be legislating in relation to the reserved matter of the union. It is as crystal clear as that. Any such Act would be about the continuation of the union; it would therefore be beyond the competence of the parliament and would not be law. The position is quite clear on this point. Amendment No. 208 is absolutely unnecessary.

Lord Mackay of Ardbrecknish: My Lords, I thank the noble Lord for giving way. Would it be competent for the parliament to discuss the question of the independence of Scotland from the Union?

Lord Sewel: My Lords, it would be possible to discuss that. That is not dealt with in the amendment tabled by the noble and learned Lord, Lord Mackay of Drumadoon. The amendment refers to passing a Bill and therefore limits itself to legislative competence. The legislative competence is already taken up in the terms of Schedule 5 and Clause 28. We are on the narrow point of legislative competence and not whether the parliament can or should discuss the matter of independence. That is a totally different matter and beyond the scope of the amendment.

While I appreciate the helpful way in which the noble and learned Lord has explained why he has tabled what are, as he recognised, two contradictory amendments, I do not think there is any means by which we can get away from the fact that we are dealing with an issue that is clear in the Bill. There is absolutely no need for this

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further attempt allegedly to make it clear. I should have thought that the great strength of the Bill is the very simple phrase in Schedule 5 dealing with the reserved matters:

    "the Union of the Kingdoms of Scotland and England".
There can be nothing more explicit or clearer than that.

The noble and learned Lord referred to the powers of the executive. But the powers of the executive are linked to the legislative competence of the parliament. It would not be within the competence of the executive to incur expenditure on a referendum on independence; nor would it be within the legislative competence of the parliament to confer such a power on it. So I am still at a loss to understand the point on Report as I was at a loss to understand the point in Committee. I hope that the noble and learned Lord will be able to withdraw the amendment.

Lord Mackay of Drumadoon: My Lords, I am sorry if the Minister is at a loss because the fault is entirely mine. I shall endeavour to explain a little more fully why I have this concern, and in doing so, I shall, like my noble friend Lord Renton, be as loyal and tactful as I can. However, I regret to say that on this occasion I part company from him as to whether the Bill is quite as clear as he suggests that it is. It is of course no surprise to have differing views on these matters from the Liberal Democrat Benches. I am sure that the comment of the noble Lord, Lord Mackie, was made in jest, and I take it in that spirit.

The crux of the matter is the new provision of Clause 28(3), which was introduced in Committee. It states:

    "For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4)"--
that does not concern us--

    "by reference to the purpose of the provision".
If it is competent, as the Minister has accepted, for the Scottish parliament to debate the question of independence, one then assumes that it would be competent for it to discuss the question in a committee to which people came to give evidence, as covered by the provision in Clause 23.

If it is competent for the parliament to discuss the matter, would it not be possible to pass an Act of the Scottish parliament along the lines, "Because we are going to discuss the question of independence, we wish to know whether the people of Scotland know about it in order to inform our discussions. We fully accept that we do not have the competence to pass an Act which would bring about independence. We fully accept that that is a reserved matter under sub-paragraph (1)(b) of Schedule 5 to the Bill. But in so far as we are entitled to discuss the matter, we wish to be seized with knowledge of what the Scottish people think about the matter".

That seems to be the reasoning which lay behind Strathclyde Regional Council's decision to hold its referendum because there can be no doubt that the

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power to regulate the water supply industry and to decide whether or not to privatise it lay with the United Kingdom Government and indeed with this Parliament.

Both today and on a previous occasion the Minister has not responded to my two well-known examples. He may be correct when he says that he does not fully understand the concern I have raised but clearly that concern is shared by other Members of the House. Therefore, while I do not intend to press Amendment No. 207 to a vote, I shall seek to take the opinion of the House on Amendment No. 208. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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