HC Deb 10 February 1977 vol 925 cc1794-824

The Scotland and Wales Act 1977 provides for an elected Welsh Assembly. Wales would remain part of the United Kingdom. The new Assembly would exercise substantial powers devolved by Parliament. These provisions will however come into force only if approved in this referendum in Wales.


Put a cross (X) in the appropriate box.



Mr. John Smith

I beg to move the new clause and the new schedule—

Mr. Higgins

On a point of order, Sir Stephen. Did I understand the Minister to say that he was moving both the clause and the schedule?

The Temporary Chairman

The Minister is moving New Clause 40, with which we are discussing Amendment No. 679.

Mr. Higgins

Then he is not moving both. That is what he said.

The Temporary Chairman

This is a technical point. The Minister is in fact moving the new clause with which we are discussing the amendment.

Mr. John Smith

I beg to move, That the clause be read a Second time.

I should like to begin by recalling briefly the background to these new provisions.

Constitutionally, there is no doubt that Parliament has full power to pass a Bill such as our present one without reference to any outside source; and against the background of our plain commitments, put before the electors at a General Election, and also of the long period of careful and open consultation, the Government would have been quite ready, and seen ourselves as quite entitled, to go ahead in the orthodox way.

Nevertheless, it was quite evident, particularly from the number and range of signatories to the Second Reading motion of my hon. Friend the Member for Pontypool (Mr. Abse) that there was notably wide support in the House, from both sides, for the view that the present enterprise was of a very special character; and that accordingly it merited a very special test of the popular will.

I was pleased to note that the right hon. Member for Cambridgeshire (Mr. Pym) was reported in the Scotsman as welcoming the referendum in principle. There is quite wide support, not just from my hon. Friends, but from the official Opposition, for the principle of a referendum in connection with the Bill.

Now I share, as I suspect most members of the House do, a concern that referendums should not become a routine feature of the United Kingdom scene. I am well aware of the threat that their habitual use could pose to the system of representative government, which we all value. For example, I certainly would not accept for one moment any proposition that every change which could be classified as constitutional is apt for a referendum. But the Government recognised the force of the pro-referendum argument in these special circumstances—that is, in relation to a constitutional change of quite exceptional scope and importance about which sincere and deeply-held views conflict, along lines moreover which cut across normal party-political structures.

Mr. Tim Renton (Mid-Sussex)

Will the Minister give way?

Mr. Smith

I hope that hon. Members will allow me to complete at least one sentence in my speech before interrupting.

The Temporary Chairman

Order. We cannot have two hon. Members on their feet at the same time.

Mr. Smith

We have therefore thought it right, as I announced on the last day of the Second Reading debate, to accept this widespread wish. We now bring forward the detailed legislative provisions by which we propose that Parliament should give effect to it.

Mr. Tim Renton

I thank the Minister for giving way. He referred to this as an issue of unusual and exceptional constitutional importance. May I remind him of an occasion when the hon. Member for the Wrekin (Mr. Fowler) was Minister of State, Privy Council Office and replied to a motion that I had moved on 22nd November 1974 on the issue of the referendum for EEC membership and said: It is not just that it is more important; it is of a different order. There is, and there can be, no issue that is on all fours with it. That is why we say that this issue"— that was the issue of EEC membership— is the sole exception, and there can be no other exception, to the principle that we normally operate through parliamentary democracy". —[Official Report, 22nd November 1974; Vol. 881, c. 1743.] How many more sole exceptions are we to have?

Mr. Smith

I have enough to do being responsible for what I say without being responsible for what other hon. Members say about other Bills in different circumstances. The hon. Gentleman asked me what other exceptions there would be to the general rule, and I have not yet answered—

Mr. Tim Renton

On a point of order, Sir Stephen. As I understand it, the Minister of State is now denying that he has any responsibility for what another Minister said from that Front Bench—

The Temporary Chairman

Order. That is not a point of order. The hon. Gentleman has been here long enough to know that, and I object to hon. Members raising phoney points of order and thereby ruining the debate.

Mr Smith

I noticed that the hon. Member for Mid-Sussex (Mr. Renton) was not even prepared to wait until his question had been answered before rising on that point of order, Sir Stephen. He asked what other exceptions there would be. We are making the proposal for this Bill, and it is on that basis that it must be justified to Parliament. I hope that the hon. Member will bear in mind the widespread support which exists for the principle of the referendum, in all parts of the House especially since it was endorsed by the official Opposition recently when they welcomed the Government's announcement of a referendum.

The provisions that we propose take the form of one new clause and one new schedule. The clause deals essentially with the effect of the referendum results upon the implementation of the Act for Scotland and for Wales. That effect, as proposed, is direct and straightforward. If either country says "No", under subsection (3) the Act's provisions in respect of that country cannot be brought into force. The results are in that sense mandatory, not advisory.

Mr. George Cunningham

Does my hon. Friend agree that the exact conditions under which the provisions whether the Act can be brought into force could be tested in court under the clause that he is now moving?

Mr. Smith

My hon. Friend will notice the provision in Amendment No. 679, in the schedule which we shall be discussing with the amendments to it, under which legal proceedings are excluded in the same way as they were in the EEC referendum Bill.

As I was saying, if either country says "No", as the clause stands, the provisions in respect of that country cannot be brought into force and the Government are given no discretion in the matter. If either country says "Yes" the Government are under a clear duty to bring forward commencement orders to put the provisions for that country into effect.

Mr. Peter Rees

Would the Minister of State amplify that? Is he saying that the Government are under a direct duty imposed by this Act, or is there an element of ministerial discretion?

Mr. Smith

The hon. and learned Gentleman has no doubt read the new clause, since he is arguing about whether it is an order. He will see that in subsection (3) it is clear that if the decision is "Yes" the Government must make the orders under Clause 114.

Mr. Pym

Surely the Minister of State will agree that Clause 114 (1) says that the Act will come into operation on such day as the Secretary of State may by order appoint". Is that not different from what he has just said?

Mr. Smith

I am relying on the provisions of New Clause 40. If the right hon. Gentleman reads that he will see that in subsection (3)—

Hon. Members


Mr. Smith

I should like the Committee to allow me to bring out some more points.

Mr. George Cunningham

When I intervened a moment ago, my hon. Friend suggested that no court could call in question the use of the Order in Council provision under the new clause. If he is referring to the new schedule—I apologise if I misunderstood him—paragraph 14, which is headed "Exclusion of legal proceedings", relates to the principles involved in the referendum. No court would be able to say that, although the result of the election was declared to be x for "Yes" and y for "No", the answer was really the other way round.

In the new clause there is provision for an Order in Council to be made in certain events. There are words in subsection (3) of the new clause which could be taken to court. There does not seem to be anything either in the new clause or in the new schedule which would exclude their being taken to court. Is there anything in the Bill that would prevent a submission being made to a court questioning the decision of the Government whether to implement by Order in Council the powers in the new clause?

Mr. Smith

No, there is no such provision in the Bill.

Mr. George Cunningham

Then it can go to court?

Mr. Smith

That is a difficult question to answer because it depends on the situation which develops and in the form of legal action proposed to be taken. My hon. Friend asked me whether there was some other provision in the Bill, and I said that there was not.

Mr. Leon Brittan (Cleveland and Whitby)

The Minister of State said that if the decision was "Yes", the Government were obliged to give effect to that decision. In support of that he brought in aid subsection 3 of the new clause. Will the Minister not agree that perhaps he is incorrect because the relevant part of the subsection says: if the decisions are that effect is to be given to those provisions so far only as they relate to the government of Scotland or Wales an order under section 114 of this Act shall not be made so as to give effect to them also so far as they relate to the government of the other of those countries"? That does not impose an obligation on the Government to bring forward a commencement order in respect of the other country. If that is so, does the Secretary of State agree that the effect to be given to the referendum is entirely dependent on the Government choosing to exercise their power unfettered by this House to bring forward a commencement order?

Mr. Smith

No doubt we can discuss these matters in Committee. My understanding is—

10.15 p.m.

Mr. Peter Rees

On a point of order, Sir Stephen. The Minister is obviously confused, and should we not have the benefit of the advice of the Lord Advocate on this matter?

The Temporary Chairman

That is not a point of order, as the hon. and learned Gentleman knows perfectly well. I take this opportunity of saying that in my view it is a great abuse of the privileges of this House to raise points of order that are not points of order. It deprives the hon. Member who has the Floor of the right to continue his speech, it interrupts his train of thought, and it is a procedure that I deplore.

Mr. Smith

I believe that the interpretation of the facts I have announced is correct but I shall examine what the hon. and learned Gentleman said. The effect of the last line—[Interruption.]

The Temporary Chairman

Order. The convention of this House is well understood by hon. Members. If a Member has the Floor and other Members wish to intervene, they should indicate that they wish to do so. It is then a matter for the hon. Member who has the Floor to decide whether to give way. It is quite wrong for other Members to try to bully an hon. Member who has the Floor.

Mr. Smith

The effect of the last line of subsection (1) is that the result is determined by simple majority of valid votes. There is no provision for a specially-weighted majority requirement or for a minimum percentage level of the electorate polling. I am aware that commentators and some hon. Members have pointed out that a very narrow majority on a low poll might be regrettable, but I do not think this is a likely situation, and it would he difficult to fix an arbitrary qualifying level of some kind in regard to the counting of votes.

The second detailed point concerns the hypothetical situation in which one country says "Yes" and the other says "No." This again I think unlikely, but I must accept that it is possible. Right hon. and hon. Members at an earlier stage expressed concern that this might produce an intolerably confused legal situation. I can assure the House that any such fears are unfounded. It is a familiar feature of many Acts that commencement orders can have the effect of bringing some parts into operation at one time and others at another or even not at all.

But to put matters beyond risk of doubt subsection (3) provides specifically for the "Yes" and "No" eventuality. If one country says "Yes" and the other "No", the provisions for the second cannot come into force; and an Order in Council subject to affirmative resolution of this House can tidy up the Act and so lend to its being published in a form more suitable for practical use by those to whom it will apply, without the confusing inclusion of inert provisions.

My final point about the clause is that the referendums are, by implication, once-for-all affairs. There is no provision in the clause for a re-run if a country says "No". In that event, the Act's provisions for that country perish; they do not, as it were, hang in limbo available to be revived by a later referendum under the Act.

Mr. Maurice Macmillan

The hon. Gentleman says that an affirmative resolution of this House would be involved. Should he not have referred to an affirmative resolution of both Houses?

Mr. Smith

I stand corrected, and I am grateful for that intervention.

I turn to the schedule, and I shall pick out the main points. Paragraph 2 deals with the date of holding the referendums. It specifies that the date shall be the same for both. This seems right in order to avoid fears that voting on one might be undesirably influenced by the outcome of the other. That matter aside, the date is left open. It would be settled by Orderin-Council subject in draft to affirmative resolution of both Houses. I wish to stress that all the orders relating to these referendums will be of this affirmative-resolution kind and will give Parliament maximum control.

Mr. Malcolm Rifkind (Edinburgh, Pentlands)

The hon. Gentleman said that it would be undesirable that voting in one country should be influenced by voting in another and that for this reason both referendums should be held on the same day. Why would that prospect be so undesirable?

Mr. Smith

Fears have certainly been expressed to me that voting on a different day in one country might influence the result in the other. It is convenient to have the polls on the same day, and common sense indicates that that is a desirable course. I have not heard any convincing argument why they should be on separate days. We would not want to see the unedifying spectacle of the hon. Member for Glasgow, Cathcart (Mr. Taylor) fighting with the hon. Member for Pembroke (Mr. Edwards) over which country should go first.

Mr. Pardoe

A Welshman making up his mind about whether he wanted Wales to be part of the United Kingdom might well come to a different view after finding out whether Scotland would be part of the United Kingdom. Is that not part of the evidence that he will have to take into account?

Mr. Smith

Any Welshman thinking in that direction would be so wrong about what was involved in the referendum that he would have to be a Welsh Liberal. The hon. Member for Cornwall, North (Mr. Pardoe) said that the question Would be whether Wales should remain in the United Kingdom. But the Government have not proposed such a question.

Mr. Timothy Raison (Aylesbury)


The Temporary Chairman

Order. I do not know how many times I must remind the Committee that we cannot have two hon. Members on their feet at the same time.

Mr. Smith

As the hon. Member for Cornwall, North knows perfectly well, the question proposed by the Government for the referendum—and I am defending the Government's proposal—is whether the Scotland and Wales Bill as passed by Parliament should be put into effect. Some people may get that wrong and the chances are that most such people will be Liberals. We must do our best to make clear that the question will be about whether the devolution scheme should be put into effect.

Mr. Raison

A few minutes ago, the Chair ruled that it would be in order to introduce, by means of amendment, other questions so long as they did not actually have any effect.

Mr. Smith

I am defending the Government's proposals and not amendments that might come from any other quarter.

In practice, we envisage that to give time for administrative preparations and the circulation of information at least a month would be needed after Royal Assent to the Bill. For our part, the Government will certainly want to carry matters forward as briskly as possible.

I come now to paragraphs 3 and 4, and thus to one of the crucial issues—the issue of eligibility to vote. In substance, the essential test, as we propose, will be inclusion in an electoral register in Scotland or Wales. Now I am very well aware that a good many people, in this House and elsewhere, would like a wider basis of eligibility—a basis extending to the whole United Kingdom. We shall undoubtedly discuss this further when we consider detailed amendments; but I should like to explain briefly the Government's approach.

Our country is a United Kingdom, and any major new constitutional relationship within it is naturally of some concern to all parts. But it may not, and the present concept does not, concern them all equally directly, or in the same degree. It is a cardinal principle underlying the Bill, plainly enunciated in last year's White Paper, that the Government propose the devolution only of those areas of activity where decisions affect primarily people living in Scotland and Wales". In practical terms, the Scottish scheme, for example will affect those who live in Scotland far more concretely and extensively than it will those who live in England, Wales or Northern Ireland; yet all these latter are in total far more numerous. The result is that if voters everywhere in the United Kingdom took part, the view of those most closely affected by the proposals, could very easily be swamped by the opinion—even if a tepid one given by narrow majority on a low poll—of those far less affected and far less concerned. This would be not merely unsound as a matter of equity; in the practical circumstances of today, it might be a recipe for confrontation and division of the most damaging kind.

There is a further very relevant factor. If it be urged that the voice of England must be heard, then I ask the Committee to remember that the provisions of the Bill will be determined in Parliament—above all by 516 MPs representing English constituencies in the House of Commons. In respect of the Scottish scheme, Scottish MPs will be outnumbered eight to one in the Lobbies. In respect of the Welsh scheme, Welsh MPs will be outnumbered seventeen to one.

Mr. Higgins

If I understand the hon. Gentleman's argument correctly, I am a little puzzled by the discussion which we had earlier on whether the referendum was to be mandatory. Is he saying that if the majority of hon. Members do not like the result of the referendum, the Orders in Council which will be laid before us by affirmative resolution is one against which we shall be allowed to vote?

Mr. Smith

That is not my understanding of the provision. I was talking about the effect of the voting which takes place in the country and pointing out that there will be a referendum only if the House approves the Bill and that the vast majority of hon. Members are from English constituencies. If the Bill reaches that stage, it will have been approved by a majority of the House, and this is a factor which should be taken into account by those who say that the voice of England must be heard.

Mr. Brittan

If the hon. Gentleman is saying that the majority of English Members is a counter-weight to the effect of the referendum in which only the Scots and the Welsh will be able to vote, will he kindly undertake never to use, in the remaining stages of the Bill, the argument that it must be passed because otherwise there will be no referendum?

Mr. Smith

I would not consider using such an argument. It would be a hard one to sustain. The hon. Gentleman's question is confusing because it attributes to me in advance an argument which I have no intention of espousing. The only proper way that anyone can commend a Bill to the House is on its merits and that is what we have been urging on the House.

Mr. Higgins

Our earlier discussion turned on the question whether the referenda was to be mandatory. Am I correct in understanding that it will be possible for hon. Members to vote against the proposed Order in Council?

Mr. Smith

The Order in Council deals with a slightly different matter. It is a tidying up provision for the Act in case the decision is"No" in one country and "Yes" in the other.

Mr. Jay

It was said earlier that in order to carry the effect of the referendum into legal effect, it would be necessary to bring an order before the House. If that is done the House may, in the last resort, vote against it. Is that not so?

Mr. Smith

That is not so. The effect of the decision is on the Secretary of State making a commencement order under Clause 114 of the Bill.

Mr. George Cunningham

I understand that if the result of the referendum is "Yes" in both cases, there will be no need for the Order in Council, apart from the technical necessity to which the Minister has referred. But does that mean that if the vote in Scotland is "X" in favour and "X minus one" against, there is no possibility of the House stopping devolution going ahead for Scotland?

Mr. Smith

Yes. The decision is made on a simple majority of the votes cast. A one-vote majority is sufficient. That is clear from the provisions of the Bill.

10.30 p.m.

I shall turn, briefly, to two other aspects of voting eligibility. First, I understand and sympathise with the feeling that expatriate Scots and Welsh should vote. But on examination I believe that this is untenable both in principle and in practice. It is untenable in principle because this is a Bill about the government of those who, whatever their origin, live in Scotland and Wales, not of those who come from there. It is untenable in practice because there would be intractable problems of definition, location and identification. Precisely because ours is a United Kingdom we have no legal concept of Scottish or Welsh nationality, and we cannot sensibly attempt to create one by the back door in the course of this Bill.

Secondly, we are considering sympathetically the position of Service voters from Scotland and Wales. Parliament has already made special arrangements for Service voters as a distinctive class in the 1975 referendum, and there is a case in equity for doing something of the kind again. The administrative problems here are different and in some ways more awkward, but we are trying to solve them, if possible on the lines of somehow bringing forward in suitable respects the operation of the Representation of the People (Armed Forces) Act which Parliament passed last year on the initiative of the hon. Member for Woking (Mr. Onslow). If such arrangements prove possible, and if they prove to entail adjustment to the present clause or schedules—and they might not—we shall bring suitable amendments forward at the Report stage.

I come now to paragraphs 5 and 6 of the schedule, which provide for a single question in each referendum on the basis of a ballot paper in the terms set out in the relevant appendix. We have drafted these terms as neutrally as possible, and confined them to the minimum we judge necessary to remind the voter of the direct practical and legal effect of his choice, as distinct from subjective political opinion of where it may or may not lead.

I wonder whether the Conservative Party will make criticism of that because when I discussed this on a radio broadcast last Friday the hon. Member for Glasgow, Cathcart did not find much at which to object in the proposal.

The major issue in this area is however—and I recognise this—whether there should be any additional question, in particular a question in some form or another about independence.

The Government have thought carefully about this, because we know how much importance is attached to this by some of my hon. Friends and other hon. Members. But it is our very firm conclusion that to include such a question would be both unhelpful and out of place. We shall, if necessary, develop the arguments to this effect more fully when the Committee conies to consider the relevant amendments. Such amendments already appear on the Order Paper.

Mr. Kinnock

Was my hon. Friend's use of the word "firm" well advised in view of the general history of the Bill, which has been anything but that? Whilst he may have his chance to advance arguments against having the second question, will hon. Members have the chance to argue in favour of having the second question? He has spoken of the necessity of coming to a clear decision. Would not the process of getting an intractable result with which nobody could quarrel be assisted by the provision of a second question which would separate the separatists from those who disagree with devolution?

Mr. Smith

The Government have promised to listen carefully to amendments and indeed, accept suggestions. As my right hon. Friend the Leader of the House said, on the one hand we are accused of not being firm now, and on the other we are accused of being arrogant, inflexible and are described by all manner of adjectives. When I say "firm" I mean no more and no less than that. My hon. Friend the Member for Bedwellty (Mr. Kinnock) deployed the argument in favour of the proposition for the independence question before I had had the opportunity to develop my argument.

Perhaps I could say briefly that we see no virtue in converting the referendums into opinion polls on an undefined concept as a political device for scuppering nationalists or any other section of political view in the country. Our view of the referendum proposes a direct reference to the people on a practical question with a precise meaning and a precise operational effect related to the Act. We see no ground for dignifying the nationalist minority parties by presenting them with a ready-made platform to seize the limelight for their extremist theories, and to swing the focus of the campaign and the attention of voters away from the real practical issue, which is whether devolution is to be implemented in Scotland and Wales. We see no ground for creating the impression either at home or abroad that the break-up of the United Kingdom is a serious item on the political agenda of the British people.

I do not think that I need to say a great deal more about the other provisions in the schedule as I am sure that Members of the Committee will have noted them as they read the schedule. We have at every point sought to follow as closely as is possible in the slightly different circumstances the provisions that Parliament approved in the 1975 Referendum Act, including the pattern of counting and declaration of results.

Mr. Dafydd Wigley (Caernarvon)

The hon. Gentleman says that he has followed the pattern of the previous referendum but some of the features of that referendum have been omitted, especially the possibility of finance for the umbrella organisations for the "Yes" and the "No" votes. Allied with that is the control of expenditure, which many believed was one of the major drawbacks in the whole procedure of the previous referendum. Is there no way in which checks can be built in? What are the Government's thoughts?

Mr. Smith

The hon. Gentleman raises the question of campaign funds or some subsistence being provided by Parliament to campaign organisations on either side. As the provisions now stand, there will be no power to make subventions from public funds to any campaign organisations. This is a matter that we are still considering. We have not yet come to a decision. We shall take account of any views that the Committee may express. I should say so that there is no misunderstanding, that our current inclination lies rather against making any public subventions. There are considerable difficulties in respect of umbrella organisations. As I have said, our inclination at present is not to make subventions from public funds. We shall listen carefully to what is said on the matter in Committee when we discuss it further.

Mr. Rifkind

In line with the Common Market referendum, will members of the Government be free to campaign on either side?

Mr. Smith

The hon. Gentleman knows as well as I do that there is a clear difference between the present situation and the Common Market referendum. This is a Bill produced by the Government to which the Administration gives its full support. There is no question of there being any difference of opinion when it comes to campaigning.

Mr. Raison

The hon. Gentleman has just said that the Government have endeavoured to follow precedents but I think I am right in saying that there is one change, which is that the last referendum asked "Do you think?" and this referendum "Do you agree?" It seems quite clear that the word "agree" is a clanted and tilted word. Why has it been introduced?

Mr. Smith

I find that argument almost incomprehensible. I cannot see that it is tilted to ask people whether they agree with the provisions that the Government put forward. There is another proposition that suggests "want". We must consider the words carefully, but the Government strove to ensure that there was as objective a presentation of the issue as possible and a simple proposition. However, this is a matter that we can consider—[Interruption.] I have to listen to Opposition Members a good deal during our proceedings in Committee and I hope that they will pay me the courtesy of listening occasionally.

There is nothing slanted in the use of the word "agree". It is a simple proposition. It is a proposal to ask the people whether they agree that the provisions of the Act should be put into effect. Those who try to cavil at that and to suggest that in some way the Government are trying to slant the question deliberately are putting forward an unworthy, unjustified and unreasonable argument.

Mr. Nicholas Edwards (Pembroke)

The hon. Gentleman has said that the Government are not considering making resources available to the umbrella organisations. Are they at the same time to tell the Committee that the Government will not use any of their propaganda resources to campaign on behalf of their own Bill?

Mr. Smith

The Government are being very fair with regard to the expression of opinion. I do not know whether the Conservative Party takes any view on the question of campaign funds. No doubt that will be revealed during the debate if it is thought appropriate. If so, we shall listen. We have not finally decided that question. We shall listen to the views of the Committee. However, I must be fair. Our inclination is that there would be considerable difficulties about restricting the expenditure. Again, that matter will no doubt be explored.

Mr. Rathbone

I should like to raise two technical points. The first concerns subventions from public funds. The crucial part of any referendum preparation battle is that the arguments on both sides should be discussed thoroughly. Obviously that cannot take place without some subsidy from the Government.

Secondly, have the Government sought professional advice on the wording of the question from, for instance, the Market Research Society? If the Government do no make use of it, they must lay themselves open to the suspicion that they have loaded the wording.

Mr. Smith

The first point is no doubt one that the hon. Gentleman will seek to make to the Committee. As I said, we shall listen to the views of the Committee on this matter. We value the opinions of all parties.

On the second point, no, we did not take advice from the Market Research Society. We thought that we were capable of reaching a fair conclusion. It would not assist us to run to all kinds of professional opinion testing societies. We felt that it was not beyond our ability to devise a fair question and to ask the Committee to consider it. The Committee will no doubt consider whether there should be any change in the question that is to be asked.

We believe that the preamble is factual. It states what the Bill does. It states that Scotland and Wales will remain part of the United Kingdom. It also makes clear that the provision will be brought into effect only if the referendum gives a positive result. I cannot see anything objectionable in that. We shall be prepared to defend it line by line, consistent with listening to the views of the Committee.

Mr. Abse

My hon. Friend has declared that the Government will not allow Ministers to express their genuine differences, which are notorious. If that is the Government's stance, does it not become even more important that money should be made available? The Government have all their own resources and my hon. Friend implied that they will use the resources of the Labour Party, despite the fact that, when justifying the referendum, he indicated that there were deep conflicting views right across the parties? Therefore, is it not important that the Government should reconsider the position of subventions, particularly if they are going to put up a spurious front of unanimity?

Mr. Smith

My hon. Friend should not be surprised if the Government defend a Bill which they have recommended and expect their supporters and Ministers to support it. I am sure that he will not expect me to accept ministerial responsibility for the Labour Party in Wales, in Scotland or in any part of the United Kingdom. Indeed, I think that the Labour Party would be the first to object to Ministers making commitments on its behalf. No doubt the Labour Party throughout the United Kingdom will come to its own conclusion on its own consideration of the matter. My hon. Friend should advance that argument within the councils of the Labour Party, not in this Committee.

10.45 p.m.

Sir Nigel Fisher (Surbiton)

The Minister said that the preamble to the question was factual. It says: Scotland would remain part of the United Kingdom. That is an assertion and a matter of opinion. It happens to be the Government's opinion—at least, I hope it is—but it is not a statement of fact. In fact, the fear that Scotland will not remain part of the United Kingdom is the very reason why most of us who oppose the Bill are so worried about the whole concept of devolution and the contents of the Bill. It is not fair to put it into the minds of the people that this is a factual statement, when it is simply an expression of opinion, with which many hon. Members do not agree.

Mr. Smith

The hon. Member is entitled to his own views, but I believe that it is correct to say that as a result of these provisions, Scotland would remain a part of the United Kingdom. Clearly that is the effect of the Bill. We shall come to these matters later, but I cannot understand why exception is taken to that. It is understood that Scotland and Wales would remain part of the United Kingdom—I believe, most strongly part of the United Kingdom, but that is a matter for argument. It is important that people asked to vote in the referendum understand that. That is why we included that sentence in the preamble.

Mr. Iain Sproat (Aberdeen, South)

If the hon. Gentleman says that that statement is a fact and that is why it is included, why does he not also include statement of the facts that it will cost £36 million and will need another 1,000 civil servants to administer, with a general increase in bureaucracy?

Mr. Smith

That would be an absurd thing to put in a referendum in which we were drawing attention in a very short preamble to the main provisions of the Bill in order to put a simple question.

Mr. Powell

On the matter of the Government's attitude and collective responsibility in favour of the Bill, would the Minister say something about the question of confidence in the event of a "no" answer if the referendum is mandatory? Of course, if it is only consultative, no question of confidence necessarily arises. He will recollect that in the case of the 1975 referendum, the fact that the Government themselves as a Government were not collectively involved evaded the issue of confidence. Would he address himself briefly to that?

Mr. Smith

Questions of confidence in the Government are matters for the Prime Minister and not for me. I do not think that the Prime Minister would welcome my giving assessments in a hypothetical situation of what would be the effect for the confidence of the Government. Indeed, I wonder how long I would stay in this job if I started on that road. Of course, that may be an incentive to hon. Members to try to get me to make that assessment.

Mr. John Mendelson

I accept what the Minister has said and will not press him on this point, but will direct all questions about confidence to the Prime Minister. But would he therefore agree not to make large statements about it being so self-evident that all members of the Government must campaign in favour of a "yes" vote?

Mr. Smith

I have tried to explain. The Government will support the Bill, which should not surprise my hon. Friend, since they are asking the House of Commons to support it and it would be surprising if they did not take the same attitude in the country.

As a whole, the provisions that we are now putting before the House are designed to set before the voters in Scotland and in Wales a clear issue, fairly presented, and with a precise practical objective; and to conduct the poll in a businesslike manner closely precedented by the 1975 referendum. It is for these reasons that I commend the clause and, eventually, the schedule to the Committee.

Mr. Pym

Not for the first time do I find myself in the unenviable position of opening a debate for the Opposition long after the time when a normal parliamentary debate would have ended. The Government got their way on the last motion and we are now embarking on a debate on the referendum. I think it is a mistake, but we are doing it because the Government wish it to be that way.

I was disappointed with the Minister of State's opening speech, for two reasons—first, because I do not think he gave a clear reply on the important question of the extent to which this referendum is to be mandatory—or the extent to which it is not—and, in particular, the situation that arises in the event of the majority of voters in Scotland or Wales saying "Yes".

I believe that subsequent events are governed by Clause 114 (1) which says that This Act shall come into operation on such day as the Secretary of State may by order appoint ". Nothing in the new clause in any way alters that. No parliamentary process at all arises out of that. Certainly there is a parliamentary process if one of the two countries says "No" and the other says "Yes", but not in relation to that country that has said "Yes". I think that is the true position which I do not think the Minister of State made clear.

Mr. Hal Miller (Bromsgrove and Redditch)

My right hon. Friend is correct in adducing that there is nothing to activate it if one says "Yes" but, further, there is nothing to activate it if both say "Yes".

Mr. Pym

That is indeed the position, and only the Secretary of State decides. I wish to mention an amendment that we have already tabled which will alter that position because it is an incredible and unacceptable position to contemplate that at the end of this referendum there should be no further parliamentary process.

The other aspect I found disappointing was that although the Minister of State carefully described the new clause and new schedule he did not raise many of the fundamental constitutional issues that seemed to arise out of it. I am quite certain that after what has happened today there is no doubt that the implications of holding a referendum are considerable and, politically, potentially far reaching. The sovereignty of Parliament itself is involved and there is no doubt that the introduction of this referendum procedure creates, as the Chairman of Ways and Means has said, a new precedent.

Those facts alone show the significance of what we are doing. Although there was a referendum two years' ago, the circumstances at that time were different and the issue was different. But the referendum we are now debating is still a constitutional innovation. My hon. Friend the Member for Worthing (Mr. Higgins) is right about that. I am certain that the House will want to treat the matter with the utmost care.

It is clear from the Minister of State's speech and the many interruptions that there are many issues to be debated in connection with this new clause. Many hon. Members believe that a referendum is unnecessary and wrong in principle, because referendums do call the supreme authority of Parliament into question and introduce a new element into our democratic parliamentary system.

Other hon. Members feel that in certain circumstances there is a place for a referendum. Some of my hon. Friends have been campaigning for this new method to be introduced. My hon. Friend the Member for Beckenham (Mr. Goodhart) has taken a lot of time and trouble campaigning for this.

If referendums are to be contemplated there is a danger of having too many. Everyone will agree that if they are to come they ought to be used sparingly. Most hon. Members will agree that they should not become routine. But the question is on what principle or basis do we decide to have one. That is the strongest reason for having a separate Bill dealing with referendums in general. The beginning of that Bill should set out what the principles or criteria are that have to be satisfied before we have a referendum. I myself am not competent to suggest what they should be but it is certainly the right approach to take, so that we can look at the general principle rather than considering it on a piecemeal basis as we did with Europe and in connection with this Bill.

Mr. Douglas Henderson (Aberdeenshire, East)

It would perhaps be convenient if the right hon. Gentleman could tell us fairly early whether the Conservative Party is opposing the holding of the referendums or supporting it, or is doing what it has done throughout the debates—abstaining in total.

Mr. Pym

Perhaps the hon. Gentleman will allow me to proceed with my speech.

Mr. Henderson

Answer the question.

Mr. Pym

I shall answer it. I have indicated how this matter should have been approached. A constitutional issue affecting the way in which the United Kingdom or any part of it is governed is obviously a highly important matter, and certainly there is a case for giving the people an opportunity to express directly their own opinions and preferences on a constitutional matter. But it depends on the context in which it is done.

The context in which we are considering this new clause is the government of the United Kingdom as it affects Scotland and Wales, and I wholly agree with many hon. Members that any alteration there also affects the government of the United Kingdom as a whole. But in the context of the government of the United Kingdom as far as it affects Scotland and Wales, it does not seem right to deny to the people of Scotland and Wales the chance to cast their votes in a referendum.

We know that they want to do it. Right hon. and hon. Members on both sides of the House have reported that to be so, particularly those representing Scottish and Welsh constituencies, and I think that the desire of people to express their views in a referendum is understandable. On that basis, we shall not oppose what is in effect the Second Reading of the new clause, but I emphasise that this is in the context of a particular referendum, of a particular question, and of the particular circumstances of this Bill.

But that is far from the end of the matter—it is only the beginning. What is crucial is the question or questions asked, the status of the referendums and all the details surrounding them. Public understanding and comprehension of all the issues involved in what they are being asked to decide is most important, and we are concerned about the handling of the campaign in connection with the referendums if the House decides eventually to hold them.

Here we must express again our great anxiety about the arrangements being made. The Government have indicated that they do not intend at the moment to make any funds available, and we are worried about the possibility that, in one way or another, the vast resources of money and other resources available to the Government could be used, directly or indirectly, to further their propaganda campaign.

It is our feeling that one of the reasons, although not the main one, why the clause is being taken now is in order that the Government will have parliamentary justification for making propaganda war on Scotland and Wales with all the Government's resources, and it will be difficult to identify any particular expenditure in an individual Government Department used in connection with that campaign. But used it will he, we suspect. That is why anxiety has been expressed on the financial aspects.

It is all very well for the Minister of State to say that the Government want to be fair. That is an assertion. But the Government have greater resources at their disposal than those which are available on the other side of the fence. That is why separate and different arrangements were made in connection with the European Communities Act. These are difficult aspects in the organisation of the holding of referendums.

Mr. Crouch

My right hon. Friend has just told the House and his Conservative colleagues where the Conservative Party stands. I am greatly concerned to hear his statement, because he is saying that the people of Scotland and Wales should have a chance to decide this issue and have it referred to them. But it is not just a matter of that issue. It is also a question whether my right hon. Friends agree with the Bill, and they have clearly shown that they have not agreed with the Bill from the beginning. [HON. MEMBERS: "Too long".] I must take time. I never get called in these debates. I have sat here for hours day after day and have not been called. Originally I was in favour of the Bill. I am concerned to hear my Front Bench taking the view that the matter should be referred to the people of Scotland and Wales. I thought that my Front Bench did not want the Bill to go through. The Government have not made a single concession, except over Orkney and Shetland, in the past month, and I am gravely concerned that we are producing a Bill that no one likes. I do not think that we should foist that on the people of Wales and Scotland.

11.0 p.m.

Mr. Pym

I sympathise with my hon. Friend's point of view. I have indicated our attitude to this Bill many times and I am just adducing our arguments about the fact that there are numerous problems with a referendum.

Of course we are opposed to the Bill, and it remains to be seen whether Parliament will ever pass it. It seems to me that there is not a majority for it in the House of Commons, in which case the problem will not arise. It is not accurate to say that we want to refer it to the people of Scotland and Wales, but we do not seek to deny them the right to express their opinion by referendum about a change in the government of the United Kingdom which affects them.

Mr. Higgins

I return to the point my right hon. Friend was making before the last intervention—that is, will Government funds be used for party political purposes? It is right to mention that the Head of the Central Office of Information has an impartial role to play, and his duty is not to allow the use of Government funds in the way my right hon. Friend described.

Mr. Pym

I am not sure that I would not rather have the Auditor-General or the Comptroller. I did not say that the Government would use funds in a party political sense. I am fearful that the funds might be used in a campaign to vote "yes", which might be considered party political but which is not really so, without any resources being made available to the other side. It would be very difficult to identify what expenditure of Government Departments could he said to have been used in favour of the referendum.

Mr. Kinnock

Could the right hon. Member tell us whether he agrees that the integrity of the whole proposition of a referendum is better sustained by making available Government finances in equal amounts to both sides in the campaign, than by leaving the question in doubt—something which might sadly afflict the public's attitude to the whole campaign?

Mr. Pym

I will give a personal opinion—yes, I do think that it would be better to do it that way, as in the last referendum, because of the anxieties which could be felt about one-sidedness. But we can debate that later in greater detail.

Mr. George Cunningham

The right hon. Member is suggesting that there is a fear that Government funds could be used for this purpose. Does he recall the period of 1961–63 when, although there was no referendum on the Common Market, a massive effort was mounted by the then Government to persuade people that it was a good thing to enter the market? Vast amounts of public money were used on that occasion to try to get the public to agree with the Government's way of thinking. No referendum was at issue then. But do not let us encourage the notion that there is an off-chance that public funds may be used. It is an absolute dead certainty.

Mr. Pym

I suppose another example would be the vast expenditure by the Government in engaging public relations experts to persuade the British people that inflation was only 8.4 per cent. when it was twice that figure—

Mr. George Cunningham


Mr. Pym

Well, there was a campaign and people were employed at high salaries to do that. In neither case, however, was there a referendum, and it is a referendum that we are discussing.

I think that the Minister of State was rather too optimistic about getting away with the wording of the question as it now is. I do not think that the wording of either the question or the preamble will do. The hon. Gentleman said that the question was designed so that people in Scotland and Wales could decide whether devolution would take place or not. But that is not the question. The question is whether the particular form of devolution as proposed in this Bill will take place, and that is totally different.

I disagree with the preamble, and I agree with my hon. Friend the Member for Surbiton (Sir N. Fisher) who said that the assertion that Scotland will remain part of the United Kingdom is a matter of opinion. It is. I do not agree with the question. The word "agree" is wrong and the Minister of State's defence of it will be challenged by many hon. Members. The impression given by these questions as worded here is a thinly disguised slant towards "Yes". It is a tendentiously-worded question, and frankly we do not accept it.

Mr. Anderson

Is the right hon. Gentleman prepared to consider, as a sort of trade-off for leaving that phrase in, the inclusion of something to the effect that the Government consider that the cost would be not less than £12 million?

Mr. Pym

There is a body of opinion in the House that believes that the cost ought to go into the question. No doubt hon. Members will debate that aspect.

I want to contrast the questions drafted in Appendices 1 and 2 with the question in the Referendum Act 1975. It was a much simpler question. The preamble was one sentence. It read: The Government have announced the results of the renegotiation of the United Kingdom's terms of membership of the European Community. Then the question was: Do you think that the United Kingdom should say in the European Community (the Common Market)? That was a much flatter, more neutral question than that which is proposed here. I am intrigued by another variation between what happened then and what is proposed tonight. There were separate boxes for "Yes" and "No" in the 1975 scheme. They are joined together in the proposed schedule before us. I am not a psychologist or an expert in consumer affairs, but I suspect that there must be some subtle reason for joining the two boxes together this time.

We have tabled an amendment which is lettered k6—(kkkkkk) or k to the power of 6—and another which is lettered (111111) or I6 which we seek to include in substitution of the two existing appendices. They are an attempt by us to make the wording more neutral and to satisfy the criticism of possible bias.

Mr. Dalyell

I do not know whether it is bias against me, but my amendment is lettered (zz). Will the right hon. Gentleman consider whether costs ought to be brought into the questions, and whether the destinations of the oil revenues should also be referred to?

Mr. Pym

Those are very important questions to which we shall come later, but I have spoken for some time and I still have much to say. I must not he diverted by the parliamentary interrupter-extraordinary.

I come to the second substantive issue raised by the debate—namely, whether there should be more than one question. Undoubtedly there are many arguments on both sides, but our debates will be mainly concentrated on whether there should be an extra question on independence. We are not in favour in this context of an extra question of that kind. I shall explain why.

In the first place it is accepted by nearly everybody in the United Kingdom that the people of the United Kingdom are against separation of the parts of the United Kingdom, or partition, or independence, or whatever one likes to call it. The number of people who are said to be in support are about one in six in Scotland, and perhaps a slightly lower proportion in Wales. That is a small proportion of the people in the United Kingdom. Therefore, it is not a United Kingdom issue, and in those circumstances it does not appear that a referendum can be justified because so few people want it.

But even if there were a referendum on that question, I do not think that it would dispose of the issue, as some people try to pretend. By including a question of independence at this stage, it seems to me that we should be giving the concept of possible independence of a part of the United Kingdom a credibility that it does not now possess. It may positively assist those who would like to bring about that end result. That is a matter of opinion, and we shall debate it at length, but it is an issue on which Parliament is entitled to know our view at this stage.

I do not believe that the desire for independence for any part of the United Kingdom will grow in any part of the United Kingdom. After these debates we have had so far, I believe that it will lessen. I think that people are becoming more and more alarmed at the possibility of separation or independence and what that would mean. But if it ever did become an issue—and I do not accept it will—everybody in the United Kingdom would be entitled to vote and would wish to exercise that vote. It would have to be done in the context of a General Election and not merely of a referendum. It is far too major an issue for that.

Mr. Henderson

The right hon. Gentleman has made an important policy statement on behalf of the Tory Party—namely, that if the people of Scotland wish independence, the people of England will have a veto. Does he not agree that that is the position of the Conservative Party?

Mr. Pym

I am saying that if independence were to become a live and real issue, and if in different circumstances from those that now obtain there were a desire for a referendum on that issue, everybody in the United Kingdom would be entitled to vote.

Mr. Henderson

English people?

Mr. Pym

The hon. Gentleman must not add two and two and make the figure 106. If we ever come to that issue, we shall debate all the circumstances surrounding that referendum, if it is proposed.

Mr. Henderson

The hon. Gentleman is back-tracking.

Mr. Pym

No. I have said that such a matter would be so major that it would not be a question of a referendum but of at least one General Election, and perhaps two.

This brings me to the question of the constituencies. If ever we were to get to the unfortunate and unhappy question of independence, if such a question arose, I should be in favour of extending the referendum, if such were held, to the entire United Kingdom. But let us hope that we never reach so undesirable and unattractive a possibility. But unless we do, I see more disadvantages than gains in asking these questions prematurely.

I come to another aspect of the constituency argument which involves the expatriate Welshman or Scot. Such expatriates who live in England are very keen indeed to vote—and naturally so. They feel keenly involved. What consideration has been given to this possibility? The Minister of State raised some difficulties, and I accept that there are many of them. But what would be involved in making that decision? That is clearly a question to which the House will want an answer, if not now then when the amendments are considered. because it is a matter that will affect the unity of the United Kingdom. Scots and Welsh people living outside their own countries feel directly concerned and that is understandable.

11.15 p.m.

Next I want to raise the matter of the status of the referendum about which we have had so much discussion today. That is linked with the question about whether a simple majority will do or whether there ought to be some stipulation on a specified percentage turnout of electors and a specified majority vote.

If, at any stage, a referendum on independence were held, there would be a powerful argument for requiring that a majority of the electorate should have voted for it, and that the result should not depend just on a majority of the votes cast. If the referendum was man-, datory such a requirement would be inescapably necessary, otherwise how would we know whether there was a real and genuine majority desire for so major a change? The onus must rest with those people desiring change to prove that it is wanted.

The question that arises here in the context of the Bill does not relate to independence. Even so, the principle of a minimum percentage turnout and a minimum percentage majority does arise. As the Bill stands, a simple majority in favour, with no minimum turnout, would put the Secretary of State in a position to activate the Bill. The Minister said, in dealing with this point, that such a situation was unlikely to occur, but that is absolutely no answer. The fact that there is the remotest possibility, in theory or in practice, that it could happen means that it will not do to leave the Bill in its present state. To allow a simple majority turnout that might be as low as 35 to 40 per cent. to activate the Bill, with all that that would mean for Scotland and Wales and for the whole United Kingdom, could not be justified.

That is an overwhelming argument for saying that, whatever else happens, the referendum ought to be on a consultative and advisory basis. It is hard to believe that the House would accept the proposition if it was not arranged in that way.

If the Leader of the House were as lie was in the old days when he sat below the gangway, he would be most passionately in favour of that point of view. If he were—if he will forgive me for this description—as he was in his Jekyll days when he keenly defended Parliament and the rights of Back Benchers, he would support this point of view.

The supreme authority of the House must be preserved and if any constitutional change is to be contemplated following a referendum, the House will want to return again to the details and implications involved in the referendum result. In this sense, the new clause has no more been thought through than a lot of the other issues in the Bill. An advisory and consultative referendum is much the wisest course to take. If the referendum is to be mandatory, then we must ensure that the majority in favour must be clearly overwhelming. Otherwise many people in this country who do not want the Bill could be damaged and that would be quite the wrong way to proceed.

There must be a subsequent parliamentary process. After the referendum on the EEC took place in 1975, Parliament had no difficulty in assessing the verdict. It may or may not be so clear next time. At any rate, we have tabled Amendment No. 756 to Clause 114 that has as its purpose and object the clear necessity and requirement for an additional parliamentary process, whatever happens in the referendum, so that the House will be able to consider all the circumstances surrounding the referendum. The House will be able to consider all the figures and everything that could be meant by them and will be able to judge the genuine and true consequences of the referendum. That proposition may find widespread support in all parts of the House.

The Bill has raised many major issues which have not been adequately thought out by the Government. The new clause and the schedule also raise many issues of a different kind, but of near equal significance. Whatever one may think of the proposal, it is another constitutional change in its own right.

The fact that the referendums have not been brought before the House in a separate Bill does not reduce the importance of what is proposed. I trust, therefore, that the Government will listen to all the arguments and views which will be put forward. At present, they are in-dictating flexibility. There was a moment earlier when it looked as though the House would get into a terrible tangle over points of order until the Leader of the House showed surprising flexibility on the advisory nature of the referendums. However, the Minister of State later showed what sounded like—though it may not have been intended—a degree of inflexibility in relation to the wording of the two questions. The Government must be flexible.

By taking the new clause now, we are diverted from continuing our discussion on the Bill. We are adding to the complications. I hope that there is no thought of a timetable or a guillotine in the Lord President's mind. We took a little comfort from what he said at the end of the last debate about wanting to ensure that there was adequate time to discuss all the issues which are relevant to the new clause.

A timetable motion cannot be justified on the Bill and certainly not on a matter dealing with a constitutional issue of the magnitude of that raised here

I have touched on some of the main issues arising from the new clause and we shall return in detail to many of its aspects. No one can be under any illusion of the magnitude of what is proposed and I hope that the House will show its usual good sense and work out a scheme that ensures that the authority of the House remains supreme in the government of this country. That is the fundamental principle from which we should never depart and amendments to achieve that end will be the minimum that we shall expect before the debates on the new clause and the schedule are completed.

To report progress and ask leave to sit again.—[Mr. Walter Harrison.]

Committee report Progress: to sit again tomorrow.