HL Deb 20 July 1978 vol 395 cc589-97

98 Schedule 10, page 51, line 22, at end insert— (". The initiation or holding of referenda.")

The Commons disagreed to the above Amendment for the following Reason:

99 Because it is undesirable to prevent the holding of referendums on questions relating to devolved matters.

10.40 p.m.

Lord STRATHCONA and MOUNT ROYAL

My Lords, I beg to move that this House doth not insist on their Amendment No. 98 to which the Commons have disagreed for the Reason numbered 99, but propose the following Amendment in lieu thereof: Page 51, line 22, at end insert— (" The initiation or holding of referenda, pleviscites or border polls "). These Amendments regarding Assembly initiation of referenda were rejected in the Commons without discussion, and it is a curious fact that whenever we discuss it in this House the hands of the clock are nearly always hovering somewhere around 11 o'clock. This has happened on at least two previous occasions. There is an important issue here, I think, because the override powers which are in the Bill are inevitably a potential source of conflict; indeed I suppose they are put there with that very reason in mind. But I think that the great fear is that the referendum might be used as a political and confrontationist device.

There are many who view the very concept of a referendum as what the nobe and learned Lord, Lord Wilson of Land-side, in a previous stage of the Bill called an, "alien and undesirable intrusion" in any case. I am bound to say that my own faith in the concept of referenda has been severely shaken by the discovery and the Government's declaration of the way they intend to use the Government machine in the referendum on this Bill.

That leads me indeed to suspect the motives that Governments' might have—even if they have not in this case—in initiating a referendum. Surely a genuine referendum should only arise when a Government feel the need to consult the opinion of the electorate. Yet, apparently in this instance, the Government feel no sense of restraint in using all the machinery of persuasion at their disposal to tell the electorate what answer they expect to receive when they have answered the question.

We would clearly support the concept of giving unbiased information prior to a referendum, as was done in the case of the EEC, but partisan propaganda seems to me to be altogether a different matter. Considerable doubt in the course of our discussions has been cast on the Government's reason. They give as their reason for rejecting our Amendment: Because it is undesirable to prevent the holding of referendums on questions relating to devolved matters ". Incidentally, it is rather satisfactory to receive official guidance on what is the proper plural of this rather difficult word. Apparently the Government draftsman prefers the English plural to the Latin plural, which I think I would have instinctively gone for myself.

However, in the past, the Government have had a habit of saying that referendums on devolved subjects are ultra vires under, I think, Clause 19 and perhaps also would give rise to the use of the override powers in Clause 6. However, my noble friend Lord Lauderdale—the good practical man that he is but who I am afraid is not with us this evening—questioned in practice how easy it would be to use the powers in these clauses. I have no doubt that if it were done the noble Lord, Lord Mackie of Benshie, would say that we were once again trying to "nanny" the Assembly. We are not trying to do that at all.

It also crossed my mind that we might be once again subjected to the classic answer of: "Oh, well, you see that is reserved by silence", which has been one of the new Government answers which has cropped up during the course of our debates. But even if that is so, would it not be better to make the use of what is admittedly, on all sides, a very novel constitutional device in this country, subject to an agreement on an order passed through the mother of Parliaments which exists as the basic bastion of the Constitution? That is why we have initiated this motion. I beg to move.

Moved, That this House doth not insist upon their Amendment No. 98 to which the Commons have disagreed, but doth propose the said Amendment in lieu thereof.—(Lord Strathcona and Mount Royal.)

10.49 p.m.

Lord WILSON of LANGSIDE

My Lords, in supporting this Amendment, may I preface the few remarks that I wish to make with an expression of concern at the limited time which has been allowed to Members of your Lordships' House for consideration of the matters before the House today. In this I echo the words which were spoken earlier by the noble Earl, Lord Perth. I do not, of course, expect the Government to pay any attention at all to what I say in the context of the Scotland Bill. But I would have hoped that the unlikely alliance of the noble Earl, Lord Perth, and myself in the context of the Scotland Bill might have given the Government food for thought, if indeed the Government are capable of digesting thought, which may be a matter about which some of us have some doubt.

Of course, this is not the first outrage which has been perpetrated during the passage of this Bill. Indeed, it occurs to me that one of the few occasions on which I felt in accord with the noble and learned Lord was when he said, in a rhetorical flourish, that he sometimes felt that he was in a madhouse, or he may have said a lunatic asylum. For a second I was in accord with him. Where I fell out with him was as to who was entitled to the appointment of medical superintendent of this establishment. I would have questioned his right to claim that appointment, which I felt he probably shared along with the right of the noble Lord, Lord Mackie of Benshie, to be the medical registrar.

But it is regrettable, particularly for Peers on the Cross-Benches, that so little time should have been allowed for reflection on these matters in relation to this important Bill. This is a feeling which I know is widely shared on the Cross-Benches and I hope that the Government will pay some regard to it.

I turn to the Amendment. I would support the Amendment with greater enthusiasm were I not as convinced, as I was three months ago that no amount of tinkering with this measure will make it one which contributes to the better government of Scotland. But there it is; these matters have been argued over and passed. I support this Amendment for two short reasons: first, because I believe in the sovereignty of Parliament.

The Amendment in our Constitution is a novelty, and I think it is a matter which requires considerably longer consideration than it has yet received, either in this House or in the other place. One must not be unduly dogmatic about this. Occasions may arise—we may agree or disagree as to whether this is one—in which the use of the Amendment is sensible. In the present climate when politicians, faced with difficult decisions, are apparently under great temptation, I deprecate the suggestion that, when they cannot make up their own minds, they should put the problem of decision on to the shoulders of the people. I think that that is one of the reasons why government is so had today. I think that one of the difficulties is that Governments are reluctant to make decisions and if they can find any excuse to put off making decisions, they will do so. The referendum is always a good one, and the referendum was used in the context of this Bill, of course, to buy the support of the other place, which the Bill would not otherwise have received. These are all difficult and complicated questions which I think we ought to consider.

The second reason I would support this Amendment is because, having been an observer—and more or less active in the Scottish political scene now for well-nigh 40 years—I should have thought that it would be a little imprudent to leave this weapon, at this particular stage in our constitutional development when all sorts of questions about Bills of Rights and other related matters are being raised, in the hands of this subordinate Parliament. I think it would be imprudent to do this. For that reason, I would support the Amendment.

Lord MONSON

My Lords, I, too, fully support this Amendment. I hope that this time I shall not be urging the noble Lord, Lord Strathcona, to press it to a Division in vain. As he rightly pointed out, as a result of the operation of the guillotine the other place has not had a chance to examine this matter, and it seems proper that they should have the opportunity of doing so. It would be one thing if the United Kingdom were to be broken up as a result of a conscious decision by a substantial majority of the people of the United Kingdom or one of its component parts: it would he tragic, but in a democracy one would have to accept the carefully considered verdict of the people. However, it would be quite another thing if the United Kingdom were to be broken up as the accidental byproduct of tactical political manoeuvring. This is what could happen if the noble Lord's Motion is rejected. I hope, therefore, that your Lordships will support the Motion.

10.57 p.m.

Lord McCLUSKEY

My Lords, in relation to the point that the noble and learned Lord, Lord Wilson of Langside, made about timing, I did not understand the noble Earl, Lord Perth, to be making quite the same point. A lot of time was taken up during the dinner hour and much more time than we expected, but I do not think that those who listened to those debates will blame the Government for what happened on that occasion. In relation to the time for consideration of what happened in the Commons, what was done here is what is always done at this time of year; negotiations and discussions through the usual channels. The consideration of Commons Reasons had to be dealt with in this House this week to enable your Lordships' rejection of some Commons Reasons to go back to the other place and allow further time for consideration of them, so that the matter can come back here some time next week. That is a common manner of dealing with such things at this time of year; and it should be remembered that the matters we are discussing are matters with which we are very familiar, having been over this ground many times in the course of the last few months.

Lord WILSON of LANGSIDE

My Lords, I am grateful to the noble and learned Lord for giving way. Can he quote any precedent for a Bill of this importance being put through Parliament in this way at what, if I may use the useful expression, is the "fag end" of a Parliamentary Session? Can he quote any precedent for that with a Bill of this magnitude and importance?

Lord McCLUSKEY

My Lords, I do not know what is meant by the "fag end" of the Session. At the end of a Session this kind of thing happens routinely.

Lord WILSON of LANGSIDE

My Lords, the noble and learned Lord has not answered my question. I remember the "fag end" of a Parliamentary Session in 1970 when we were rushing through non-controversial minor pieces of legislation. It may be that there are precedents for this, and I am genuinely asking the noble and learned Lord if he can tell me of any cases in modern British Parliamentary history when a Bill of this importance has been put through in circumstances of this sort.

Lord McCLUSKEY

My Lords, I will write to the noble and learned Lord a long letter giving him a list of these instances. Let me at this time of night turn to the substance of what we are talking about. I am not at all clear what is added to the Amendment by using the words "plebiscites or border polls", because certainly in relation to plebiscites, in practice it means the same thing as referenda or referendums, whichever you prefer. It means consulting the electors directly on important public questions.

The Government view—and I am repeating what I said before—is that no matter what is felt about the general constitutional desirability of plebiscites or the like in relation to industrial relations, the European Common Market, devolution or capital punishment, whatever it may be, there is no reason why the Scottish Assembly should be prevented from holding a referendum or plebiscite on a matter within its competence, if it wishes to do so and if it passes the necessary legislation. There is surely no danger that the Assembly could pass legislation to hold a referendum on a non-devolved matter, say the use of oil revenues or defence matters and by so doing bring pressure to bear on Westminster. When I last spoke on this matter I explained, I hope in some detail, that any such legislation would be open to challenge on vires grounds and, in addition, in Clause 35 there is the power of policy override in relation to Assembly legislation. The noble Lord, Lord Strathcona and Mount Royal, referred to the override power and said it would produce conflict. In the situation I am describing conflict would already be there.

As for the words "border polls", what might have been in mind here was that the Assembly should be prevented from conducting a poll on the issue of separation. But the Constitution of the United Kingdom is not a devolved matter and the Scottish Executive will have no powers to conduct a poll, or whatever one might call it, into matters which are not devolved. Thus, the addition of the words proposed are unnecessary in our view to achieve the purpose of the Lords' Amendment. It is an Amendment which, in any event, the Government oppose as placing an entirely unreasonable constraint in elation to devolved matters. If the Scottish Assembly within the devolved field wants to consult the electorate, how on earth can this non-elected House say that that is an improper instrument in a democracy? For these reasons I trust the noble Lord will not press the Amendment.

Lord FERRIER

My Lords, when the Minister writes to the noble Lord, Lord Wilson of Langside, would he quote one measure within the last 20 years, which is the length of my experience in this House, which has any similarity in constitutional importance to this measure which has been hurried through in this way at the fag end of a Session?

Lord DAVIES of LEEK

My Lords, I can distinctly remember one that was aggressive to the British Constitution; namely, the Common Market Bill. That rolled through this House disgracefully, without any change to a comma or a dot.

Lord BELSTEAD

That was not at the end of a Session, my Lords.

Lord STRATHCONA and MOUNT ROYAL

My Lords, I am bound to tell the noble and learned Lord, Lord McCluskey, that it is a pity he did not feel able to apologise to noble Lords for the unhappy procedural situation we find ourselves in. I cannot say I do not accept and recognise the necessity, and I should like to be able to put my hand on my heart and say we would never have done it. I should almost certainly be wrong if I did, and therefore I will not.

Lord McCLUSKEY

My Lords, before the noble Lord leaves that point, may I ask him whether he recalls that the right honourable lady who is the Leader of his Party appeared on "Panorama" on Monday night and informed the watching and listening millions that this Bill would be through both Houses of Parliament by the end of next week?

Lord STRATHCONA and MOUNT ROYAL

I do not recall that, my Lords, because I was busy here at the time, though I would not dream of arguing with the noble and learned Lord on a point of fact. I recognise the exigencies of the Parliamentary timetable; but he might have said, at least on behalf of his side of the usual channels, that it is unfortunate and that it puts a rather unjust burden particularly on those who do not have ready access to the people who have actually been involved in the other place. It is no use saying we have discussed this issue ad nauseam—of course we have, and "ad nauseam" is probably the right phrase for it. 'The fact remains that it was very difficult for people to discover what in fact happened in another place when Hansard for the hangover period, after 10 o'clock at night, was available only this morning. It really did put a number of noble Lords in a very difficult situation. Strictly speaking, that has nothing to do with this Amendment; it is a general observation which has cropped up. Two Cross-Bench noble Lords have made it. If I may say so, I think the noble and learned Lord was a trifle ungracious in not recognising the inconvenience to which they have been put.

Having got that off my chest and behind us, I did not really expect that we would get much change out of the noble and learned Lord on this Amendment. The embarrassing thing is that I find myself once again having to restrain one of my noble supporters on the Cross-Benches and disappoint him once more by telling him that in the interests of good government we on this side do not feel that it would be appropriate to press this Amendment to a Division.

Lord MONSON

Would the noble Lord not allow his Back-Benchers a free vote on this important matter?

The LORD CHANCELLOR

Is it your Lordships' pleasure that the Motion be withdrawn?

Amendment to the Motion, by leave, withdrawn.

On Question, Whether the House doth not insist on their Amendment No. 98 to which the Commons have disagreed for the Reason No. 99.