Referendums (Scotland and Wales) Bill

HL Deb 01 July 1997 vol 581 cc90-154

3.16 p.m.

The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Sewel.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 1 [Referendum in Scotland]:

The Chairman of Committees

I should inform the Committee that, if Amendment No. 1 is agreed to, I cannot call Amendment No. 2.

Lord Mackay of Ardbrecknish moved Amendment No. 1: Page 1, line 5, leave out ("such day as Her Majesty may by Order in Council appoint") and insert ("2nd October 1997").

The noble Lord said: This is but a small amendment to start the ball rolling on this important piece of legislation. It seeks to insert the date of 2nd October 1997. The other amendment linked to Amendment No. 1 will mean that the Welsh referendum will also be held on 2nd October 1997.

The Committee has probably noticed that I do not attempt to delay the referendum by putting in the year 1998, 1999 or even 2000. That is unlike pension splitting on divorce (about which we have just spoken), which will go on into the rather dim and distant future. It will pinpoint in all our minds when this important referendum is to take place.

Indeed, the Government might find it useful—I am always in the business of trying to help the Government in the new configuration of this Chamber—if they have a target date at which to aim for the White Paper, for example, and for all the preparations that will be necessary in order to conduct the referendum. It seems to me, therefore, that 2nd October might be a very helpful date for them.

Equally, we must consider all those people who will run the campaigns on this referendum. There is of course the potential for four campaigns in Scotland and one campaign in England—unless we accept some of the other amendments, when there will be the potential for many other campaigns in Wales as in Scotland. But essentially as the proposal is before us, we should have a "No, no" campaign, a "Yes, yes" campaign, a "No, yes" campaign and a "Yes, no" campaign. Those members of the Committee who are not too long away from school will remember the question about tossing two coins: heads-heads, heads-tails, tails-heads and tails-tails—and the chances of gaining the desired outcome on each of those events. The referendum in Scotland is a little like that. The referendum in Wales is simpler, at least for the moment, and only requires a "Yes" or a "No" vote.

So there could be four campaigns, with four campaign managers and four teams. They, it seems to me, need time and certainty about when the referendum will take place. Then there are all the returning officers and no doubt we shall discuss them in a day or two when we come to the schedules incorporated into the Bill, which were previously draft orders, draft orders which would have kept the Committee here well into August. It seems a little careless on the part of the Government to plan like that. But I feel that the returning officers would find it helpful to know that they are aiming for 2nd October. Then there are all our friends in television, radio, the press and so on who, equally, want to know how to plan.

The point about the next two months, August and September, is exactly that: they are August and September. They are holiday months, especially August. I remember that when I suggested that we consulted on some consultation document and I named the month of August as one of the two or three months during which the discussions should take place the reaction of the then Opposition was predictable: how dare I suggest that people could possibly meet in August and discuss these great issues, whatever they may be? But this is a seriously great issue: whether to say "Yes, yes", "Yes, no", "No, no", or "No, yes"—I confuse myself when I think of all the options.

This is a seriously great issue and in Scotland we are being asked to look at it during the month of August. While August may not be the peak holiday month for those resident in Scotland—I must not call them Scots; that appears to bring the accusation of ethnicity (I am happy to be called a Scot but perhaps that is politically incorrect nowadays)—many people in Scotland do take their holidays in August. Equally, a lot of people who are resident in Scotland are busy making money from people who take their holidays in August. They do not have time to consider the White Paper or all the literature that will be produced.

The month of August therefore is not the best possible month during which we should study this issue and vote. The noble Lord may tell me that the Government have not decided on which date we shall vote. I shall find that fairly amazing, but perhaps not surprising. I keep reading reports suggesting 4th September, 11th September, 18th September and even 25th September. In this amendment I propose 2nd October. I believe that that would give everybody a clear date towards which to work. It would also give those of us who are resident in Scotland the month of September and possibly part of August in which to study the issues and listen to the campaigns. It would give the people campaigning a proper time to campaign on this important issue.

I have little doubt that, when the referendum is over and if the Government side win that referendum, we will be told, when we analyse critically any Bill introduced afterwards, that the people have already spoken and we should not discuss the issue further; we should simply agree with what the Government are doing because the people agreed it in the referendum. In those circumstances, therefore, the referendum is extremely important. It will decide the tactics conducted both here and down the corridor by the government party.

Some Members of the Committee may think that I ought to have put the date as the first Thursday in November, or even perhaps the first Thursday in the new year. I have not checked my diary to see if that is New Year's Day. If so, it might be an appropriate day on which to hold the referendum. However, an end point would be a good idea and the end point I suggest would give us two months. We do not know when the White Paper will be published. I anticipate and hope that it will come during the course of this month, which will give us in this Chamber and those in the other place time to debate it. It will give my fellow residents of Scotland time to discuss the issues and listen to the arguments, taking into account any holidays that they may have. It will then give us time to assess what we should do before 2nd October.

I hope therefore that, for both Scotland and Wales where this is an extremely important issue, the Government will accept Amendment No. 1. Just in case they start in a negative frame of mind and do not accept the amendment, perhaps they will tell the Committee and the world at large—perhaps not the whole world at large but just the United Kingdom and particularly Scotland and Wales—on which date they intend to hold the referendum. I beg to move.

Lord Renton

I should have thought that the Government would welcome Amendment No. 1. It adds credibility to their intentions. In many statutes over the years power has been given to have an appointed day made by Order in Council, but such appointed days have sometimes never been appointed. That is because the Government decided, perhaps in order to implement a manifesto commitment or to raise hopes in the public mind when they have no intention of going ahead, to put the power into the hands of whoever makes the Order in Council—Her Majesty, of course, makes it on advice.

Surely it would be better to make the position clear, as my noble friend Lord Mackay said. If the Government say that they do not know when the arrangements will be completed for the holding of the referendums, I shall find that rather strange. Do they need more than three months to do that? They have the whole of July—today is the first—August and September. We are accustomed to elections and have even had referendums in this country. Surely the administrative machinery could be put into force and the printing done quite easily within three months.

I hope that the Government will realise that the amendment is in their interest. In relation to the date chosen, 2nd October, many of us know from experience that the climate in Scotland is often rather good at that stage of the autumn and the days have not become too short for people to travel if they have to travel to polling stations. It is therefore a sensible day. It would surprise me if the Government do not accept the amendment.

Lord Sanderson of Bowden

Looking at Amendments Nos. 1 and 23, I am not convinced by what the noble Lord, Lord Williams of Mostyn, said at col. 1223 on 17th June, when he said that a different day should be chosen for Wales as opposed to Scotland.

What has been learnt since 1979? It was all right then to hold referendums on the same day. It is quite clear that the issues are different—of course they are; one is to be a legislative assembly and the other is not. However, I am not convinced by what is proposed and I should like to hear what the Minister has to say as to why the days should be different.

Lord Thomas of Gresford

I oppose Amendments Nos. 1 and 23 for the very reason to which the noble Lord referred a moment ago. The amendments suggest that the same day should be chosen for the referendum in Wales as that for Scotland.

The experience in 1979 was that the national media— the press and television—gave twice as much coverage to the Scottish referendum as they did to the Welsh referendum. That is particularly difficult because, whereas more than 90 per cent. of the newspapers that circulate in Scotland are printed in Scotland, only 13 per cent. of the newspapers that circulate in Wales are actually printed in Wales. It is therefore essential, if the Welsh electorate are to have a proper opportunity to consider the issues that arise in the referendum that pertains to them, that there should be a period of time after the Scottish referendum when the national press and media can concentrate upon the issues in Wales. It is for that reason that I oppose those two amendments.

Baroness Ramsay of Cartvale

I confess that I am extremely disappointed in the speech of the noble Lord, Lord Mackay of Ardbrecknish. I had hoped that he would explain why he chose 2nd October of all dates. We heard generalities as to why he did not like September but did not hear why it should be 2nd October.

The 2nd October is a particularly bad date. It is Rosh Hashana—the Jewish New Year. I understand that no practising member of the Jewish community would vote on such a date. It would therefore be only proper for noble Lords opposite to withdraw the amendment. I am sure that they did not intend to disenfranchise the Jewish communities of Scotland and Wales and that the amendment was tabled in total ignorance of the significance of the date. I therefore ask that they withdraw the amendment.

3.30 p.m.

Lord Campbell of Croy

As regards the point that has just been made, I would be perfectly happy to make it a week later, provided it was also considered whether there was a Moslem or other holiday. I speak as the Patron in Chief of the Scottish Pakistani Association, which is by far the largest ethnic community in Scotland. So I do think that a week later might be better.

Perhaps I may remind the Government and the Front Bench spokesmen what happened on the last occasion. While the Scotland Bill was going through in this House I recommended that there should be at least a six-week interval. I am glad to say that that was accepted by the government. The referendum order came before both Houses on 5th December. That had already been published a week or two beforehand and it had the date of polling day—1st March. So on the last occasion both Houses and the country had at least three months' notice of the date. I just remind the Government Front Bench of what happened on the last occasion.

Earl Russell

Before I address the amendment I should like to take half a minute to congratulate the Welsh Conservative Party on its conversion to proportional representation. I think it is quite right. It has suffered a grave injustice that 20 per cent. of the vote has led to no representatives in Parliament. I simply hope that that conversion is for better, for worse.

I very much hope that this is a probing amendment. The noble Lord, Lord Mackay of Ardbrecknish, has many times across this Chamber lectured me on the virtues of flexibility. They are not quite as great as the noble Lord has sometimes argued but I have always conceded that they do exist. As soon as you fix anything finely in primary legislation, then you need primary legislation to reverse it.

Perhaps I may take a hypothesis which is not in fact quite impossible. Suppose there was an earthquake. There has been a serious earthquake in London. There could be one in Edinburgh. It would be a considerable inconvenience to have to put through new primary legislation to alter the date of the referendum. It is that kind of inflexibility which one suffers if one puts things into primary legislation that are really too small to belong there. As to why the noble Lord took the date of 2nd October, I am tempted to a perhaps unworthy suspicion that he did it because 3rd October to the Anglo-Saxons was a notoriously unlucky day.

Baroness Carnegy of Lour

It seems to me that the important point about the amendment is not the specific date but that there should be time between the publication of the White Paper and the date of the referendum. That really is important. It is important because not only do the voters have to become acquainted with what is in the White Paper so that they will know what they are voting about, but those who will have an opinion on the subject which might enlighten the voters need to know too.

I was surprised when I telephoned the Convention of Scottish Local Authorities to ask whether it had anything to say about the timetable. The person to whom I spoke said that the convention had no view on that; all it wanted was a referendum as soon as possible. That strikes me as very strange. I do not think that the convention can have thought very much about what will be in the White Paper unless it knows—it may know already—and thinks that it does not matter. It seems to me that it is likely to affect the convention very much and that the voters will need to know what it thinks about the matter. The Law Society of Scotland, to which I also spoke, told me of one or two concerns it has about the referendums Bill and the White Paper, but it, too, did not have a view about the timetable.

The schools in the area where I live are sending their children home tomorrow. A good many local authorities in Scotland will be sending home their children tomorrow; others will be sending them home a week or perhaps two weeks later. Where I live they are coming back on 18th August. In Scotland, 4th August is a bank holiday, so it stands to reason that many families will take their holidays in the last week of July or the first or second week of August. That means that whenever they are going away, whether now or in the next two or three weeks, they will not see the White Paper until they come back. There will be a very short time during which they can study the White Paper.

Likewise, many people who are councillors or lawyers tend to take their holidays slightly later because they are interested in what is going on in Parliament. They do not want to be away when it happens. They will be at home when the White Paper is published but they will not be available to advise the public when the public comes home. There is quite a long spell when people will simply not be there.

The most important point of all about the referendum is that people should know what they are voting about. Later in the Committee stage we shall be discussing other aspects of that question, but the timetable really matters. I understand the problem about 2nd October. I have to say that 9th October is a time when my part of the world will probably be having potato holidays, so it is all very difficult. There must be time between the two dates. When we hear the date of the publication of the White Paper, it will be very much easier to discuss the issue.

Lord Tebbit

We are engaged in a slightly academic and artificial debate and the matter could be cleared up very quickly indeed. I am in favour of a degree of flexibility in these matters. The noble Earl has put the argument for that well. However, we are all proposing to celebrate the millennium on a date which I think was fixed a couple of thousand years ago, so one should not go overboard on that argument.

One has to be careful about dates at the beginning of October. As we know, the beginning of October is the occasion for those festivities of the conferences around the seaside. No doubt they will be particularly interesting this year, so we should not keep people away from those.

The essence of the argument which my noble friend put and which I think is in the minds of all Members of the Committee is that there should be proper time between the publication of the White Paper and the actual referendum. If we could be given some guarantees about that we would be able to reach a conclusion on this amendment very quickly indeed. That would enable us to get on with other more interesting amendments.

Lord Mackie of Benshie

I could not agree more with what the last speaker has said—that we might get on to the other amendments. Whether they are interesting or whether they are there for a different purpose I would not know.

The argument that we need to have time in Scotland to think about the referendum is curious. Everyone except the Conservative Party seems to know that Scotland has been thinking of little else for the past few years. That is probably why the Conservative Party does not have a seat left in Scotland. It does not know what people are thinking. The referendum was put in as an extra precaution by the Government, who are far too over-cautious about it in my view. However, they are putting it in now, and the sooner we get the Bill through the better. I hope that the noble Lord, Lord Mackay of Ardbrecknish, will not take seven minutes to introduce every trivial amendment he has tabled.

Lord Simon of Glaisdale

I have put down an amendment, which appears later in the Marshalled List, making the dates of the two referendums identical. Although it has not been grouped, the debate has obviously gone over that ground. It is very important that the dates should be identical because the one that is held earlier may influence the later one, particularly if it is a larger vote than the later one. It is the Eatanswill principle which your Lordships may remember—shout with the mob; and if there are two mobs, shout with the larger one. It is exactly the same principle which in some European countries precludes opinion polls for a week or a fortnight before an election—because people tend to vote with the larger mob.

The noble Lord, Lord Williams of Mostyn, who has taken to the Treasury Bench as if he had been born in a Dispatch Box, said at Second Reading—I hope that Members of the Committee will excuse me while I use a magnifying glass— There are different issues to be addressed and we believe that since there are discrete issues, the Scottish referendum ought to precede the Welsh one".—[Official Report, 17/6/97; col. 1223.] It would have been equally cogent to say, "Since there are different issues we believe that the Welsh referendum should precede the Scottish one". When the noble Lord, Lord Williams of Mostyn, looks back at the end of a very distinguished political and legal career, I cannot believe that he will think that that was one of his most cogent arguments.

That is the reason why the dates should be identical. It is precisely because the earlier referendum with the greater number is likely to influence the later one. Whatever the Government feel about the date, I hope that they will at any rate agree that the two referendums should be held on the same day. As regards the rest, I agree entirely with the noble Lord who said that the important thing is that there should be sufficient time between publication of the White Papers and the referendums.

I have been following what the critics recommend about summer and holiday reading: none has recommended either of the White Papers.

Lord Crickhowell

I had not intended to speak at this stage, but I am encouraged by the speech that we have just heard to comment on two points. I will come back later to the powerful arguments for holding both referendums on the same day and for having adequate time before the electorate is asked to consider the issues after the White Papers have been published.

I am really prompted to my feet by the fact that the Liberal Democrat party now seems to believe that it has joined the Government Benches and spends most of its time doing the work of government Ministers. I am prompted to comment by two speeches that we have heard from the Liberal Democrat Front Bench in the past few minutes. One suggests that there is no need to have these debates because everyone in Scotland knows exactly what is going to happen. I am not speaking about Scotland, but I do know a little about Wales.

The truth is that no one in Wales knows exactly what is going to happen if only because the Government themselves do not yet know how the thing is going to work and have certainly not been able to draft a White Paper yet which will explain all the details. The publication of the White Paper in Wales is an absolutely fundamental requirement if the Welsh electorate is to understand what is going on.

We do not want a misleading view of history recorded by the noble Lord, Lord Thomas, about what happened last time. Of course I accept the fact that the Welsh press printed in Wales is read by about only 13 per cent. of the electorate in Wales. Indeed, I made the same point when we last debated this matter. If the noble Lord really believes that the issue was not adequately debated in Wales last time, he is wrong. The issue was very vigorously debated. How could it not have been when Mr. Neil Kinnock, Mr. Leo Abse, Mr. Donald Anderson and a whole string of other leading Labour politicians featured in the media almost daily? The reality is that the matter was very fully debated. I made a string of appearances around Wales in one form or another. I can assure the noble Lord that whatever he may have been doing at that time the people of Wales were very fully debating the issue. I see that the noble Lord, Lord Elis-Thomas, nods in agreement. So let us not perpetrate a myth at this early stage in our debate. We must have adequate time in Wales for proper consideration of a White Paper which has not yet been published for the very good reason that I do not believe the Government have decided yet what is going into it.

Earl Russell

I ask the noble Lord, Lord Crickhowell, to take note that the degree of apparent agreement between these Benches and the Government Benches is very largely the achievement of the Conservative Party and were Mr. Malcolm Rifkind, for example, leading for the Conservative Party, we might be having a very different and much more interesting debate.

Lord Ewing of Kirkford

I wish to make clear that I share the views of all Members of the Committee who have spoken. We need adequate time between publication of the White Paper and the holding of the referendum. Where we part company is that I am absolutely and totally confident that there will be adequate time between publication of the White Paper and the date of the referendum as it is being considered by the Government at the present time.

What astonishes me is the attitude of Members of the Committee opposite in asking for adequate time for a long campaign. I thought that they had learnt a lesson from long campaigns. When one looks at the history of general elections in this country, campaigns normally run for three weeks until polling day. The general election date this year was the brainchild of Conservative Central Office. It said, "We shall have a six weeks' campaign and we shall really get our message across. People will understand and they will re-elect us". Tory MPs are as scarce as hens' teeth in both Scotland and Wales after a six weeks' campaign. I believe that Members of the Committee opposite should exercise just a wee bit more caution when they talk now about the length of the campaign, given the background of their bitter experience of a long campaign earlier this year.

Lord Campbell of Alloway

My Lords, what is the objection? Is it that the date is too early or too late? Or is it that there is a date at all? Is that the objection and the reason for it, as was said by the noble Lord, Lord Sewel, at Second Reading in another context, that it ties the hands of government? If that is the objection, then in these circumstances it is about right that the hands of government should be tied.

3.45 p.m.

Lady Saltoun of Abernethy

My Lords, I very much hope that the noble Lord, Lord Sewel, will be able to tell us the proposed date of the referendum and of publication of the White Paper before we abandon this amendment.

We are having a referendum not on whether we are to have an Act to give schoolchildren free sweets or something like that but on a very far-reaching constitutional change which is going to affect the whole of the United Kingdom, not only Scotland. So what on earth is all the hurry about? It seems to me that a matter of this kind should be given very serious consideration not only by Parliament but also by the people of Scotland and Wales who are to vote in the referendums. They should have plenty of time. I have heard rumours that the White Paper will be published only towards the end of this month and that the referendum is to take place in early or mid-September. If that is true, then I do not consider that there is anything like adequate time for people to take in the contents of the White Paper and consider them.

Lord Rees

I have no doubt that many of our debates for the next few weeks on this issue will have echoes of what happened 20 years ago. Many Members of the Committee in this Chamber recall with painful clarity what happened then. But, of course, there is one fundamental difference. Twenty years ago, we came to a referendum after something like six or eight months of careful, detailed debate about the precise form of devolution which should obtain either north of the Border or west of Offa's Dyke. In this case we are being asked to approach the issue with nothing more than a few scrappy words in the course of the election campaign. I do not believe that that is a serious basis for serious legislation in this Parliament.

I am not over concerned with the agricultural, climatic or even religious implications of 2nd October. I am afraid that I am uninformed as to what the Druids would have thought about any particular date. But I am concerned that some of us would like to take an active part both in this House and outside. I must confess that I played a minor role 20 years ago, although it was nothing like as strenuous or distinguished as the role played by my noble friend Lord Crickhowell. Perhaps I may say to the noble Lord, Lord Mackie of Benshie, that in Wales we have been a little less self-absorbed than some of our friends and relations north of the Border. We have not been talking day and night about the precise form of an assembly and what its powers and occupation should be. We should like to know long before we move to that kind of issue, either at Westminster or west of Offa's Dyke, exactly what is to be in the White Paper. What sort of assembly are we to have? What will be its powers and what sort of prerogatives will it be endowed with?

There are three critical dates. The first is the date of the White Paper. If the Government are serious about a referendum in the early days of the autumn—we hope very much that the noble Lord, Lord Sewel, will disclose the Government's hand on those critical points fairly soon—when will the White Paper be published? When shall we have an opportunity to debate the White Paper? A White Paper does not have legislative significance. It is merely a few suggestions. Or, in view of the slight tinges of arrogance which have been manifested by this Government, is it perhaps a diktat which we are bound to accept? Of course, it is not. Indeed, the expression on the Minister's face is such that it shows that he will be open to argument. When are we to have the White Paper and when are we to have an opportunity to debate it? How many days will there be for debate on the White Paper? And how long after that before the referendum in either country takes place?

The noble and learned Lord, Lord Simon of Glaisdale, who is much more qualified to do so, raised the issue of whether the referendums should be on the same date in both countries. I shall not touch on the almost insulting issues as to where the bigger mob is—north of the Border or west of Offa's Dyke—or whether my compatriots west of Offa's Dyke are likely to be influenced by what is said in Inverness or—dare I say?—in Orkney and Shetland where there may be a rather interesting outcome.

I support the amendment not because I am wedded to the date of 2nd October but because I want to know when the White Paper will be published for our inspection, when we shall have an opportunity to debate it, and how long will ensue afterwards before we have a referendum either in both countries or in one country.

Lord Peston

I hope Members of the Committee will forgive me for joining in the debate. I came in solely to listen as a way of passing the afternoon. I had no intention of coming out of hibernation in order to address the Committee. I assure Members opposite that I shall return immediately to hibernation. However, I have found what has been said interesting or irritating; I am not sure which.

As regards the question of time, we should pause and think. I sat on that Bench over there for 10 years and I must have used the same argument countless times. My record of being rejected was exactly 100 per cent. Members of the Committee opposite will get used to that kind of rejection over the next decade. I can tell them that you live through it and you just about maintain your sanity. Therefore, I hope that my noble friends do not remotely fall for that one or, if they do, I should like them to explain to me afterwards why they have done so when we failed so often ourselves.

However, my main interest is to ask the noble Lord, Lord Mackay of Ardbrecknish, or the noble Earl, Lord Lindsay, whether I am right about the consequences of what they are saying. In particular, do they now accept that there should be referendums? Is it now Conservative policy that the party supports the referendums and therefore supports this Bill? If that is the case, they will withdraw a number of amendments which are totally destructive so that we can all go home earlier. I really do want to know whether they now accept the referendums.

As regards the four outcomes, I do not wish to be as nasty as my noble friend Lord Ewing but there was a general election and I believe the population of Scotland and Wales did pronounce to a moderate degree on the matter. I ask whether the party opposite will accept categorically the outcome of the referendums when they occur. I take it that my noble friend will say that we certainly shall. Given the nature of the argument and the way in which certain Members of the Committee have spoken, do I understand that we need have no doubt whatever about that? I do not believe that the question of the date is the most important problem that has ever confronted your Lordships' House. I certainly agree with my noble friend Lord Ewing that we must have ample time for debate. On the other hand, without boasting intellectually, I do not believe that months and months are required for even the thickest of us to absorb the issues. I want to know whether the party opposite will accept the outcome because that is quite fundamental to what we are about. If there is doubt about whether it accepts the referendums and their outcome, I do not know why Members of the Committee opposite are wasting our time.

Lord Tebbit

Before the noble Lord sits down, did he accept the outcome of the referendums last time? If so, why is he supporting all this again after the experience of 20 years ago?

Lord Peston

Yes, we did accept the outcomes last time. A great many years went by. I must remind the noble Lord that we were in opposition for quite a long time. I grew old during that period. There was a young man here originally. If the referendum goes our way, and if after 18 years the party opposite is back in power—and I do believe in the two parties taking it in turn—and it wishes to raise the issue again, although I shall not be around to listen, I believe that that would be perfectly in order.

Lord Simon of Glaisdale

I should like to say a few words in relation to the interesting question raised by the noble Lord, Lord Peston, as to whether the Government and Parliament will accept the result of the referendums or either of them. In my respectful submission, the constitutional position was stated correctly by the noble Lord, Lord Glenamara, as Leader of the House in the other place at the time of the 1970s referendums. He said that a referendum binds a government but it does not bind Parliament. He must have meant that it binds a government morally. It does not bind Parliament so long as we have parliamentary supremacy. It is a matter for Parliament to take into account and it is a completely novel doctrine that Parliament will be bound by the result of a referendum. We would be abnegating our responsibilities.

4 p.m.

The Earl of Onslow

The noble Lord, Lord Peston, advances an extremely novel political doctrine. He states that the constitution can be changed now but that, heigh-ho, if someone wants to change it at another time that is all right. The noble Lord referred to a period of 18 years, but one must remember Abraham and Sodom and Gomorrah. He went from 95 to five, if I remember rightly. Why not change it in three years? If that is too short perhaps five years is all right. It is irresponsible to suggest that we should treat the constitution of the United Kingdom in this way. It is said that it is all right to do it now and perhaps it can be changed again in 18 years. It is irresponsible of the Government to treat the constitution of the United Kingdom in this way. It is good and great and should be cherished and looked after.

Earl Russell

I regret to say that the noble Earl is incorrect in saying that this matter is unprecedented. We need only look at the history of Reform Bills in the 19th century. When my great-grandfather introduced one in 1832 he believed that it was final. He was wrong.

Lady Saltoun of Abernethy

It is all very well for the noble Lord, Lord Peston, to say that even the thickest of us will be able to understand what is in the White Paper. The trouble is that the noble Lord is a very clever man. I do not believe that he has any idea what it is to be thick.

Lord Peston

I knew before I entered the Chamber that I should never have come here today or joined in this debate. I must inform the noble Lady that I have been teaching for 40 years and I know all there is to know about what it is to be thick.

Lord Sewel

I start by acknowledging the friendly and constructive spirit in which the noble Lord, Lord Mackay of Ardbrecknish, moved his amendment. I am afraid that I must tell him that normal service has been partially resumed from these Benches. Therefore, I am unable to accept the amendment, sad as that may be to the noble Lord and his noble friends.

The Government are well apprised of the need to ensure adequate time between the publication of the White Paper and the vote on the referendum itself. We have made clear that the White Paper will be published and debated in this House before the Recess. I echo the words of the noble Lord, Lord Mackie of Benshie. That will come not after two months but about 20 years of consultation and debate certainly in Scotland and, albeit to a lesser extent, in Wales as well.

Viscount Cranborne

Perhaps the noble Lord will allow me to intervene. Is he able to inform the House whether his undertaking means that noble Lords will be given the opportunity to debate the White Paper before the final passage of this Bill?

Lord Sewel

I add nothing further to my statement that the White Paper will be published and the debate will take place before the House rises.

A number of noble Lords referred to the lack of a gap between the Scottish and Welsh referendums. I believe that that is a matter to which we should properly return on later amendments. I acknowledge that we have not so far announced the dates of the two referendums. That is not the result of any desire to be obscure; it is based on a desire to be a little better informed about the date when this Bill is likely to receive Royal Assent. In that way we can ensure that there are early referendums consistent with providing adequate time for the necessary practical preparations to be put in place, for public debate on our proposals and for the referendum campaigns to galvanise the debate in the two countries.

The amendment that suggests the date 2nd October seems to me to be moved with a degree of mischievous frivolity, which is perhaps unintended. The noble Lord, Lord Mackay, may not have in his diary the fact that 2nd October falls during the Labour Party conference. I do not for a moment claim that this degree of frivolity equals anything like that exhibited in another place when this Bill was discussed, but it makes the point about the difficulty of taking the date of 2nd October. I believe that the very powerful point made by my noble friend Lady Ramsay underlines the total unsuitability of focusing on one particular date. Quite simply, it is the wrong date.

We fully intend to hold the referendums before the major party conferences. However tempting and seductive noble Lords opposite may be, I will not however be pressed into setting a date for the referendums at this stage. One of the main reasons for that is that it is not yet clear when the Bill will receive Royal Assent. In our view it would be premature at this stage to speculate on possible dates.

It has been indicated that perhaps this amendment is a probing amendment. If I may take it in the spirit of a probing amendment, I happily undertake that when we return to consider the Bill at a later stage—Report stage on the basis of the currently envisaged timetable—the Government will inform noble Lords of the proposed dates for publication of the White Papers and the holding of the referendums. I hope that noble Lords can wait just that little bit longer and accept the undertaking that I have given in the helpful spirit in which it is offered.

The Earl of Lauderdale

Before the noble Lord sits down, can he answer one question that has not yet been covered by the noble Lord, Lord Peston? Supposing the Scots vote for a Scottish parliament but against the tartan tax, what will the Government do?

Lord Sewel

Having decided on a process that involves consulting the people, it would be perverse to turn our heads away from the judgment of the people.

Lord Fraser of Carmyllie

As the noble Lord will appreciate, I have always considered that the more important time in relation to this debate is not when the Bill finally completes its passage through your Lordships' House and Parliament but the period which elapses from the publication of the White Paper to the date of the referendum. Clearly, that is the document on which any serious and rational debate will proceed in Scotland. I shall not rehearse the problems about serious professional organisations in Scotland trying to study that paper during August. Do I understand correctly that it is only at Report stage that we will be told the date of the publication of the White Paper? Further, do I understand correctly that the referendum will be before the party conferences? Otherwise stated, it seems to me that both could take place during September. Am I right in understanding that 4th September is already the Government's preferred date? If that is the case, is that a reasonable period?

Lord Sewel

The noble and learned Lord seeks to seduce me. I have said that I will not be seduced. I have made it clear that I shall remain virtuous. I will go through it again. On the basis of the current timetable, I give the undertaking that the Government fully expect to come to the House by Report stage and indicate the date of publication of the White Paper and the date of the referendum.

Lord Tebbit

It seems to me that this debate takes on an extraordinarily unreal air. Quite clearly, the noble Lord is now aware of the date on which he expects the White Paper to be published. Why can he not tell us? He has informed noble Lords that he will tell them when Report stage is reached, but it is unlikely that there is anything in the discussion on this Bill that will affect consideration of when the White Paper is to be published. What has happened to the past attachment of the party in government to freedom of information? Somewhere within the noble Lord's department is a document bearing a date. Why should we not know what it is? That is not a matter affecting state security. It may affect relationships within the Labour Party—between Ministers and their Back Benchers—which I understand are a little turbulent at times, but surely he could tell us that. If his detestation of open government is such that he is unwilling to do so, perhaps he could bring himself to tell us what he defines as the meaning, in this context, of the words "adequate time". Is "adequate time" one week, 10 weeks, or 12 weeks? Surely it is not unreasonable that, when a Minister is asked what is "adequate time", he should tell us. He must know. If he does not know, he could not use the words. If he does know, why should he conceal from us the meaning which he attaches to them?

Earl Russell

The noble Lord said that somewhere in the Minister's office there is a document with a date on. How does he know that?

Lord Tebbit

Having been in government for eight years, I know those things as of experience. I can recollect many occasions when I have had documents with dates on, and for my own reasons at times I would rather not have exposed them. But I can see no good reason why we should not now know that date and the meaning which the Minister puts to the words "adequate time".

Lord Mackie of Benshie

The noble Lord has only to look at the clock to know why the Minister cannot answer. If we go on like this, it will be 1999 before we pass the Bill.

Lord Mackay of Ardbrecknish

We have had an interesting debate. As the noble Lord, Lord Mackie of Benshie, has drawn his presence to my attention, perhaps I might return to what he said. He described the amendment as trivial. Has he looked at the amendment in the name of his noble friend Lord Mar and Kellie to which we shall come later? When we come to that will he explain how it can possibly be a serious amendment when the date upon which the referendum is to be held is considered to be trivial?

Lord Mackie of Benshie

At least my noble friend's amendment will be interesting without being nasty.

Lord Mackay of Ardbrecknish

There is nothing nasty about my amendment. I am trying to help the Government by pinning a date to this important referendum. I shall not hurry up as I am being urged to do by the deputy unpaid Chief Whip for the government Benches who is sitting along the row from me.

We have had an interesting debate. As the noble Lord, Lord Mackie of Benshie, has tempted me, it will be interesting to see the Liberal Benches putting down the amendment that Mr. James Wallace put down in the other place and took to the vote, because he thought it was serious enough. I notice that it has failed to appear on the Order Paper in this place. That is a pity, because with all due respect to the noble Lord, Lord Mackie of Benshie, it was a serious point that was addressed by Mr. James Wallace. Unless I am persuaded otherwise in an hour or so, I do not believe that the amendment in the name of his noble friend Lord Mar and Kellie can be described as serious.

This is a serious point. We have drawn some interesting points from the Minister and from the Benches opposite. I should have known that the basic reason for not having the referendum on 2nd October is that it is during the Labour Party conference. It is a pity that the noble Baroness, Lady Ramsay of Cartvale, did not have the hymn sheet adjusted, because is it not ridiculous that the Labour Party conference is being held at a time when some of her Jewish fellow citizens will be unable to go to it because they have more serious business to do?

Baroness Ramsay of Cartvale

I wish to make two points with which I believe the noble Lord will agree. First, I made a serious point about the Jewish New Year and the issue of voting. Secondly, there is big difference between conferences and meetings to which people of any religion can decide whether to go, the demands and rules of their own religion, and holding a national referendum in Scotland and Wales on a day when it would be known that practising members of the Jewish community would be unable to vote. I am sure that the noble Lord will agree with me that there is a big difference.

Lord Mackay of Ardbrecknish

Perhaps I may give help and advice to the noble Baroness; I suspect that in those circumstances she would find that people would be entitled to postal votes, which would solve the problem. Perhaps I might advise the noble Baroness not to dig too great a hole for herself. It is possible that the Government may be forced to have a referendum on 2nd October, if the White Paper's publication is delayed and it does not appear on the date which still appears to be unknown. I shall leave that aside. I should be happy to return with an amendment for 9th October, despite the fact that that is during the Conservative Party conference.

Lord Hailsham of St. Marylebone

That is my birthday.

Lord Mackay of Ardbrecknish

My noble and learned friend indicates that that is his birthday. That is an even better reason for having it on 9th October. I shall pick up one or two of the points that have been made. The noble Lord, Lord Peston, to whom it is always interesting to listen, suggested that the amendments were destructive. I do not believe that they are.

Lord Peston

I did not mean that these amendments were, but unless I missed the point I felt that several of the later amendments did not have the constructive quality that I would normally associate with the noble Lord, Lord Mackay of Ardbrecknish.

Lord Mackay of Ardbrecknish

None of the amendments in my name would prevent the Government from having a referendum on 2nd October or at any time in September, as is their current plan. The noble Lord asked whether we would accept the outcome. He was well pulled up by my noble friend who asked him whether the Labour Party had accepted the outcome of previous referendums. My recollection is that the Labour Party continued to campaign against the European Community long after the 1975 referendum, for example, was decided. I do not want to go into that. We shall shortly be having a debate on whether or not the referendum should be advisory. That might be an important debate to which the noble Lord, Lord Peston, could contribute.

The noble and learned Lord, Lord Simon of Glaisdale, pointed out to the noble Lord, Lord Peston, that the idea of the referendum was that it was advisory and could not bind Parliament. That is a serious point which we should address in the general context of referendums, not just this one. The Committee will appreciate that I shall be returning later to the general question of referendums and the rules that we should have for them.

My noble friend Lord Campbell of Croy reminded the Committee that three months' notice was given on the previous occasion. If I may follow the noble Lord, Lord Ewing of Kirkford, a little, that may be why the Labour Party wants to make the period as short as possible: to see whether it can win this one, because on the previous one it did not do as well as it thought it was going to do.

Some Welsh points were made in relation to Amendment No. 23. The noble Lord, Lord Thomas of Gresford, made an interesting contribution. We will no doubt return to the point. Just to establish the position— if I understand it—the noble Lord holds his fellow Welshmen in such low regard that he does not believe that they will be able to consider the issue while the Scottish referendum is going on because of the din about the Scottish referendum that will be coming from north of the Border. The Welsh will not be able to block off the Scottish aspect and concentrate on the Welsh bit. I have a great deal more confidence than the noble Lord in the ability of the Welsh to see through the whole proposition.

Lord Thomas of Gresford

I think that the Welsh people will see through the remarks that the noble Lord is making now.

Lord Mackay of Ardbrecknish

If they read them, I hope that they will see that the point that I am making is in defence of them and against the noble Lord, who seems to think that they will be unable to consider this issue at the same time as the Scots. The only temptation for having the Welsh referendum on a different day is to allow all those excellent Labour MPs from Wales who have not signed up to this scheme the opportunity freely to express their views away from Westminster and the power of the Labour Party Whips down the corridor. That is an issue that is running at the other end of this Palace, and perhaps we need not go into it too much here.

We have been told that the Labour Party has been thinking about this for 18 years. There has been this constitutional convention. The noble Baroness, Lady Ramsay, is a chairman of it. The noble Lord Ewing of Kirkford, is a former chairman of it. The noble Lord, Lord Steel, was its chairman. They spent hours and weeks on it. Acres of trees must have been cut down for it. It has been reported copiously in the press over the past six or seven years, I suspect. Yet, here we are and the Government still do not know whether they have a White Paper to present to us. The only conclusion that one can reach, is that they do not have a White Paper ready. I can understand if it is at the printers or at the proof stage—at least one can have some idea of it—but the Minister said that on Report he would tell us the date of its publication.

It may be of great interest to your Lordships to know that that puts it well into the 20s of July. I presume that we will have a week, with a weekend included, to consider the contents of the White Paper before we come to debate it. Therefore, those Members of the Committee who have arranged their holidays for the first week in August, and whose holiday plans I have attempted to protect elsewhere in the Marshalled List, may well have to cancel their holidays and be here to debate the White Paper. I do not find that satisfactory.

I believed that we would see the White Paper before the Report stage, not because its detail should be debated before then but, looking at a sensible timetable, because we could debate it before the end of July, which would allow both Houses of Parliament to rise. I am disappointed that the noble Lord is telling us that the publication of the White Paper is further away than I thought. I hope that it will appear around the Report stage, preferably before.

I believe that the noble Lord said that he would tell us the referendum date then. Being mindful of the many lessons I received at the knee of the noble Earl, Lord Russell, about the importance of primary as opposed to secondary legislation, if on Report the Government know when they want the referendum, perhaps they will table their own amendment along the lines of mine, inserting their date. Flexibility is not needed for a one-off referendum. I would have accepted the noble Earl's argument if he had been talking about referendums in general, but we are debating a specific Bill. It was part of the Labour Party's manifesto, which we know is pretty Holy Writ, that a referendum is to be held in the autumn. I do not see why 2nd October is such a bad day, but I shall not put it to the test. I should hate to deprive the Benches opposite of the pleasures of the Labour Party conference by keeping them in Scotland and Wales attempting to propound the arguments in favour of a "Yes" vote. I beg leave to withdraw the amendment, although I hope that on Report the Government will bring forward an amendment to primary legislation.

Amendment, by leave, withdrawn.

4.15 p.m.

Lord Mackay of Ardbrecknish moved Amendment No. 2: Page 1, line 5, leave out ("Her Majesty may by Order in Council") and insert ("the Secretary of State for Scotland may").

The noble Lord said: The amendment invites the noble Lord, Lord Sewel, to say a few words about how we shall know about the date of the referendum and how it is to be enacted. I have suggested a way in which he can do that. As this is a probing amendment, perhaps he can explain why he has chosen to do it by Order in Council as opposed to my suggestion that the Secretary of State for Scotland should make an order.

At the risk of incurring the wrath of the noble Lord, Lord Mackie of Benshie, I wondered whether the noble Lord, Lord Sewel, fancied a visit to Balmoral during August in order to attend a meeting of the Council to deal with the issue. I suggest that the matter can be dealt with simply by the Secretary of State making the order or, as I have suggested, by the Minister coming forward on Report, or even at Third Reading, and tabling an amendment which lays down in primary legislation the date or dates on which we shall have the two referendums. I beg to move.

Lord Sewel

I am somewhat at a loss as regards the distinction which the noble Lord is trying to make between the phrases "Her Majesty may by Order in Council" and "the Secretary of State for Scotland may". If at this stage he is laying the grounds for an argument that it would be appropriate to dispense with the orders and to incorporate them into the primary legislation, I am able to respond to him. At this stage I seek that degree of clarification from him.

Lord Mackay of Ardbrecknish

I am not seeking to do that; it arises later in a substantive amendment which brings them all together. I am simply inviting the noble Lord to tell me why it has to be an Order in Council. If he is saying to me that it is tied into the other orders—and I suggested a way in which we might deal with them—I am happy to leave the matter there and withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Campbell of Croy moved Amendment No. 2A: Page 1, line 6, leave out ("a") and insert ("an advisory").

The noble Lord said: Members of the Committee will notice that the amendment is starred, although I submitted it last Thursday in the early evening when the House was still sitting. Apparently, it became stuck in the tabling process and was found and rescued only yesterday morning after I telephoned to find out what had happened to it. Although Members will have seen it only for the first time today, it is simple and a probing amendment.

On Second Reading I said that I understood that the 1975 referendum on staying in the EC and the 1979 referendums in England and Wales were advisory to Parliament. The noble and learned Lord, Lord Simon of Glaisdale, commented on that today in respect of an earlier amendment. Can the Minister confirm that this referendum is also advisory in character? Is it intended that the Government, having obtained the approval of Parliament, should decide on appropriate action when the referendum in Scotland has taken place? That would be important if the result were close or if there were a low turnout.

However, the Government have made it clear that the object of a pre-legislative referendum is to obtain a green light from the electorate in Scotland before spending much valuable parliamentary time and enlisting the energy and labour of many civil servants on what has to be a complex and intricate scheme for a new parliament. Of course, a referendum after legislation is passed, as happened previously, would be preferable and more indicative of considered opinion in Scotland. I hope that that is still an option.

The Government's reply might be that the result will not be close. The media and opinion polls in Scotland indicate that about 60 per cent. of the Scottish electorate is in favour of what is known as devolution—the general idea. I can remember a similar situation in 1976 and 1977 when about 70 per cent. of the population was reported as being in favour of the idea of devolution. In the 1979 referendum on the Scotland Act, the legislation that had been passed, the percentage in favour was only 33 per cent., with 31 per cent. against. The Labour Government of that day had approved the insertion of a 40 per cent. threshold in their Scotland Act, so under their own terms it had to be repealed. As regards this Bill, it appears that a simple majority, however small, is to be effective.

In those circumstances, I suggest that the status of the referendum should be advisory to Parliament. There are proposals in Amendments Nos. 50 and 83 on how the results might be treated. We can discuss those in due course. However, they appear much better than the threshold provisions in the Labour Government's 1978 Scotland Act. They apply to the number of electors who have voted in the referendum and not to a percentage of the electorate. The electorate is always difficult to assess precisely owing to deaths, moves and other factors.

I am not pressing for the word "advisory" to be included in the Bill. I shall be satisfied if the Government make it clear that that will be the status of the referendum. I am very glad to see the noble Lord, Lord Kirkhill, in his place because I should like to record how extremely helpful he was in 1976 and 1977 when he was Minister of State at the Scottish Office and had to deal on behalf of the Government with the Scotland Act and the subsequent orders dealing with the referendum. He did accept a number of proposals, including some of mine, particularly, as I mentioned earlier, the minimum interval of six weeks. So in those days in opposition our proposals were not always rejected, as the noble Lord, Lord Peston, suggests. We were successful in getting quite a lot of amendments accepted and I would like to say that the noble Lord, Lord Kirkhill, made a great contribution to our debates and he was prepared to accept a number of our proposals. I beg to move.

4.30 p.m.

Lord Campbell of Alloway

It is not the intention to press for the word "advisory" to be put into the Bill. Having listened carefully to what my noble friend Lord Campbell of Croy has said, I think his anxieties are reflected by what the noble Lord, Lord Sewel, has already said. At Second Reading, in col. 1113, he said, accurately: Parliament will of course remain sovereign. It will be for the Government and, ultimately, Parliament to reflect on the result of the referendums."—[Official Report, 17/6/97; col. 1113.] "Reflection", I take it, encompasses "advisory" and so there appears to be really nothing between the Committee so far on this.

Lord Kirkhill

I wonder if I might intervene very briefly. I had not intended to do so, but the noble Lord, Lord Campbell of Croy, has mentioned me in his remarks, and they were indeed complimentary remarks, or so I take them to be. Perhaps I may say to the Committee quite quickly that 20 years ago I was faced with a significant phalanx, including the noble Lord, Lord Campbell of Croy, the noble Earls, Lord Onslow and Lord Lauderdale, and numerous other Peers too many to mention. I was absolutely terrified, and I gave in far too readily, I think.

Lord Renton

The importance of this matter depends very much upon the view that we take of abstentions. Votes on a referendum in which there is merely a vote for or against are different from those votes which take place in a parliamentary election, when there may be at least three parties contesting with each other and a number of candidates involved. Abstentions are therefore of less importance on those occasions, but in a referendum, the essence of which is whether one should vote for or against or not vote at all, the effect of abstaining is exactly the same as voting against. May I give some figures in order to illustrate this? What happened in 1979 bears this out.

Let us suppose that 35 per cent. of the people of Scotland or of Wales vote for a parliament, and supposing 30 per cent. vote against, there would be perhaps another 20 per cent. who might feel that it is not necessary to vote because they are not voting "for". Therefore we would find the position that only 35 per cent. of the people were in favour and 50 per cent. were in fact against but did not all trouble to vote: 30 per cent. did trouble to vote and 20 per cent. abstained. That is a very unsatisfactory way of assuming that the introduction of a new parliament should take place. I hope that the Government will bear this in mind, and my noble friend Lord Campbell of Croy has made a very important point. We must consider the effect of abstentions.

Lord Howie of Troon

I sincerely hope that the Committee will not be beguiled by that argument. If an abstention is to be thought of as a vote against, the person who abstains can in fact vote against. It is not difficult to do: he goes along and makes his mark. If on the other hand he abstains he has abdicated, and therefore his opinion is of no account. It should not be considered as a vote against. I notice that my old friend Lord Renton shakes his head: he can shake his head until it falls off but it makes no difference. The man who abstains has abdicated and he has given up his right to be counted, and certainly to be counted as being against. If he is against he can go and put his mark down like the rest of us, who are actually for.

Lord Crickhowell

I should like to follow up that particular point, which is a very important one, although perhaps more important to the electorate than to your Lordships. A firm message has to be delivered to those who do not want the Government's proposals: on this occasion they have to turn out and vote. It is a message that those who are against the proposals of the Government, both for Scotland and Wales, have to deliver loudly and clearly.

I want to make a slightly different point. A White Paper will be put before us in due course. As the Bill is at present drafted, in Wales at any rate there is simply a referendum question about a Welsh assembly. An assembly is a pretty vague sort of organisation. We shall have from the Government in due course some detail of what that assembly is to do, its powers and their limitations, and its duties and functions. But quite clearly a lot more will emerge when the actual Bill setting up the assembly is put in place.

It is important to realise that even if there is a vote in favour of setting up an assembly that should not preclude Parliament from disagreeing about the details subsequently put forward by the Government. I can just see what will happen if the proposal for an assembly is carried. A Bill will be presented to us. We will be told that the Government have the approval of the people and it would be quite improper to disagree with any of the individual clauses or component parts of what is put before the House. We need to nail that one pretty early. It may well be that the Government will get a "Yes" vote for the general proposition that they have put forward, but the Government must understand that while we may well accept—indeed it would be correct to accept—the will of the people on the general proposition, they should not subsequently argue against the right of Parliament to deal very precisely with the detail and to disagree with the individual components if these do not seem to be practicable or sensible.

Baroness Carnegy of Lour

On the four Scottish questions it will be even more important, it seems to me, for the Government to make it plain to people that this is an advisory referendum. They have already said that it is and they need to make this plain, whether or not that is in the Bill. There may be great difficulty in interpreting what people want from the four different voting choices, as my noble friend Lord Mackay enumerated at the beginning. One could imagine a very difficult decision having to be made when it comes to interpreting where the strength of opinion lies and whether in fact there is a majority for anything, or what there is a majority for. If my noble friend Lord Campbell of Croy intends to withdraw the amendment—and from what he said I think he probably does—it is extremely important for the Government to undertake to make it plain again and again that this is an advisory referendum and that people are free to interpret it as they wish. They should do so if that is their intention.

Lord Campbell of Alloway

I should like to express my support for my noble friend. In effect, what we have done is to start speaking to Amendment No. 39 which has not been grouped. Any question of something being advisory, be it in the Bill or be it understood in the manner proposed, is terribly important. The way in which the reflection, mentioned by the noble Lord, Lord Sewel, is translated into a decision is very much assisted by Amendment No. 39. In due course, when we come to deal with that amendment—I shall not spend time on it now because it speaks for itself—the hope is that consideration will be given to that fact.

Lord Stewartby

I am sorry that the noble Lord, Lord Peston, is no longer in the Chamber because I should like to respond to the question he posed during the debate on the previous amendment. It touches on the question of the validity of the referendum and how it should be received, not only by Parliament but also in a sense of how much moral commitment there may be as a result of it.

In moving the amendment, my noble friend Lord Campbell of Croy put his finger on a very important point; namely, that there is a difference between a referendum held before legislation is brought in and debated and one which is introduced afterwards as a validating mechanism in terms of public opinion. I can only speak for myself—and I do not know whether my noble friends will agree with me—but I would regard the results of any referendum held in advance of legislation as being less valid than one which was held afterwards.

Therefore, I would not necessarily say that I would accept the result of that referendum as being binding in the moral sense. I shall not go into the constitutional issues raised by the noble and learned Lord, Lord Simon of Glaisdale, although I do not dissent from him in that respect. However, if we say that we pay regard to public opinion and that we accept the validity of a properly conducted test of that opinion, then, even if there were no change to the legislation after it had passed through Parliament and even if that legislation precisely reflected the terms of the White Paper, I do not believe that the effect of a referendum would be the same before and afterwards. I say that because the purpose of the referendum afterwards would be to validate a process which would be much more thorough and which would undoubtedly have been discussed in greater detail, with the implications being much better understood by all those who took part in that debate. Therefore, if the vote is "Yes", I would not regard a referendum held in advance of legislation as being more than an indication that there is support in public opinion for bringing forward the legislation.

Lord Rees-Mogg

I should like to express a certain feeling of sympathy for the Government as regards the amendment. It is perfectly true to say that a referendum can only be an advisory mechanism. Parliament is sovereign, but a referendum is not sovereign in that sense: Parliament will still have the duty to scrutinise the Bill in detail. However, if the amendment is accepted, it seems to me that people will start to suspect that the Government are moving away from accepting the relevance and importance of the referendum.

If the Government do introduce a referendum measure and do in fact hold a referendum, clearly the moral obligation on them will be very great. There seems to me to be a danger that people will start to believe that the Government are resiling from recognising that moral obligation, while in fact they are quite correct to recognise that this referendum can only be an advisory one so far as concerns Parliament as a whole.

4.45 p.m.

Lord Mackay of Ardbrecknish

My Lords, the noble Lord, Lord Rees-Mogg, made a very interesting point and one to which the noble and learned Lord, Lord Simon of Glaisdale, referred in our first debate; namely, that in our constitutional position referendums cannot bind Parliament. However, if we are to go down the road of referendums—and this is perhaps a rather wider debate than just this particular referendum—we must address ourselves to the question of whether referendums should bind Parliament. Whether or not they bind governments is, of course, another question of, dare I say, lesser importance. Government can feel bound by a referendum but Parliament could still refuse to follow the Government's advice and decide that it was not bound by the referendum decision.

Post-legislative referendums are rather easier to position in the constitutional arrangement because Parliament has decided on a piece of legislation, whatever it may be, and it has then decided to ask the people, "What do you think about this piece of legislation?". My recollection of the 1979 Act was that the relevant clause said, essentially, that if the Scottish people agreed with it, then it would be enacted and carried out; but if they did not agree, then it would not be. The position there was quite clear. If my memory serves me correctly, both Houses of Parliament had debated the issue over two or three years and, quite clearly, had come to a decision, an Act of Parliament had been passed and the question was then put to the people. There is a good argument for saying that, in those circumstances, the results of the referendum really ought to be binding. If we are to travel down the road of having referendums, then, as I said on Second Reading, this is one of the many issues which I believe the Government must address in a single referendum Act so that the rules are clearly set down.

However, pre-legislative referendums are different. As the noble Lord, Lord Rees-Mogg, just said, Parliament has still to consider the detail. Therefore, there seems to me to be a conflict between our concept of parliamentary democracy and of Parliament being sovereign, and the concept of having referendums. But the matter is not resolved when one considers what I understand is becoming Holy Writ in this Chamber; namely, that every time we ask a question of the Government we are referred to the Labour Party manifesto. Therefore, I thought that I would refer to that document. All it tells me is this: As soon as possible after the election, we will enact legislation to allow the people of Scotland and Wales to vote in separate referendums on our proposals, which will be set out in white papers. These referendums will take place not later than the autumn of 1997. A simple majority of those voting in each referendum will be the majority required". We shall return later to some of these issues. Popular endorsement will strengthen the legitimacy of our proposals and speed their passage through Parliament". Although I can read between the lines, the document does not actually tell me that the Government will consider the results to be mandatory. Indeed, they are not necessarily mandatory.

We should perhaps look at the experience of those countries in which referendums or plebiscites are held. I have in mind two in particular. If we consider the position of Switzerland which has very much built its whole constitutional arrangement on referendums, it is clear that there is absolutely no doubt as to the legal position of a referendum held in that country. There are a number of mechanisms to consider, some of which are quite interesting and important from our point of view as regards how other people run referendums. From the details of the first example contained in the booklet that I have with me, it is interesting to note that they relate to a point made by the noble Lord, Lord Peston; namely, that: There is nothing to prevent another referendum being requested as soon as one has been held. Many laws have been defeated only to be approved a second time round". However, the important points are as follows: All types of referendum are binding in their outcome. No referendum can be overruled unless by another referendum. The Swiss Supreme Court cannot declare any referendum decision unconstitutional". I am grateful to my friend Professor Ross Harper who outlined the Swiss position in that booklet. Those are the important aspects of the Swiss constitutional arrangement. It is perfectly clear that whatever a Swiss referendum is about, the result is binding. Everyone in Switzerland who enters a referendum campaign knows the rules of the game; namely, the result of a referendum is enacted.

In the United States of America there is a slightly different arrangement in that there are non-binding referendum ballots. Those Members of the Committee who take even a passing interest in American elections will know that a number of propositions are printed on the ballot paper with which people may agree or disagree. As I understand the position, those can be overruled by the courts, although that may still be a matter of dispute in California. However, the measures are certainly not binding in the states where they are held. I contrast the position in Switzerland, which has rigid, binding rules as regards its referendums, and the United States which does not.

On Second Reading I said that I thought the report of the Commission on the Conduct of Referendums should be compulsory reading for those Members of the Committee who are taking part in this debate. I certainly found it interesting. The report states that, Whether a referendum is regarded as advisory or mandatory is a political issue". I ask the Government to give me their views on that. The report continues, A referendum can be mandatory only to the extent that a Government binds itself to accept the result. That would depend on the referendum issue, and possibly on factors such as the turnout or the size of the majority … Although a Government could commit itself, Parliament could not be bound by the result". I do not argue with that statement. I believe that the noble Lord, Lord Rees-Mogg, expressed that in his own words, as did the noble and learned Lord, Lord Simon of Glaisdale, earlier this afternoon. However, a problem arises with regard to the political situation in Scotland because the Scottish Constitutional Convention, in which the Labour Party and the Liberal Democrats were partners, has decided upon the interesting constitutional arrangement that sovereignty resides with the Scottish people. If sovereignty resides with the Scottish people, surely that means that the referendum and any referendum ought to be binding.

The Government may not accept that sovereignty resides with the Scottish people. Some of us recall Mr. Blair's visit to Scotland during the election when he "pooh-poohed" that concept pretty bluntly and said that sovereignty resided with him. To be fair to him, I think that was a slip of the tongue. I believe he was being collective and that he meant to say that sovereignty resided with him as a Member of Parliament together with his fellow Members of Parliament. Perhaps he was being a little slipshod in his language when he said that it resided with him. Perhaps certain Labour Members of Welsh constituencies are beginning to feel that sovereignty resides with him, but that is an aside.

I am not a constitutional expert and I notice that the noble Lord, Lord Williams of Mostyn, is to reply to this amendment. I speak in terms of a pupil asking a master for some advice on this matter. There are other noble and learned Lords in the Chamber who know a great deal more about these matters than I do. I may be over-simplifying the matter but if the Scottish Constitutional Convention is correct, and the Labour Party and the Liberal Democrats have decided that sovereignty rests with the Scottish people, it seems to me they are saying that the results of referendums must be treated as mandatory. That seems to me to conflict with the position held by the Houses of Parliament. I hope that the noble Lord, Lord Williams of Mostyn, will address that matter.

My final point on the matter of advisory or mandatory referendums is the following. If we are to have many referendums in the future, if there is a lowish turnout in a referendum—that is a subject I shall address later— and if the proposition is barely agreed to and the Government decide in their wisdom (and more particularly Parliament decides) that they will not accept the result of the referendum and that they will not enact the result of the referendum, I dare to say that I suspect there will be a considerable backlash against Parliament. I believe people would say, "There they are; they are just ignoring us as usual. They ask our advice but when it does not suit them they just kick it into the long grass and ignore it". It would be a serious matter if we got ourselves into such a position. The position would be helped a little if it were made clear that the result of every referendum was to be advisory and that Parliament would not be bound by it. However, I believe that that would help only a little because, if the people have spoken and Parliament decides to ignore what they have said, that would cause a great deal of trouble and Parliament would be at the receiving end of criticism from the people and particularly from the press.

Those Members of the Committee who have ever sat in another place will know what I am talking about on my next point. Those of us who have had to seek election know that one of the constant questions we are asked is why we do not hold a referendum on the death penalty. I do not wish to discuss the death penalty, but we all know that after horrific events have taken place if a referendum on the death penalty were held there would be a majority in favour of it. Every Member of the Committee who has ever had to argue with a difficult constituent on that matter knows how difficult it is to tell him or her that one has to leave that decision to Members of Parliament. I shall not discuss the Burkean analysis of the duties of Members of Parliament, but that is a difficult argument to put across to people. The position would be made even more difficult if we had asked people their views in a referendum and then decided not to accept the result of that referendum. I hope that the noble Lord, Lord Williams of Mostyn, will address those important points when he replies to the amendment of my noble friend Lord Campbell of Croy. I hope he will discuss issues wider than the referendums on Scotland and Wales and that he will discuss other referendums that may be held in the future. I hope he will give us an inkling on the Government's thoughts on these issues.

The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn)

I am most grateful for the way in which the noble Lord, Lord Campbell of Croy, has moved this amendment because he most helpfully said that it was a probing amendment; in other words, that the matter requires clarification. The clarification was readily to hand—not for the first time— from his namesake, the noble Lord, Lord Campbell of Alloway, who in my judgment accurately described the constitutional position.

The referendums to be held in Scotland and Wales will indeed he advisory, in the same way as every other referendum in the United Kingdom has been advisory. The well-known principle is that Parliament cannot tie its own hands. I believe that all Members of the Committee who have spoken have made that point. After all, what we do today we can change tomorrow. The Government's position is quite plain and I repeat it. It was made plain by the noble Lord, Lord Sewel, on an earlier occasion, as has been mentioned. No referendum Act can require Parliament to do or not to do anything. As the noble Lord, Lord Mackay of Ardbrecknish, reminded us, the Scotland Act placed a requirement on the Secretary of State to lay an order to repeal the Act if the threshold were not reached in the referendum. However, as a constitutional matter, Parliament could have chosen to reject the order and commence the Scotland Act anyway.

I recognise entirely that the conflict between the general public and both Houses of Parliament could become quite acute in certain situations, as the noble Lord, Lord Mackay of Ardbrecknish, noted. When the results of the referendums are to hand, it is for Parliament to reflect on them and it is for Parliament to act as it sees fit. It is not necessary—as most Members of the Committee have indicated—to state in the Bill that the referendum in Scotland or in Wales is to be advisory. Under our constitutional arrangements it could be nothing else.

Lord Fraser of Carmyllie

I hope I may speak briefly. This may seem, relatively speaking, to be an unimportant amendment to this Bill. I wholly agree with the noble Lord's classic Diceyan statement as regards the sovereignty of Parliament. What troubles me, however— as my noble friend Lord Mackay indicated— is that in taking forward the development of its ideas the Scottish Constitutional Convention repeatedly referred to the concept of sovereignty resting with the people in Scotland. It expressed that in a way that I do not think Dicey would have done. I note that the noble Lord, Lord Ewing, is present and he may correct me if I am wrong, but I understood that it derived its authority for that assertion from the famous dictum of Lord President Cooper in the famous case of MacCormick v. Lord Advocate in 1953. The issue involved what was to appear on pillar-boxes—whether it was Queen Elizabeth II or simply Queen Elizabeth. I quote from it because we must have a clear understanding in Scotland as to whether or not it is advisory. Otherwise some people may be seriously misled about the real consequences. In Session Cases at page 411, Lord Cooper said: The principle of unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law. It derives its origin from Coke and Blackstone, and was widely popularised during the nineteenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form in his Law of the Constitution. Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament hut none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done". I have no doubt that the noble Lord, Lord Williams, would have some difficulty with much of what is set out in that paragraph. He may care to reflect on it.

I urge the Government to appreciate that there is a school of thought in Scotland that would not accept that a clear majority in a referendum in Scotland would be only advisory in effect. If we are to have a rational, sensible debate in Scotland on the matter, there should he no doubt in people's minds—I do not refer simply to the view that I express or that of the noble Lord—that it is the view of Parliament.

That is important in this respect. If there is to be an inalienable expression of the sovereignty of the Scottish people in a referendum, it would have serious implications when we subsequently discuss a Bill to establish a parliament or assembly. If the outcome were a yes vote, it would he wholly presumptuous and wrong of either House of Parliament to attempt to interfere with that expression of view.

5 p.m.

Earl Russell

The noble and learned Lord, Lord Fraser of Carmyllie, is leading himself into very deep waters. The Cooper judgment must be taken to have a great deal of force. If we wish to see how much force, we should read carefully the text of the Act of Union of 1707. A large amount of the Act lays out things which the Westminster Parliament may not do. It is hard to reconcile that with the Coke and Blackstone doctrine of sovereignty as we have been used to operating it this side of the Border.

However, in these matters I think that one should accept Aristotle's maxim that it is the mark of the educated man to look for no further certainty in any matter than the nature of the matter will admit. In those circumstances, I think that we may be unwise to pursue this matter any further.

Lord Hughes

I wish to speak on the point as regards whether the matter is advisory or otherwise. The noble and learned Lord, Lord Simon, stated well that Parliament cannot be bound by a referendum. However, the noble Lord, Lord Rees-Mogg, put his finger on the point. Parliament cannot be bound by a referendum, but a government can be bound by a referendum; and a government with a majority of 179 in the House of Commons is most unlikely to fly in the face of what the people of Scotland have decided in the referendum.

We shall have further debate on this issue on Amendment No. 39. But so much rubbish has been talked about what took place in 1979. A majority was in favour of the Bill. The noble Lord, Lord Campbell of Croy, pointed out that it was 33 per cent. to 31 per cent. However, we had the extraordinary position put forward by the noble Lord, Lord Renton, who is usually so logical, that if 64 per cent. take part in the vote the remaining 36 per cent. must all be assumed to be against the proposals.

Let us take the last election in 1992. The Government gained 42 per cent. of the vote. On a 75 per cent. poll, that was 31.5 per cent. of the electorate. But no one in government at that time said that the 25 per cent. who did not vote were against the majority.

I suggest that we may discuss this further on Amendment No. 39. But I believe that the noble Lord, Lord Rees-Mogg, is right: it can be binding on the Government who put the referendum before the people. As a loyal supporter of the present Government, I shall be most unhappy if at the end of the day they turn down what the people of Scotland have said, whether yes or no.

As regards sovereignty being with the people, that is an old concept. Three hundred years ago Mary was not Queen of Scotland; she was Queen of Scots. Even then the issue was that sovereignty rested with the people. Parliament may have changed that. It does not alter the concept but it alters the way in which it is worked out.

The noble Lord, Lord Campbell of Croy, spoke about the difference between a referendum before the Bill was passed and a referendum after it was passed. He implied that a referendum before the Bill must be advisory, but a referendum after the Bill must be obligatory. Whichever way we want it, we must accept that the position is clear: that it is advisory so far as concerns Parliament. But we must go to the other issue: that a government which have put the referendum before the people must accept that it is mandatory on them.

Lord Campbell of Alloway

As six noble Lords have strayed on to the point about the turn-out proportion of those eligible to vote, referred to in Amendment No. 39, which is relevant to this amendment, does the noble Lord, Lord Williams of Mostyn, wish to deal with the issue in outline now or does he wish to defer this important matter until later?

Lord Williams of Mostyn

I think it proper to deal with the matter in its appropriate place. Although I respectfully agree with the noble Lord that sometimes the debate strays a little, unfortunately I have neither a crook nor sheepdog with me.

Lord Mackay of Ardbrecknish

Before my noble friend Lord Campbell of Croy decides what to do, I wonder whether I can tempt the noble Lord, Lord Williams of Mostyn, into addressing one of the questions I put to him, to which perhaps wisely he decided to give a body swerve. I refer to the issue about sovereignty which has been raised by the noble Lord, Lord Hughes. It is important although I do not think that it is of central importance to the position about referendums.

If the Scottish Constitutional Convention, in which his party was the main player, stated clearly—I do not think anyone has denied that it stated clearly—that sovereignty rests with the Scottish people, how does that fit in with the proposition that a referendum cannot bind Parliament? How does it fit in with Mr. Blair's assertion that sovereignty rests with him? Perhaps I can tempt the noble Lord, Lord Williams of Mostyn. If he does not wish to dip his toes into the complexities of Scottish politics, perhaps his noble friend Lord Sewel may wish to give us his advice on this matter.

Lord Williams of Mostyn

I am being encouraged into temptation. I cannot swim, and my noble friend Lord Sewel does not wish to.

Lord Campbell of Croy

I am grateful to all Members of the Committee who have taken part in the debate.

First, the question of abstentions was raised by my noble friend Lord Renton and by the noble Lord, Lord Howie of Troon. I have known him for many years in another place and here. He has told us that as he has been resident for some time in England he will not be able to take part in the referendum. I consider that the Scottish people—as they are referred to—would be incomplete without the noble Lord, Lord Howie. So I am sorry that he and others will not be able to take part in the referendum.

I referred to Amendments Nos. 50 and 83, and the general debate on abstentions can be continued under those amendments. If the principles are accepted, the numbers of those who voted for and against will assume greater importance than they did in 1979 and greater importance than any abstentions. The noble Lord, Lord Hughes, also referred to the matter.

The noble Lord, Lord Rees-Mogg, said something with which I agree. It is that there is a moral obligation on the Government who put forward a Bill and arranged a referendum. The noble Lord agreed with the whole purpose of my amendment, which is to obtain confirmation by a government spokesman that the referendum is advisory to Parliament.

In the Second Reading debate, the noble Lord, Lord Williams of Mostyn, had to reply to many points and he did so very adequately, in my opinion. But he did not deal with this matter, which I mentioned in my speech. That was one of the reasons for ensuring that it was raised today.

My noble friend Lord Mackay referred to the 40 per cent. threshold in the Labour Government's Bill of 1978. I have the Act here and can tell him that Section 85(2) required the Secretary of State to repeal the Act if the threshold was not reached.

I am grateful to the noble Lord, Lord Williams, for his reply. He has given a clear statement as I understand it, and it was in order to obtain such a statement that I put down the amendment. It is especially needed because of the possible conflict which has appeared a great deal in the Scottish press and media, but which may not be apparent to all Members of the Committee. It is the conflict between the two concepts: first, the sovereignty of this Parliament and, secondly, that sovereignty in Scotland lies with what is called "the Scottish people". Therefore, this debate and the statement by the noble Lord, Lord Williams, have been helpful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 p.m.

The Earl of Onslow moved Amendment No. 3: Page 1. line 6, leave out ("in Scotland").

The noble Earl said: I wish to take this amendment with Amendments Nos. 9, 27, 32, 42, 84 and 87. It may not appear clear to everyone why in Amendment No. 3 I propose to: leave out ('in Scotland')". However, it becomes clear when we reach Amendment No. 42, which states that any electoral area should be the whole of the United Kingdom.

I have been rather depressed by the debate, not only by remarks from the Government side but also, I regret to say, from my own Front Bench. One would assume from the arguments that the alteration of the United Kingdom constitution is solely of interest to the Scots and the Welsh. That is not true. When the noble Lord, Lord Mackie, intervened to say: "All Scots say that this must happen", I thought to myself: "How narrow-minded the Scots have become compared with the days of the Edinburgh Enlightenment, of Locke, Hume and Adam Smith". They were outward looking. But no, there is a kind of "whinge fest" going on north of Hadrian's Wall. We English—and I use the word advisedly—consider it is also our United Kingdom. My country goes from the borders of Loch Foyle to Cape Wrath, to Lands End, to the mouth of the Thames and to the edges of Norfolk. That is my country. It is the country of those who live in Aberdeen and those who live in Caerphilly. But for some reason, the majority of the United Kingdom's citizens will not be allowed any say in their constitution. That is sloppy thinking. It also means that when the chickens of this devolution come home to roost and the English wake up, the Scots and the Welsh will be much more unfairly blamed than they are now.

It has been brought to my attention—and I admit that this is the yob end of nationalism—that youths are now going around draped in the cross of St. George saying: "Something the Union Jack". That is a sign of incipient English nationalism and I had hoped that I would never see it, but the Scots and the Welsh—though the Welsh to a lesser extent than the Scots—complain so much. I give an example. I happened to be in Scotland only a month ago, talking to a charming Scots doctor. He said: "Of course we don't have any waiting lists in Scotland because we get 12.5 per cent. more money per patient in Scotland than you do in England". I think no one in the United Kingdom would begrudge differential resources, but if you have cakes to be eaten, differential resources and separate parliaments, as night follows day you will set the Scots against the English.

If we were to have a straightforward referendum—and I shall come to it later—on whether Scotland wishes to be independent, that would be a different matter altogether. If the Scots do not wish to be a member of the club, that is fair enough. But if you want to be a member of the club, the other members—the 87 per cent. of the other members—have a say in what the club's rules are.

Let us assume for the sake of argument that there is a 70 per cent. turn-out in the referendum—not an unfair assumption; let us assume for the sake of argument that 60 per cent. of the 70 per cent. are in favour and 40 per cent. against. That is 42 per cent. of the Scottish electorate or 4.2 per cent. of the population of the United Kingdom deciding to ruin the British constitution. It is not a question of "Oh, rubbish!": it is a fact. That is the most depressing aspect; that we English are not allowed any say in what happens. That is why I beg to move Amendment No. 3.

Earl Russell

The amendment is superficially plausible. It rests on a considerable series of misapprehensions. The noble Earl illustrated the first of the misapprehensions quite early in his speech when he began by saying, "We English", and said, "I use that word advisedly". Then he said, "My country goes to Cape Wrath". There is a certain tension between the two statements.

The Earl of Onslow

What I also said, advisedly, was that my country means that the person who lives in Aberdeen as a Scot feels, or should feel, towards the United Kingdom what I feel as an Englishman. That is the point I was making. I was not saying that England and Britain are the same thing. They are not.

Earl Russell

I entirely accept that point, to which I was coming. All I said was that there was a certain tension between the points, and that the noble Earl will not deny. There is here a real misunderstanding, especially south of the Border, about Britain. It was illustrated vividly by the noble Baroness, Lady Thatcher, a couple of weeks ago. She said that Britain is a sovereign nation. That was two errors in two words—a peculiarly high strike rate, even for the noble Baroness.

The noble Earl, Lord Onslow, will agree with me that Britain is not a nation. Britain is a union of several nations. I shall not particularise the number because I do not intend to debate Northern Ireland. Wales is clearly a nation; Scotland is clearly a nation. They have been independent nations; they are united by different processes. That is one of the aspects that puts the basic tension into the subject.

Britain is not only not a nation; it is not in fact in the Diceyan sense, a sovereign country. If one looks carefully at the Act of Union 1707—I re-read that Act with care only last week—one sees that it is not an incorporating union. It does not set up a single sovereign state. Above all, it does not set up a uniform system of law. That is one of the most important facts about the Act of Union with Scotland.

The union with Wales was based on conquest, but the union with Scotland was a union with a separate and equal sovereign state under a common authority. From the very beginning, the English always had very great difficulty absorbing that that was the case. Right back, immediately after the Union of 1603, Sir John Stanhope, Vice-Chamberlain of England, discovered to his utter horror that the king also had a vice-chamberlain of Scotland. He was so shocked and insulted by that information, that he refused to come to court for a period of six months.

That belief that there is a single sovereign nation is the basis of a great deal of the misunderstanding about the Union. If the Scots whinge, as the noble Earl put it, it is because they say that the type of union which has hitherto existed is not the type of union which the English believe it to be and that the English have in fact simply failed to recognise that there is a union of sovereign states on the basis of equality.

I passionately hope that the Union will continue. South of the Border we have learned a very great deal from it and I hope that we shall continue to do so. But it will not continue unless it is recognised that it is a union of equals and a union of sovereign states, each with its own dignity, rights, laws and pre-eminences.

I agree with the noble Earl that we can only have a union if it rests on a basis of consent. That is where there is a superficial plausibility about asking the English to vote in a referendum. But it appears to me to be clear that in both Wales and Scotland there is no consent to the existing system. So, were the English to vote for the existing system, they would be voting for something which, in effect, could only be imposed by a power of conquest exercised from Westminster. That is something to which I for one am not prepared to give my support, except in the event—which I do not expect, but anything can happen—that the people of Wales and Scotland should vote for it in a referendum. Should they vote for the status quo, then it would be an option.

But it is a convention that, when issues are put to the people in the clearest possible terms in a general election, we accept the result. In particular, it is a convention that we in this Chamber accept the result. So it is my belief that, were England to vote on the referendum, we could not put the status quo as an option in favour of the English. I could not be a party to that.

If, after the Scots and the Welsh have voted for devolution, the English were to find it absolutely unbearable to accept that they are not the only pebbles on the beach; that they do not exist in a national sovereign state but, like practically every other state in Europe, they exist in a system of power sharing, where sovereignty is distributed in several parts and several places, then it would be their right to say so. But it would amount to saying, "Stop the world, I want to get off". I hope that they do not do it.

Lord Mackay of Ardbrecknish

Perhaps I may say a few words about this matter, following the noble Earl. Debating historical and constitutional matters with the noble Earl makes a change. Normally, in our usual debates, he tells a few anecdotes from times long gone by and then discusses social security issues on the back of those anecdotes. Today, however, we hear him speak with almost no anecdotes, discussing something on which I know he is a great expert. I had hoped that he would address himself to the question I put to the Minister; namely, where does sovereignty lie? Does it lie with the people as the Scottish Constitutional Convention chaired by the noble Lord, Lord Ewing, and now chaired by the noble Baroness, Lady Ramsay of Cartvale, or does it lie with Parliament?

I know that it is fairly easy to tempt the noble Earl to discuss these matters and perhaps I can tempt him at a later stage to give us an answer on that point. The Government seem to have entirely failed to do so. Certainly, when I stood at the Dispatch Box opposite, I always tried—no matter how inadequate it might have been—to answer questions put by those on the opposite side. If Ministers speak with their noble friend Lady Hollis of Heigham, they will find that, although she sometimes did not like my answers, she certainly knew that she had received answers.

My noble friend Lord Onslow made an important point; namely, there will be knock-on effects of Scottish and Welsh assemblies or parliaments (if we come to it) on the Parliament of the United Kingdom and the way in which we run the United Kingdom. Undoubtedly, the noble Earl, Lord Russell, has confirmed that. Questions will arise about what Scottish Members do down the corridor at Westminster if they no longer have a say over similar matters affecting their own constituencies—the so-called West Lothian question. There may well be other financial matters which will have to be addressed. There will be important matters raised and the noble Lord, Lord Sewel, will already appreciate that there will be important matters about the position of the Scottish Ministers—in other words, Scottish parliament Ministers—on fisheries and agriculture when it comes to the United Kingdom being represented at Brussels by United Kingdom Ministers for fisheries and agriculture.

At Second Reading I attempted to say, as I believe the noble Lord, Lord Sewel, is gracious enough to accept, that we should leave these matters until we come to a Bill, if we do come to a Bill. Then we must address in some detail how the new arrangements fit in. This is a referendum and the matter ought to be decided by the Scots and the Welsh; or perhaps, more particularly, by those people of whatever ethnicity who are living in Scotland or Wales at this particular time.

The noble Lord, Lord Sewel, seems to believe that I concede his case. I am not doing so. I am saying that that is what he says should happen—that is the answer that he gave. I shall return to amendments—indeed, I was about to come to them—about Scots who live in England at this moment and whether or not they should vote; or about Scottish soldiers who are based in England and whether or not they should vote. There is no doubt that my noble friend's amendments would get round those two problems. But I believe that he was wrong in his assertion that the English should be given a vote in this referendum. This is a matter for the Scots and the Welsh primarily, although, if they both agree to have such an assembly, then we and the other place down the corridor will have to address very seriously the question of how the assemblies/parliaments link in with what I, like the noble Earl, Lord Russell, trust will be the continuing United Kingdom.

Having had a debate on this issue, I hope that my noble friend will be able to withdraw his amendments.

Lord Mishcon

The noble Lord, Lord Mackay, is one of the finest debaters in this Chamber. With very good humour, he attempts to tempt people into rash statements by way of answers to the direct questions that he asks. He has tempted me. I shall now give a wrong answer to his question. The tempting question was: How does one match the Scottish Constitutional Convention's idea of sovereignty which vests in the Scottish people with the idea of our Parliament being sovereign?

I am sure, in my misguided view, that there is a simple answer. If any Scottish assembly or parliament which may be created as a result of our deliberations and the passing of this Bill decided to hold a referendum, I have no doubt that what is in the Scottish convention would apply. This is a Bill which one assumes will be passed by the United Kingdom Parliament and it is that Parliament and that law which has jurisdiction. The result is that, as our law constitutionally says, Parliament is sovereign and therefore the result of the referendum will be advisory. That is clear to me. But I repeat: if anything is clear to me, as my clients know, it must be wrong.

5.30 p.m.

Lord Williams of Mostyn

I repudiate the suggestion that the constitutional debate in Wales and Scotland— Scotland in particular—which is serious and well informed, can be categorised as a whinge fest. Significant areas of opinion in both Scotland and Wales want an alteration of the arrangements which have substantially been in effect and have led to the over-centralisation, the over-concentration of state power in Westminster. That is not a whinge fest; it is an intelligent approach to modern constitutional arrangements.

The key criterion for deciding who should vote on our proposals for establishing a Scottish parliament and a Welsh assembly ought to be residency in the countries concerned. I was grateful for the support given by the noble Lord, Lord Mackay, to the position for which we contend. It should be the residents of those countries who vote in the referendum; they are the most directly affected by devolution.

Perhaps I may offer an example. I believe myself to be Welsh. I was brought up in a Welsh-speaking household. I no longer live in Wales, as a matter of choice. As a matter of free choice, I am registered to vote in local elections in Gloucestershire. I see a number of my noble friends on the other side who come from west Wales and also mid-Wales—my noble friend Lord Hooson—and also north Wales, which I understand has some intimate connection with the noble Lord, Lord Thomas of Gresford. They may well be entitled to vote in local elections. If so, they ought to be entitled to vote in a referendum.

We are proposing that those entitled to vote in local elections in Scotland and Wales should be entitled to vote in the referendums. That includes Peers, which I am sure must be a determining factor, and EU citizens resident in Scotland or Wales. It would exclude overseas electors, who are entitled to vote only in parliamentary elections.

That was a principle recognised by Parliament in respect of the 1979 referendums in Scotland and Wales. Much more recently, when the present Opposition was then in government, under the Northern Ireland (Entry to Negotiations, etc.) Act 1996 exactly the same principle was adopted; that is, the franchise was extended to the people of Northern Ireland and not the whole of the United Kingdom. We believed then that that was the right decision and propose the same decision on the present occasion.

It is not correct to say that people in other parts of the United Kingdom other than Scotland and Wales will have no voice. That is quite wrong. The final decisions on the principle and the detail of setting up a Scottish parliament and a Welsh assembly reside with this Parliament. It is this Parliament which will make those ultimate decisions, as was plainly established in the interesting debate on the amendment of the noble Lord, Lord Campbell of Croy.

We have put forward a balance between consulting directly with those in Scotland and Wales and, at the same time, ensuring that the interests of the United Kingdom as a whole are properly taken into account in both Houses of this Parliament. I therefore invite the noble Earl to withdraw his amendment.

The Earl of Onslow

Of course I shall withdraw the amendment. I just wanted to bring attention, as harshly as I could, to a fact which I believe passionately to be true; that is, that just over 10 per cent. of the population of the United Kingdom have the right to vote to change the constitution of the other 87 per cent. If they vote for it and it is carried out, Cassandra will be proved right. It will be a tragedy for the United Kingdom.

If I can understand that, other people ought to be able to. The consent of our Parliament has been based on the consent of everyone in the United Kingdom working to the same rules. It is extremely depressing to think that the things that I foresee will come about. With that gloomy thought, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mar and Kellie moved Amendment No. 4: Page 1, line 6, leave out ("establishment") and insert ("re-establishment").

The noble Earl said: The purpose of Amendments Nos. 4, 55 and several others included in the grouping is to set the Scottish dimension of the referendums Bill and the schedule in its correct context. The amendments are straightforward and the substantive change is no more than to add the two letters "re" hyphenated on to the front of the words "establish" and "establishment". The Bill would therefore refer to the "re-establishment" of a Scottish parliament.

Of the fact that a Scottish parliament existed before May 1707 there can be no doubt. The amendment was trailered by the noble Lord, Lord Mackay of Ardbrecknish, as being trivial. It is not trivial that there was a Parliament in Scotland before May 1707. The minutes of that Parliament are available in the Library and give us a valuable insight into its workings. For example, those concerned today with the exclusion of a class of Members of this Chamber and seeking for a precedent need only look at the Scottish Act abolishing the Prelacie dated 22nd July 1689, and thus excluding bishops from the Parliament. That example is not offered as a presbyterian's revenge and I must declare the interest of being an elder of the Kirk.

While I accept that the teaching of Scottish history may have been sidelined until recently—disgracefully, if I may say so—I am unable to accept that the pre-Union Scottish Parliament has never been heard of. It may not necessarily have been the most wonderful example of a Parliament, but it is very much part of Scotland's heritage and an historic symbol of Scotland's continuing sovereignty, as much so as the excellently displayed Honours of Scotland. And, further to that, Edinburgh still enjoys Parliament Square and Parliament House alongside the Royal Mile.

The heroic defence of Scotland's independence and criticism of the incorporated Union by Andrew Fletcher of Saltoun took place in that Scottish Parliament. Fletcher's pamphlet about the effect of Article 22 of the treaty sums up why we are here today involved in legislation to improve the Union. He wrote, The Scots deserve no pity, if they voluntarily surrender their united and separate interests to the Mercy of an united parliament, where the English have so vast a majority … it is much easier to corrupt 45 Scots in London, than it is to corrupt 300 at Edinburgh; and besides, there will be no occasion of corrupting them, when the Case shall occur of a difference betwixt the South-Britons and the North-Britons; for the Northern will be out-voted, without being corrupted … This will be the issue of that darling Plea, of being one and not two; it will be turned upon the Scots with a Vengeance; and their 45 Scots Members may dance around to all Eternity, in a trap of their own making".

The complaint about sleaze may not be as serious as it sounds. In an unpaid parliament, "management" was then the accepted way of securing consent. The Earl of Mar's remark that, Contrair to our expectations, the treaty has cairied", sums up the success he had, as Principal Secretary, in managing the vote during the ratification of the treaty. It is worth noting the disillusion with which the incorporating Union was received, even by the Principal Secretary, who was promoting the treaty. The Earl of Mar wrote to William Carstares, on 9th March 1706, thus: You see that what we are to treat of, is not in our choice, and that we see the inconvenience of treating an incorporating union, only".

Noble Lords will no doubt be aware that I have withdrawn amendments which called for the alteration of "a" to "the" before the words "Scottish Parliament". I did this because I realised that such amendments might cause confusion. They might imply that it is the pre-Union Parliament that is being re-established. Of course, the Parliament being proposed for re-establishment will have very different characteristics from its predecessor.

With regard to my claim at Second Reading that the Parliament of Scotland stands adjourned, it may be that I have misled the House and myself. If that is the case, then I apologise profusely. The minutes of the Parliament of Scotland contain no entries beyond the adjournment on 25th March. The House was adjourned until 22nd April, but it never sat on that date. The form of adjournment was the same as the last day of previous Parliaments. An adviser friend put this to an historian acquaintance, curiously in America. The answer came back that the Parliament of Scotland was dissolved by proclamation on 28th April 1707. Ironically, the source quoted was the Mar and Kellie Papers in the National Library of Scotland.

A visit to there produced two documents that can help us. On 21st April Lord Mar records: This day the council met and adjourned the Parliament to the 29 Apryle". On 28th April, curiously written down as 1706 when he meant 1707—this has no doubt confused historians—Lord Mar recorded this: Yesterday the Parliament was dissolved, and this day, the council and Exchequer sale and her Majesty's letters being read, there were two proclamations published accordingly". I do not understand why this proclamation was not recorded in the minutes. The minutes were printed and bound in 1824. The Union was in full swing by then, and I cannot see why this proclamation should have been suppressed. I hope that the Minister will be able to accept the historical purpose behind my friendly amendments. I beg to move.

Lord Campbell of Croy

The noble Earl, Lord Mar and Kellie, kindly wrote to me to explain the logicality of his amendments. As he indicated, the Parliament of Scotland was apparently adjourned in 1707. That seems to be the situation still. It stands adjourned. He has suggested that, with the new parliament that is proposed, there could be two parliaments operating in Scotland at the same time. I hope that the Minister, reinforced by legal interpretations, will be able to tell us what the situation is.

Whether "re-establishing"—the wording in these amendments—is the correct solution I do not know. It might increase the confusion. Although the Scottish Parliament of 1707 was fairly democratic compared with other parliaments at that time, to revive it now would not be a move towards further or greater democratic governance. I would remind the Committee that it consisted of the three estates; the peers, the landowners and the burgesses, who were broadly town dwellers. Those who attended were usually chosen or regarded as representatives and most of the work was done by a central committee. At least one distinguished ancestor of the noble Earl participated and I am glad to see in his place my noble friend Lord Belhaven, whose ancestor was also a leading member of the 1707 Parliament and, incidentally, was one of the leaders opposed to the union.

I fully understand from an historical point of view the reasons at that time for some supporting the Union and others opposing it. But there are some nationalists in Scotland—I refer to the SNP and others: this is not a matter concerning the Liberal Democrats—who call for that Parliament of 1707 to be resumed on the basis that it is still there and should be brought back. I hope that the Minister can, with legal interpretation, settle this matter of the adjournment once and for all.

5.45 p.m.

Lord Campbell of Alloway

I am totally foxed by this amendment. Either the Scottish Parliament exists or it does not exist. If it does not exist, what is the object of the amendment? If it does exist, the only way constitutionally that the parliament can be dissolved is by a Royal Proclamation. The noble Earl said—I accept with much interest everything he said—that it was dissolved. Well, then, it does not exist. My noble friend Lord Campbell of Croy said that it stands adjourned. That is quite different from being dissolved. If the noble Earl says that it was dissolved, it was dissolved. In any event, if it was not dissolved and still exists, it is a matter for the Queen and a Royal Proclamation. This amendment appears to me—I say this with the utmost respect—to be wholly misconceived.

Lady Saltoun of Abernethy

The noble Earl has told us with, I think, fairly good historical authority, that the Parliament was dissolved. For that reason alone I would entirely agree with the noble Lord, Lord Campbell of Alloway, in what he has just said. But there is another reason why I would be very sorry to see the word "re-establishment" occur in the Bill. That is because, as I understand it, not having seen the White Paper in a dream or anything like that, the parliament that is on offer from the present Government is quite different from the old Scots Parliament. The old Scots Parliament made all the laws concerning Scotland. There was no area which was not its province. What is on offer now is a parliament which would not have any control over the making of laws concerning foreign affairs, defence, fiscal matters or, we are told, social security and possibly other areas. It would therefore be very misleading to put the word "re-established" into the Bill. I might just add that my ancestor was a prominent member of that old Parliament and he, too, was against the union.

Lord Rees-Mogg

As the only Member of the Committee who seems not to be descended from one of the Peers of the Scottish Parliament, I should like to congratulate the noble Earl on an amendment of the utmost importance, even if that requires that I should clash with the noble Lord, Lord Mackay, who has been so helpful to us in the debate. It seems to me that that goes to the heart of the matter. The old Scottish Parliament was a Parliament. It was an independent Parliament of an independent nation. It had no natural limitation on its powers except in so far as there were powers reserved to the Crown or to the Scottish legal system.

The proposed parliament—which, like the proposal for Wales, might be called an assembly—will not be a sovereign parliament as I understand it—that is to say, it will be a subordinate body of the United Kingdom Parliament with certain powers devolved to it.

If we were to accept this amendment, it seems to me that we would be implying that the parliament that was contemplated had either the power or potentially could acquire power, similar to that of the original Scottish Parliament. We would be going back to a full, independent parliament which, when matters came to a head, would have the right to contradict the Parliament at Westminster.

But my understanding is that that is not to be the situation of the proposed Scottish parliament; that it is to be given certain functions, with perhaps certain taxing powers as well, but all the other functions of the parliament are to be retained in Westminster. Ultimately, I suppose, what Westminster has given to the Scottish parliament by statute could in theory be redeemed by a subsequent Westminster Parliament. It seems to me that this amendment has to be rejected because we would be doing something quite different from what is proposed by the Government. Nevertheless, it points to the very question which we have been discussing in terms of sovereignty, which is the central question; namely, what sort of parliament is proposed?

Lord Howie of Troon

Like the noble Lord, Lord Rees-Mogg, my forebears played no part in the Treaty of Union. They had no vote and nor did anyone think of giving them one. I suppose some of us have got one now.

I do not know whether the Parliament was adjourned or dissolved, but for the sake of this debate I am prepared to assume that it was adjourned, although there is some contradictory evidence in the remarks of the noble Earl, Lord Mar and Kellie, who introduced the debate.

Two things strike me and the first is this: if the Parliament is adjourned and this new parliament is established, it can remain adjourned. The problem then resolves itself and disappears. It will remain adjourned for all eternity. However, if the Parliament is adjourned and then re-established, there is the possibility of having two parliaments in Scotland. I can see that as a confusing situation, but it resolves one difficulty which I have in my understanding of the Government's proposals for the new Scottish parliament. Although the White Paper is not before us as yet, as I understand it the new parliament is to be uni-cameral. I do not really care for that.

If we have two parliaments, we shall resolve that difficulty and the re-established Scottish Parliament would then become the equivalent of the House of Lords. It would take up the revising duties which we carry out for the United Kingdom and which it appears we shall be denied doing for Scotland in due course. I incline towards the view of the noble Earl, Lord Mar and Kellie, who, as the noble Lord, Lord Rees-Mogg, said, put his finger on a very significant and important constitutional point.

Lord Hughes

I am sorry that I cannot follow my noble friend in the way he regards the possibility of re-establishing the Parliament. Instead I find myself in total agreement with the noble Lady, Lady Saltoun, and the noble Lord, Lord Rees-Mogg. The noble Earl, Lord Mar and Kellie, wrote to me, as he did to the noble Lord, Lord Campbell of Croy, pointing out that his amendment was not intended to be in any way against the establishment of a Scottish parliament, which the Bill aims to set up. My interpretation is that, if the Scottish Parliament is re-established, the noble Earl is giving the SNP its case in one amendment because the Parliament which existed then, as has been pointed out, had sole power. It was an independent Parliament and the English had nothing to do with it. So if it is re-established, the SNP will be inviting the noble Earl, Lord Mar and Kellie, to become the president.

Lord Belhaven and Stenton

I am a bit puzzled by this amendment. Who is going to sit in this adjourned Parliament? As far as I can see, it will be a parliament of ghosts. Who is going to start it off? Is there anyone still alive who was alive in 1707? I do not believe that there is.

Lady Saltoun of Abernethy

They might be dead, but their heirs are alive. The noble Lord is one of them.

Lord Simon of Glaisdale

It would be an impertinence to follow the noble Earl into Scottish history. It would be all the more impertinent to do so in the presence of the noble Earl, Lord Russell. In addition, I do not feel confident to discuss the constitutional position. I deprecate this amendment because it will only lead to confusion.

I shall be moving an amendment shortly, so perhaps I may say where I stand in general on this Bill. I am generally in favour of devolution because it assists in moving decision-making nearer to the people who are affected. I well understand the opposition view based on the slippery slope and the thin end of a wedge argument. A very perceptive political thinker, Hugh Cecil, who I believe was a great uncle of the noble Viscount, the Leader of the Opposition, once said that the British constitution is full of the thin ends of wedges, which the good sense of the community refrained from driving home. But the trouble here is that we cannot rely on that.

The noble Lord, Lord Hughes, mentioned the Scottish National Party. It wants to drive home that wedge and it is a very real danger. For my part, I believe that the danger of not accepting the Bill, which I hope can be improved, is greater than the danger which I have just mentioned. My noble friend Lady Saltoun mentioned the fact that the Scottish Parliament was sovereign, subject to the doctrine of sovereignty lying in the hands of the people. At any rate, it had all-embracing jurisdiction. It had jurisdiction over defence and foreign affairs. The noble Earl, Lord Onslow, has left the Chamber so he need not be inflamed. As I read Anglo-Scottish history, foreign policy had a distinctly Anglophobe colour. If we use the word "re-establish", it will be perceived that we are recommending to the voters the establishment of a parliament with similar powers to that which existed before the Act of Union. But that is not the intention at all. As I understand it, the intention is that there is a comparatively limited jurisdiction to be conferred on the Scottish parliament. In general, it is to be such functions as at present are devolved on the Secretary of State for Scotland and specifically Scottish matters like Scottish law and, I suppose, perhaps, the Scottish Church. Therefore, if we accept the amendment we are inviting the driving home of a wedge, and a very dangerous wedge.

Another matter adverted to was that before 1707, the Scottish Parliament was bicameral. It had a House of Peers. We do not know because we have not been told— and it is one of the many things that we have not been told—

6 p.m.

Lady Saltoun of Abernethy

Perhaps the noble and learned Lord will give way. The Scottish Parliament was unicameral and there were the three estates who sat in it. Those were the Peers, the burgesses and the clergy— the Church. But it was unicameral.

Lord Simon of Glaisdale

I hope that my noble friend will acquit me of discourtesy but I am afraid that I do not hear interventions. In fact, I have considered whether I am justified at all in addressing Members of the Committee in debate when I do not do so.

Perhaps I may try to continue the point. It may be understood and it may be argued that we are reviving a bicameral Scottish parliament. I doubt very much whether that is the intention of the Government, although they have asserted repeatedly the value to the constitution of your Lordships' House. The noble Lord, Lord Ewing, mentioned that on Second Reading in most generous terms.

Therefore, it seems to me that these amendments can lead only to misunderstanding and potentially dangerous misunderstanding. I hope that the noble Earl will not press them.

Lord Mishcon

I have a short declaration to make which is that no ancestor of mine was a member of the Parliament that existed in Scotland prior to 1707. But I have every reason to believe that that Parliament had a very great respect for the Ten Commandments.

The Earl of Lindsay

I am tempted to temper the description of my noble friend Lord Mackay of Ardbrecknish when he said that the amendment was trivial because it has raised issues which I hope the Minister will address. There is some confusion as to the exact status of this parliament. A number of different solutions have been put forward by the noble Earl and by other Members of the Committee. It would help if the Minister could lay some of those ghosts to rest.

However, my noble friend's allegation that the amendment is trivial does bear thinking about in that it is the only amendment which the Liberal Democrats have tabled for discussion in Committee.

Lord Mackie of Benshie

This is an individual amendment tabled by the noble Earl.

The Earl of Lindsay

I hope that the Liberal Democrat Party has some sort of collective unity which enables it to take a position on the Bill. What has surprised some Members of the Committee is that the Liberal Democrat Party, which played a crucial role in the constitution convention and which argued very strongly in another place in relation to the issues on which this Bill departs from the conclusions of that convention and took its amendment to the vote, has chosen not to pursue any of those substantial points of difference which have been identified during the passage of the Bill here.

In his substantial Second Reading speech, the noble Lord, Lord Steel, did flag up the point which the honourable Member for Caithness, Sutherland and Easter Ross pursued in the other place.

Lord Thomas of Gresford

The view is taken on these Benches that the sooner this Act is passed the better. Let the people of Scotland and Wales decide without all this shilly-shallying which we are hearing from the Conservative Benches.

The Earl of Lindsay

I hope that the noble Lord, Lord Thomas, will agree that we are beholden to, and, indeed, have been requested by, people outside this Chamber to make sure that the Bill receives full parliamentary scrutiny for the sake of both those who support devolution for Scotland and Wales and those who oppose it.

Lord Thomas of Gresford

The Liberal Democrats want to see what sort of proposals come forward from the Government for the creation of a parliament for Scotland and an assembly for Wales. When those proposals come forward, as we hope they will, then we shall have a full debate on the particular type of devolution which we require.

Lord Campbell of Alloway

Having taken part in this debate, and shortly, I hope, I object to being accused of shilly-shallying. I regard that as an offensive, gratuitous and singularly unpleasant remark. Will the noble Lord understand—he has not been here all this time—that we have a duty to do and we are doing our best to do it?

Lord Thomas of Gresford

There is nothing personal in the expression that I used and if I have caused the noble Lord offence, then of course I withdraw it.

Lord Campbell of Alloway

Thank you, accepted.

The Earl of Lindsay

Perhaps I may make one point about the amendment which was covered largely by the noble Lord, Lord Howie of Troon. The noble Earl, Lord Mar and Kellie, helpfully circulated a letter to Members of this House who took part in the Second Reading debate to explain, first, that his amendment does not seek to bring any harm to the Bill, but secondly, that there is a danger that we may have two parliaments in Scotland.

In some respects, whatever happens to this amendment, should devolution be voted for and delivered, there will be an element of two parliaments operating in Scotland. Every Scot, wherever he or she lives, will have two parliamentary MPs representing him or her. One will sit in Scotland dealing with those affairs which are dealt with in Scotland. Another representative will sit in Westminster dealing with those affairs which are dealt with in Westminster. There will be an inevitable confusion, on which the White Paper may or may not throw light, as to those affairs which are partly dealt with in Scotland and partly dealt with in Westminster.

The more important point about the danger of having two parliaments in Scotland is the point raised by the noble Lord, Lord Howie of Troon. He quite correctly was reminded of the fact that the proposals being put forward by the Government are for unicameral government in Scotland. Uniquely in the United Kingdom, the Scots are to have a parliament devolved to them which is capable of creating primary legislation but which will not have any ability to revise that primary legislation. There will be no counterbalance so that a second look can be taken at any suspected excesses achieved by that single chamber.

Perhaps the Minister will pass on a request to those completing the White Paper. During the debates on the Queen's Speech my noble friend Lady Blatch referred to bicamerality and unicamerality. In a letter succeeding that debate the noble Baroness, Lady Hollis of Heigham, said that the Government intended that the Scottish parliament would be a modern and effective parliament with built-in procedures and opportunities for the scrutiny and revision of legislation and its business. Given that much of the parliamentary legislation that affects all Scots will now be changed from a bicameral to a unicameral democratic system it would be useful if the noble Lord could explain, either today or in the White Paper, exactly what built-in procedures the Edinburgh parliament will have in order to replace the role that is now provided by the second Chamber in Westminster.

I return to the amendment moved by the noble Earl, Lord Mar and Kellie. As later stages of the Bill are pending it would be useful if the various questions and uncertainties that have been raised by this amendment were properly put to bed by the Minister.

Lord Taylor of Gryfe

I greatly enjoy the privileges of this House. One of them is the relaxed atmosphere in which debates are conducted. We do not have a Speaker in this House. That imposes on its Members a certain degree of self-discipline. The subject before the Committee today is the question whether or not a referendum should be held. We have had long debate in the course of these proceedings on what kind of parliament there should be, whether it should be a unicameral parliament, and so on. That issue will arise from our deliberations and debates on the White Paper and on the amendment. I appeal to noble Lords to consider in their interventions whether they are discussing the issue of a referendum. That is the issue before us. While I enjoy the historical references to our ancient parliament, I believe that we should try as Members of this House to discipline ourselves into discussing the matter before the House.

Lord Sewel

Phew! I have long since discarded the speaking note that was prepared for this particular amendment. There were times during the debate when I considered that if I had not been here I would not have believed it. It is one of those wonderful occasions when there have been truly cameo performances in your Lordships' House by all concerned. I believe that that is very much valued.

I am in a state of utter and total confusion. Even towards the end of the debate I believed that we were talking about whether or not to insert "re" before "establish". Instead, the noble Earl, Lord Lindsay, went on at great length about unicameral parliaments. The relevance of unicameral parliaments to the insertion of "re" before "establish" totally escapes me, but I am sure that it is a valid point.

My other source of confusion is the following. Before the noble Earl, Lord Mar and Kellie, rose to speak I was absolutely convinced that the previous parliament stood adjourned and that was why it was sought to re-establish it. The noble Earl immediately said that it had been dissolved. How one re-establishes a body that has been dissolved I do not know. I do not know whether I am on sure and uncontested historical ground by pointing out that there are no members of that parliament. Those who were members are dead. I may be chancing my arm in the context of some of the contributions to the debate. I look forward to any interventions.

The serious point—virtually all of the contributions come down to this—is that whether we like it or not the kind of parliament proposed in the White Paper—this Bill sets up the referendum—will be fundamentally different in both powers and composition from the parliament that existed prior to 1707, whether that parliament stands dissolved or adjourned. Because of that fundamental difference there is no sensible way in which the new parliament can re-establish the old. That is not a matter of practical reality.

I hope that the noble Earl will not take it amiss if I point out that the more I conducted my personal researches into the parliament of 1707 before coming to the Dispatch Box the more I was persuaded that the workings of the former Scottish Parliament were not a model that we should try to emulate. Certainly, they are not a model of rectitude for the way in which we hope to see Scottish parliamentary business carried out in future.

I have a solution to the problem, which I admit is crude and borne of sheer pragmatism. I propose that we bury the 1707 parliament, adjourned or dissolved, in the shroud of historical obscurity, let it rest and get on with the establishment of a new parliament.

6.15 p.m.

The Earl of Mar and Kellie

On 9th January 1707, at the end of a bitter debate about the ratification of Article 22, which does concern us, the Duke of Atholl—no relation—summed up the constitutional position thus: … it is plain and evident, that, from this, a sovereign Independent Monarchie shall dissolve its constitution, and be at the disposal of England, whose Constitution is not, in the least, to be altered by this Treaty". This is what we are talking about. It is hoped now slightly to reverse that position. The aim of the referendum is the re-establishment of a parliament in Scotland with, admittedly, limited sovereignty.

One must bear in mind that in the past two general elections 22 per cent. of the population voted with the Scottish Nationalist Party. That suggests to me that the Scottish people are very unhappy with the status quo—so unhappy that, rather than modify it, they would rather leave the United Kingdom. However, I believe that the United Kingdom is capable of modification.

I should like to say one word about unicamerality. I believe that if one pursued the Constitutional Convention's blueprint of pre-legislative committees which would consider legislation at the White Paper stage, not merely when it arrived in the form of a Bill, the bicameral function of this House in scrutinising legislation that had barely been looked at by the other end of the building could be incorporated into a unicameral function.

As to the question of dissolution, I had hoped that the noble Lord, Lord Sewel, would produce details of the proclamation. So far the only details available to us on whether or not the parliament was dissolved are those provided by the jottings of the Earl of Mar.

Lord Sewel

I am grateful to the noble Earl for giving way. Her Majesty's Government are prepared to accept the authority of the jottings of the noble Earl's predecessor.

The Earl of Mar and Kellie

I thank the Minister for his kind acceptance of that point. I shall of course withdraw the amendment. The Parliament of 1707 by now has gone, like yesterday. I did not wish to reproduce a parliament made up of lairds, burgesses, on occasion, bishops, and Peers, although I suppose that the hereditary peerage—I think that my noble kinswoman Lady Saltoun of Abernethy was intending to contribute on this aspect— would produce some members of a re-created parliament of 1707. I do not want that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Strabolgi)

I have to inform the Committee that if Amendment No. 4A is agreed to, I cannot call Amendment No. 5.

Lord Simon of Glaisdale moved Amendment No. 4A: Page 1, line 6, leave out ("and tax-varying powers").

The noble and learned Lord said: It falls to me to move the first of a series of amendments to be spoken to in conjunction with it referring to the taxing capacity of a proposed Scottish parliament, and, generally, to finance. I tabled the amendment as an alternative to one already proposed and also to the wording in the Bill. With reference to the Deputy Chairman's observation, I do not intend to ask the Committee to divide on the amendment or the subsequent amendments in my name.

My objection to the Government's phraseology is that it is much too vague. On the previous amendment I drew attention to the fact that there is a joker in the pack—a body of persons who are willing to drive home the Bill, while willing to see the slide down the scale, and to exploit any vagueness.

I have a feeling—I hope that it is not due merely to the unpleasing cynicism that comes with years, both calendar and parliamentary—that we are having the second question about varying taxation because Mr. Blair got into trouble when he made his foray into Scotland. The term "varying taxation" can mean anything or nothing. Taxation includes VAT and Customs and Excise as well as income tax. Income tax itself contains a great many matters. The prime duty of Parliament is to put perfectly clear and understandable propositions to those who are invited to vote.

Amendment No. 4A leaves out the phrase, "and tax-varying powers", and Amendment No. 8A adds the words: with limited power to raise or lower basic rates of income tax". I think that that is what is proposed for the Scottish parliament. I am reinforced in that view as I think that it was in the mind of the Scottish Constitutional Convention, although, again, I speak in deference to the noble Baroness, Lady Ramsay, and the noble Lords, Lord Ewing and Lord Steel. I tabled the amendment in preference to the amendment put forward by the noble Lord, Lord Mackay of Ardbrecknish, the noble Earl, Lord Lindsay, and my noble friend Lady Saltoun, which merely inserts the word "income" before the word "tax". That is an improvement but it does not go far enough. Income tax covers, for example, allowances and tax avoidance. I believe that it would be disastrous to have a different Customs regime north of the Border. It can only cause confusion if we have marginal matters of income tax, tax avoidance, tax allowances, and so on, differently dealt with.

The amendment of my noble friend Lord Perth relates to the power to raise or lower taxes. It is many years since I first met my noble friend Lord Perth. He was brought in with another eminent Scot to give counsel to the Treasury on a matter where there was a distinct difference of departmental opinion. Ever since then I have held him in the highest respect, but I do not think it is going far enough merely to say "raise or lower taxes" because that would certainly include VAT, and probably also Customs and Excise. I tabled my amendment in the hope of hearing the Committee's opinion on these various matters. We do not know very much about what is in the Government's mind in general with regard to the handling of tax. That is why we have all along been in difficulties. Until we know what is in the Government's mind, we do not know what question to be put to the electorate. We have at best to wait for the White Paper.

I have to ask a question arising out of an answer given by the noble Lord, Lord Haskel, to searching questions about the finance and tax provisions under Scottish devolution. He said: My Lords, if the Scottish parliament were to vary the tax rate downwards, Westminster would lose a possible £450 million of revenue but could adjust that from Scotland's block grant".—[Official Report, 18/6/97; col. 1236.] In other words, Scotland would be no better off for lowering taxation. I should like to know in particular how it would work with the raising of taxation. With the great Scottish tradition of education, and with the strong influence of the Liberal Democrats, they might well want to raise taxation specifically to pay for improved education.

Let us suppose that income tax were raised 3p. What effect would that have on the block grant? I hope that the Minister will enlighten us on that and deal with the point made by the noble Lord, Lord Haskel. He did not answer the question but he read his brief, which was very illuminating. It referred back to the effect of raising taxation by 3p in the pound. I hope that the Minister will tell us what is in the Government's mind. If he does, we shall be in a much better position to know what system ought to be adopted.

The subsequent amendments standing in my name are consequential on the two to which I have spoken. I beg to move.

6.30 p.m.

The Earl of Perth

My amendments are grouped with that moved by the noble and learned Lord, but I am not sure whether it is in order for me to speak to them as part of the whole story or separately. In any event, I shall work on the assumption that I should speak to my amendments now.

It is always an honour to follow the noble and learned Lord, Lord Simon. I agree that the words used in the schedule are too vague. It is of first importance that the questions, which appear in the schedule, are totally clear and unambiguous. The first part of the schedule is clear and states: I agree that there should be a Scottish parliament". I have more difficulty with the second part. What is meant by: should have tax-varying powers"? That is a confusing expression and I have tried in my amendments to make it clear what we are being asked to do in voting on that second part. That is why I propose the words "to raise or lower taxes", without in any way trying to suggest what should be part of the White Paper. Until we know what is in the White Paper we should not try to debate it. The form that I propose would make it easier for those for or against taxing to argue their case. The position would be much clearer to the voters, who must reach a decision. In Committee it is not appropriate to argue whether we have limited powers or whatever. That will come later after the publication of the White Paper. However, it is clear that we must get the question right.

I recently spoke with a number of my friends about the whole issue. They told me that I was right to support the first part of the schedule—whether or not we should have a Scottish parliament, although I must confess that I prefer the word "assembly"—but that the second part does not matter too much at this stage because we know that a Scottish parliament will not deal with taxation until later. There are so many other issues to be dealt with; namely, the exact relationship between the Scottish and English parliaments. As regards the issue of taxing, it is argued that the tax will be limited. That is like the argument, "Oh, but the baby is only a little baby". That answer is not good enough. If the second question is not correctly phrased at the start we might raise the whole issue of the Union. I said much about that in my speech on Second Reading and my position is well known. I believe that we must make the wording of the question as clear as possible.

I hope that the Government will accept my amendments in the spirit in which I move them. I am not against the proposals; I am trying to help. I am trying to clarify what is meant by them. I find the words "tax-varying powers" unclear. Indeed, they are fudging the issue, which is the last thing we should do when putting questions to the voters. I hope that my amendment, which tries to clarify the situation, is acceptable to the Government. If I am allowed to do so, I beg to move.

The Deputy Chairman of Committees

With respect to the noble Earl, he cannot move the amendment now. The Committee can deal only with one at a time.

Lord Campbell of Croy

We have heard amendments that have been tabled and addressed by two experienced Cross-Benchers in your Lordships' House. I refer to the noble and learned Lord, Lord Simon of Glaisdale, and the noble Earl, Lord Perth. The matter they have raised is relevant to our examination of the Bill today.

The noble Lord, Lord Taylor of Gryfe, intervened to make a comment with which I entirely agree; that we ought to be concentrating on the terms of the Bill and not dealing with general questions of devolution. However, a tax-varying power is something quite new and the electorate in Scotland should not be asked to vote on whether there should be such a power until the Government have made clear how they propose the power should or could be used and its effect. I hope that when he replies the Minister will be able to assure us on that point.

Last week the press in Scotland were reporting—we do not know whether it is correct or not—that the Chancellor of the Exchequer the right honourable gentleman Mr. Gordon Brown was already finding that the suggestion for a 3p variation in the basic rate of income tax was not practicable and was trying to get this changed in the scheme that is being prepared for a Scottish parliament. This is not surprising, but it is unsettling for the public in Scotland. It is very difficult to formulate proposals in this field: much more difficult than the Government have so far suggested. Have the Government already decided on a change following the Chancellor's consideration of this matter since he came into office and will the proposals on tax by then adopted be clearly set out and explained in the White Paper?

Many points have been raised, again in Scotland, by eminent bankers, accountants and others working in the financial field in Scotland who are asking how is it going to affect people who are working north or south of the Border or with bank accounts north or south of the Border. They will wish to know how it is going to affect dividend income and are the registrars of companies going to find out whether dividends are going to people north or south of the Border—will they be subtracting 3p or adding 3p? If so, it is going to be a huge business to do and also it might be unfair, because if it is decided that it is too difficult or complicated it would be the better-off people in Scotland who would probably benefit if dividends were not altered, whereas those people who have income from sources other than dividends would be worse off.

There are also other points which I will not go into here, but this demonstrates that the proposal for a tax varying power must be absolutely clear and decided and the public must be given a chance to understand everything, because they will look to these eminent financial leaders in Scotland for advice as to whether or not it is a good thing. At the moment they are indicating that they have not yet fathomed what it is that is being proposed. I support what the two noble Lords have suggested.

6.45 p.m.

Lord Mackie of Benshie

I should like to say that I am very pleased with the phrase "tax varying powers". I think the difficulties enunciated by the distinguished speakers before me can be sorted out in the White Paper. "Tax varying" is a much better phrase than the previous one used, which was "tax raising" because people did not understand what "raising" meant. They were not sure if "raising taxes" did not mean putting them up.

Lord Simon of Glaisdale

Would the noble Lord not accept that, if the tax varying power is answered in the White Paper in the affirmative, it is liable, whatever it says in the White Paper, which has no statutory authority, to misinterpretation by those who do not want a limited parliament in Scotland?

Lord Mackie of Benshie

I think the White Paper and all the people who will be talking about the White Paper throughout Scotland will explain fully what is meant. If you are going to put more into this Bill, which is a simple Bill about a referendum, you are only going to confuse the issue.

Lord Renton

We are really concerned here with the exact meaning of certain important words. I hope that the government spokesman when replying to this interesting debate will tell us in the first place exactly what the Government think the expression "tax varying" means. I would have thought that prima facie it means the power to alter existing taxes only and no power to introduce any kind of new tax. Perhaps the government spokesman would let us know whether that is so.

Personally I hope there is no parliament with any tax varying powers and that people will vote that way, but if they are to be voting on this at all I think they would expect to he able to vote for a parliament to raise or lower existing taxes and to introduce new ones. The word "varying" may or may not mean that. I think we should be told what it means. But because of the uncertainty I really do not think it ought to remain in the Bill.

The question is: what should be put in its place? I am sorry to have to say, because I have an immense regard for the noble and learned Lord, Lord Simon of Glaisdale, and immense gratitude to him for the support that he always gives to the improvement of the wording of statutes, that I am a bit worried about his alternative, which concerns limited power—it does not say in what way it is limited—to raise or lower basic rates of income tax. Of course it must be my ignorance but I do not know how a basic rate of taxation differs from any other rate of taxation. If there is a difference perhaps we should be told. But I do not find it satisfactory to have that phrase. I do not think that people would understand it well enough and it does raise a doubt as to the meaning of the expression "limited power".

Now I come to the alternative proposed by the noble Earl, Lord Perth and the noble Lady, Lady Saltoun of Abernethy. They suggest that there should be power to raise or lower taxes. That sounds fine and I would prefer it to "tax varying", but we have to bear in mind that, unless I am wrong, it would not include a power to introduce new taxes unless—and it is arguable—the word "raise" is itself ambiguous. It may be that we use in ordinary conversation the expression "raising taxes". We do not necessarily mean increasing taxes; we mean the power to tax, and that includes the power to impose new taxes. So it may be that the amendment moved by the noble Earl meets the requirements in its ambiguity: in other words it includes the power to raise existing taxes and the power to introduce new ones.

Lord Rees

I rise with a certain diffidence to intervene in this debate because I am very conscious of the stern rebuke from the noble Lord, Lord Thomas, about shilly-shallying and also of the stern rebuke of the noble Lord, Lord Taylor of Gryfe, for whom I have warm regard, that we should exercise a certain self discipline. Perhaps I may say at the outset that if the debate has gone a little wide on this amendment and on earlier amendments it is entirely brought on by the approach of the Government to this very important piece of legislation. Had the Government produced either a White Paper or preferably produced and taken through both Houses a Bill to introduce devolution, then we would know exactly what it is we are to consider and what we are to commend to our fellow countrymen in England, Scotland and Wales. As it is, we are left almost totally in the dark. The debate has gone a little wide, therefore, because before we know exactly the powers, scope and mechanism of the referendum we must guess a little bit about what will be the proposals on which the people are to be asked to vote.

This is a particularly important question which is raised by the amendment of the noble and learned Lord, Lord Simon of Glaisdale, regarding taxing powers, because taxing powers are fundamental to the structure and organisation of the contribution of any legislative body. Some hints have been made at various points over the past few months by the Prime Minister, and indeed beforehand when he was Leader of the Opposition. We understand that even a Prime Minister with such a powerful majority as he evidently has in another place really must not presume too far. After all, he cannot speak for both Chambers of the legislature and there may even be Members on his own Back-Benches— indeed, there is evidence that there may be some—who are a little unhappy about the measures that he has in mind.

However, we understood from the Prime Minister that a Scottish parliament—that is, if such a parliament were established or re-established, and I do not enter into that argument again—is to have powers to reduce or raise income tax by up to a figure of 3 per cent. or 3p in the pound. So far as concerns the reduction of taxes, there is no evidence as to how far such a parliament might reduce taxes. Even that raises a whole raft of questions. Let us assume that the Government of the day have in mind the raising or the reduction of direct taxation. However, that is not what the Bill says. In Clause 1(1) it refers to, tax-varying powers of a Scottish parliament". If they choose in the first clause of the legislation to use different words from those used by the Prime Minister, we must attach some significance to those words; in other words, what exactly are those "tax-varying powers"? To what tax do they apply? If it is direct taxation—for example, income tax—does it also apply to corporation tax? Let us at least simplify the debate for this evening and settle for income tax.

If taxes are to be raised, that will give rise to tremendously delicate questions as to how you define the kind of income on which the impost is to be increased in Scotland. How do you define Scottish income? If that particular sort of income happens to be taxed south of the Border, or even in Wales or Northern Ireland as well, will there be double taxation? These are very technical questions, if the income tax is reduced in relation to Scottish income tax, however defined.

Can the Minister say how the deficit is to be made up? Will the Scottish parliament be entitled to look to UK legislature to increase the funds passing to Scotland because the direct taxation on which the services have been calculated will be reduced by the Scottish parliament? As I said, these are very technical questions, but I believe that the country is entitled to ask them before it is asked to vote on the referendum. We need to know how such a question will be tackled.

I move on now to indirect taxation. If you have different rates of indirect taxation—for example, VAT, Customs duties and excise duties—north of the Border from what applies south of the Border, there will be considerable distortion in what up until now has been one unified market. Will the Minister defend this evening, or indeed at some later stage of the proceedings—if we get that far—such distortions in the UK market? Is he prepared to explain to us how Scottish consumers would be happy with such a situation? There are many such questions to which no answers have so far been given. We have been fobbed off and told that we will discover the answers some time in the course of July from the White Paper.

However, will those questions be answered in that White Paper? My pretext for raising the issues today is that we will need very clear answers to them. Moreover, we shall need time to consider them because they are technical questions which, if they were tackled in any finance Bill, would need a great deal of professional input. I speak as someone who, for good or ill, in both opposition and government, has had to criticise and defend finance Bills. Therefore, I hope that those questions will not be brushed aside. I believe that the noble and learned Lord, Lord Simon of Glaisdale, has performed a signal service in indicating to the Government Front Bench why this is not just a Bill about the mechanics of a referendum. Because of the way in which the Government have chosen to approach the legislation, we must have much more detail about the actual devolutionary measures which they have in mind.

Baroness Carnegy of Lour

My noble friend has made a very important speech. It is no good saying that such matters are irrelevant to a referendum; indeed, they are absolutely relevant and will have a great effect on how people vote. Certainly by the time the White Paper is published, in good time for the whole thing to be explained to people, we hope that we shall know the answers to those questions, even if we do not have them this evening.

For the direct purposes of the amendment, I do not know if the phrase, to raise or lower taxes", as suggested by the noble Earl, Lord Perth, is clearer than "tax-varying powers"; perhaps it is. However, in his amendments, the noble and learned Lord, Lord Simon of Glaisdale, suggests that the wording should refer to the, power to raise or lower basic rates of income tax". On Second Reading, I believe I understood the noble Lord, Lord Williams, to confirm in his summing up that the 3p, plus or minus, income tax suggested by the constitutional convention was the chosen method that would be included in the White Paper. I believe I understood him to confirm that fact, although I cannot actually spot it in my copy of Hansard at present. Perhaps the Minister will confirm in his reply that that is the case.

If that is indeed so, is it perhaps more accurate to use the wording suggested by the noble and learned Lord, in Amendment No. 61A? If the 3p is put on the basic rate, even I can see enormous complications in such an arrangement. However, if that is to be in the White Paper, it is possible that the wording suggested is clearer. I should be most interested to have clarification of what the Minister said on Second Reading and, if possible, an explanation of whether or not the alternative wording suggested by the noble and learned Lord, is better.

Lord Hooson

Clause 1(1) refers to, a referendum [which] shall be held in Scotland on the establishment and tax-varying powers of a Scottish Parliament". However, even if we leave out the words "tax-varying powers" and substitute the wording in Amendment No. 8A, the Bill does not set out what those limited powers of a Scottish parliament are to be. Everyone knows that they will be limited powers, and that they will be spelt out in the White Paper and eventually embodied in a Bill.

I turn now to the second proposition; namely, the tax-varying powers of a Scottish Parliament". There is no need to spell them out at this time any more than it is necessary to spell out the powers of a Scottish parliament because they will, I assume, be circumscribed by the White Paper.

Lord Sanderson of Bowden

I do not want to spend too much time on the amendment because the noble and learned Lord, Lord Simon of Glaisdale, may have gone further than the Government Front Bench would prefer. I believe that the noble Earl, Lord Perth, made a point by clarifying the situation. The term "tax-varying powers" is not as clear to me as the, power to raise or lower taxes". Coming as I do from financial circles north of the Border, I should like the Front Bench opposite to realise that there is tremendous uncertainty there as to what will happen as a result of the publication of the White Paper and the subsequent legislation. Anything that the noble Lord, Lord Sewel, can say to allay the fears of those who are extremely worried about the tax-raising powers in this proposed new parliament would be a great service to everyone, including those who are most concerned with the running of industry and the financial circles north of the Border.

7 p.m.

Lord Ewing of Kirkford

The tremendous uncertainty in Scottish financial circles results from the old process whereby one starts a rumour and then repeats it as often as one possibly can: the rumour then becomes accepted fact. There is absolutely no truth in, for example, what the governor of the Bank of Scotland has been saying about the possibility of a sales tax. There is no truth in the possibility of VAT being raised or lowered. A simple proposition is being put to the people of Scotland; namely, do you want a Scottish parliament with revenue adjusting powers? The document of the constitutional convention makes that absolutely clear. I can confirm to the noble Baroness, Lady Carnegy, that my noble friend the Minister referred at Second Reading to the basic rate of income tax and a variation of 3 pence in the pound either way, either up or down. There was no mention of VAT, corporation tax or any of the other taxes that have been mentioned.

I say to the noble Lord, Lord Renton, that the possibility of a Scottish parliament introducing a new tax is also non-existent because a Scottish parliament's powers will be spelt out when we eventually get the devolution Bill. If we get on with this Bill and discover the result of the referendum we shall then know whether we are to have a devolution Bill. That Bill would spell out the Scottish parliament's powers. The powers in relation to taxation are limited to the basic rate of income tax and a variation of 3 pence in the pound up or down. If we tried to introduce any other new tax, we would be acting ultra vires. We would be acting outside the powers defined in the Bill. I do not understand why there is all this confusion when the issue is quite simple.

Lord Renton

I thank the noble Lord for giving way. What he said in effect is that because eventually there will be another Bill setting out the powers of a Scottish parliament—if the people vote in favour of one—we do not have to worry very much about the exact phrasing of this Bill when it comes to letting the people vote on tax varying or tax raising powers, whatever they may be. But surely we have to get it right at this stage. People must not be asked to vote on something which could be more elaborate, and therefore considerably different, from what they are being asked to vote for now. We must get the question absolutely right as regards what they are asked to vote for under the Bill.

Lord Ewing of Kirkford

I rest my case on the reassurance given by my noble friend Lord Williams of Mostyn to the noble Baroness, Lady Carnegy, at Second Reading. I am assuming that that reassurance, which is on the record, will be part of the White Paper when it is published. Members of the Committee opposite are stacking up problems that simply do not exist.

Lord Hughes

I look forward to what my noble friend the Minister has to say on this matter, particularly in view of what the noble Lord, Lord Ewing, said. The convention's document referred to income tax being raised or lowered by 3 pence. I believe that in the ordinary reading of the English language tax varying powers could not be interpreted as restricting themselves to a single tax. However, if the Minister is to tell us that the use of the tax varying powers will be confined to a variation of income tax, that should be made quite clear.

Lord Mackay of Ardbrecknish

I am sure we are all grateful to the noble and learned Lord, Lord Simon of Glaisdale, and to the noble Earl, Lord Perth, for these amendments which draw our attention to the need to clarify the phrase "tax varying" to draw to people's attention the fact that that means the power to raise or lower taxes. I am doubly grateful to the noble and learned Lord, Lord Simon of Glaisdale, because he has managed to get the noble Lord, Lord Ewing of Kirkford, to his feet to defend the second question of the referendum. Yet if my memory is right, the noble Lord resigned as joint chairman of the constitutional convention in protest at the decision by his party to have a referendum and to have that second question—

Lord Ewing of Kirkford

I correct the noble Lord because I would not want him to continue with his misunderstanding. I am not defending the second question; I am defending the principle of revenue raising or reducing powers for a Scottish parliament. That is a principle that was promised by the late Lord Home of the Hirsel. One of the reasons we failed to secure the 40 per cent. at the previous referendum was the promise made on the part of the Conservative Party at that time.

Lord Mackay of Ardbrecknish

There is nothing like rewriting history. It is amazing how the late Lord Home of the Hirsel is suddenly transformed into a great hero by the party opposite when my recollection is that it did not think much of him when he was Prime Minister. But suddenly he is a great man. He becomes part of the folklore as to why a majority was not achieved in the previous referendum. If one looks at the polls during the run-up to that referendum, one will see that they were badly adrift for the then Labour Government for some weeks before Lord Home intervened.

It is interesting that we have been chastised again by the Liberal Democrat Benches as regards the triviality of these amendments and the fact that we should not bother about them. I believe that the noble Lord, Lord Hooson, was dismissive of any attempt to explore the second question. I know that I am not allowed to quote from certain proceedings—if I were, I would certainly do so—but I commend to him the debates in the House of Commons in Committee stage on 3rd and 4th June when some considerable time was taken up by an amendment of Mr. James Wallace on behalf of the noble Lord's party. The amendment dealt with the second question and proposed incorporating the second question into the first question to make just one question. Not only did Mr. Wallace speak, in moving the amendment and summing up, but also Mr. Gorrie, the new Member for Edinburgh West. Therefore I do not accept that we in this Chamber are wasting time when we discuss these matters. The Scottish leader of the Liberal Democrats in another place spent quite a lot of time debating whether there should be one question. The amendment proposed that the one question should refer to tax raising powers. Clearly, the Liberal Democrat Party in the Commons is still allowed some independence and freedom of thought on government legislation. I have already indicated I am surprised that that amendment is not being moved in this Chamber by the Liberal Democrats. I understand that they do not approve of having a referendum but they feel strongly that there should be only one question.

The question of varying taxation up or down is difficult because it is tied in with the difficult question of the consequences of that either for the Scottish government's expenditure or for Her Majesty's Treasury. I have little doubt that if this Scottish parliament comes about, another penny on the standard rate of tax will most assuredly be needed to cover the costs. Otherwise the costs, which I suspect will be £80 million or £100 million, will have to be met from somewhere in the Scottish block of funds. Therefore the Scottish education budget, the Scottish health budget or moneys to local authorities in Scotland will have to be cut to cover the deficit. Therefore the Scottish parliament will need to raise taxes to cover its running costs. Like Mr. Wallace in another place, I believe that it would be much more honest to ask about tax raising and not tax varying powers. However, if we cannot persuade the Government to go that far, they would do well to consider referring to tax raising or tax varying powers.

My noble friend Lord Campbell of Croy drew our attention to an article last week in the Scotsman which stated that the Government were in some disarray about this part of their White Paper. That may well explain why they are so reluctant to give me a date for the publication of the White Paper. Mr. Peter MacMahon, the Scottish political editor, says that the power to raise or lower the basic rate of income tax is to be dropped by the Government, and members of the ministerial committee on devolution to Scotland and Wales and English regions—it is known as DSWR and, if I am right, is chaired by the noble and learned Lord the Lord Chancellor—have been working overtime on these issues. Even with the help of the two Scottish Members of Parliament in the Treasury team, the Chief Secretary Mr. Darling and the Economic Secretary Mrs. Liddell, they are having some difficulty with this scheme. I am not surprised. I have some difficulty finding out from the Government what it adds up to—or what it subtracts from.

Let us assume for a moment that the tax-varying power means tax reducing. The Scottish parliament will say to the Inland Revenue that instead of collecting 23p in the pound, or whatever the standard rate will be once the Chancellor has presented his Budget tomorrow, those in Scotland will pay only 20p in the pound. The Inland Revenue will be down something like £450 million in their tax take.

I raised the matter on the debate on the Queen's Speech. I was not surprised that the noble Baroness, Lady Jay of Paddington, promised to write to me. She did so; and her letter was interesting but not informative. If I recall the instructions, that is what the ministerial replies are supposed to be. However, she wrote words to the effect that I must wait upon the White Paper.

On the day after the Second Reading of the Bill, I put down a Parliamentary Question for Oral Answer. The noble Lord, Lord Haskel, answered from the Dispatch Box. He did not give me much of an Answer when I posed the Question on the Order Paper. In my supplementary question, I spelt out the very question that I posed to the Committee: what happens when the Inland Revenue is £450 million light? What does that say to the Chancellor of the Exchequer? The noble Lord did not reply to the question even when posed to him by the noble Lord, Lord Marsh. But he answered the question when it was posed to him by the noble Lord, Lord Stoddart of Swindon, who put it rather more bluntly. He asked whether it meant that the English taxpayer will be asked to pay more in taxes in order to make up the £450 million. At that point the noble Lord, Lord Haskel, decided that he had better answer my question. He said, If the Scottish parliament were to vary the tax rate downwards, Westminster would lose a possible £450 million of revenue but could deduct that from Scotland's block grant".—[Official Report, 18/6/97; col. 1236.] I trust that the noble Lord, Lord Sewel, will wind up this debate. My question to him is this. Is that correct? If this parliament decides to reduce tax by 3p in the pound in Scotland, will the Scottish block lose £450 million? I absolutely believe the answer that the Treasury spokesman gives me because I know that the Treasury runs the Government. But I wish to hear it from the lips of a Scottish Office Minister so that the people in Scotland can see that "tax-reducing" is not some kind of magical, painless promise that will come without any problem, but that it will mean that the Scottish budget will have to come down by £450 million.

That is not a huge amount of money in the Scottish budget. In my recollection, the Scottish budget is about £16.5 billion. But I must tell the Government—and every Member of the Committee who has been in government on either side will confirm this—that budgets are not made in terms of the billions. Chief Secretaries to the Treasury, of whom there are a number around this Chamber, look for the £10 million, the £50 million or sometimes even the £1 million, because they all add up. I am pleased to see that at least one former Chief Secretary agrees with me. I can tell the noble Lord, Lord Sewel, that taking £450 million from the Scottish budget will not be easy, nor will it be painless. It is not easy, nor is it painless to keep spending at its current rate in any department in any year. It will be far more difficult to reduce the amount by £450 million.

The reality is that the Government will not reduce by £450 million. So the idea that they may well reduce taxes is nonsense. Perhaps that is why Mr. Wallace had the integrity to put down in his amendment in another place "tax-raising" instead of "tax-varying". However, there is even more to the word "varying" than that.

On 11th June we had a Statement about the comprehensive public spending review. Again the noble Lord, Lord Haskel, and myself had a discussion over the Dispatch Box about the review. I asked whether the comprehensive public spending review would include the Scottish Office. The noble Lord said that it would include every department. I then posed this question. What will happen if it is discovered in the fundamental review—the same ground rules having been applied north and south of the Border and to Wales and Northern Ireland—that the amount of money going to Scotland is excessive and therefore the budget based on the building blocks of spending comes to far less than the Goschen-Barnett formula allows for? Will the Goschen-Barnett formula be cut to accommodate the fundamental spending review? I received some comfort from the noble Lord, Lord Haskel. He said: There is no intention to make any alteration to the Barnett formula until the review has been completed".—[Official Report, 11/6/97; col. 930.] As the review will be completed at about the same time as this parliament in Scotland may be set up, there are some significant financial questions to be answered about the tax-varying powers.

Am I wrong? Is it naughty of me to think for a moment that the Government would love a "No" vote on the second question; that they would quite like to be told, "You cannot have tax-raising powers"? And that is why we have a second question in the referendum. That is why the Government broke with the constitutional convention agreement. That is why they were prepared to break with the Liberal Democrats; and that is why they were prepared to oppose Mr. Wallace's amendment when he put it to the vote. He thought so seriously about the matter that he put the amendment to the vote. Is that why the Labour Party have opposed it all along the line? Would it prefer a "No" vote on these tax-varying powers? We look forward to hearing the Minister on this issue.

I posed him a number of questions which I hope he will be able to answer. Is there any truth in the press reports last week, in particular the article in the Scotsman, that the Government are having so much trouble with the Treasury on this issue that they are having to drop it? Will the noble Lord confirm that if the Scottish parliament decides to vary taxes down, it will face a reduction in the block grant from the Treasury? Will he confirm further that, in order to fund this Scottish parliament, if it comes about, the Government will inevitably have to increase taxes on those of us who live in Scotland in order to fund it; or they will have to cut into Scottish expenditure on health, education, and so on?

Before the noble Lord answers that question and makes it appear easy to cut some money out of the Scottish budget, perhaps I may remind him of all the things that he and his right honourable and honourable friends said in the last election in Scotland about how parsimonious the Government were on public spending in Scotland. If there is any potential for the noble Lord to cut into the Scottish budget, either to fund the parliament or to reduce taxation, it seems to me that some of the statements made at the last election were just window dressing.

The noble and learned Lord, Lord Simon of Glaisdale, and the noble Earl, Lord Perth, asked interesting questions about why we are not open about tax-varying, calling it tax-raising and tax-reducing. I have thrown in another question. Why do we not go along the lines that the Liberal Democrats had the courage to propose in another place; namely, to have one question which says openly that it will be tax-raising and that the idea that it will ever be tax-lowering is pie in the sky?

Lord Sewel

Perhaps I may start by issuing a warning and then seeking the indulgence of the Committee. The matters covered in this group of amendments are somewhat similar to those that we shall address in the next group, so there is a danger that I shall repeat myself. I shall try to reduce the repetition to the minimum and it may be helpful if I try to deal straightaway with some of the questions raised.

I say to the noble Lord, Lord Rees, that the Bill's purpose is simple: to establish whether or not the people in Scotland and Wales will have a vote on the detailed proposals to be put before them by the Government through a White Paper. That is the only subject of the Bill. It is not about spelling out in great detail, or in any detail at all, the nature of the scheme. The scheme will be described and made clear in the White Paper which will be before the electorate in Scotland and Wales prior to the referendum.

Lord Simon of Glaisdale

The noble Lord has put the question to be posed as being: "Do you agree with the proposals in the White Paper?" But the words in the statute that are put to the electorate are: "Do you want tax-varying powers?" The Minister must face the fact that that is what is in the Bill. Is he saying that there should be unlimited tax-varying powers in a Scottish parliament, powers to vary not only income tax. but VAT, Customs, Excise and so on? Does he mean that?

Lord Sewel

No. Let me make it quite clear that what will be discussed are the particular and precise proposals in the White Paper, which will be detailed and limited. They will form the basis of the decision that the people will make in a referendum. The detailed proposals in the White Paper will then form the basis of the Bill establishing the Scottish parliament, which will indicate clearly and explicitly what those tax-raising powers are. To be more helpful, let me go on. Mention was made of varying the opportunity to create new taxes. The definition of varying with which I am working—and so is everyone else—is the power to vary existing taxes, not to bring in new taxes or establish new taxes.

I go further. In everything that we have ever said on taxation in relation to the powers of the Scottish parliament, we have made clear that it relates to income tax. Great mischief-making is going on in some areas by running scare stories that it is something to do with a sales tax or other forms of taxation. The Government have made clear, throughout the whole process, right from the constitutional convention days onwards, that any tax-varying powers would relate purely and solely to the raising and lowering of income tax.

I wish to deal with a point made by the noble and learned Lord, Lord Simon, and, as expected, by the noble Lord, Lord Mackay of Ardbrecknish. It concerned the business of what would happen if the Scottish parliament increased or decreased income tax by 3p in the pound. Let us go over that. The noble Lord, Lord Mackay, is right and I do not see why there is any great mystery about it. It is not something that has been pulled out of a hat nor has it jumped out of a box. Clearly, if you reduce taxation, you have to pay for it. It is as simple as that. Reductions in expenditure must be made. We are not dealing with magic mirrors or something similar. It is a simple proposition.

Let us go over it. If the parliament decided to increase tax, the Inland Revenue would collect the extra tax, which would be paid over to the Scottish parliament by the UK Government. If the parliament decreased tax, then the Inland Revenue's overall tax take would be reduced. To reflect that, the overall level of resources passed to the Scottish parliament by way of block grant would be reduced accordingly. That is, if the Scottish parliament should decide to exercise that power. However, I must also stress that there is a world of difference between having a power and exercising that power through a policy. So let us not have another raft of scare stories that Scottish expenditure will be reduced because there will be a wish to reduce the level of taxation in Scotland.

The first question asked by the noble Lord, Lord Mackay, is whether we are dropping the whole income tax power too. The answer is, no, we are not. Wait for the White Paper to see the details. I have answered the second question. The third question was on the running of the parliament. The amount of resource available to the parliament will go there on the tried and tested basis of the block and formula approach and funding of the parliament will have to come from the resources available to it. It is as simple as that. Again, we are not dealing with fancy figures or magic numbers. That is the reality. We have never tried to avoid it.

I turn to more general points. We believe that it is fundamentally important that people in Scotland should be given the opportunity to express their views specifically on the tax-varying proposals. To establish a parliament is an important step. To give the parliament tax-varying powers goes such a significant step further that the Government believe that it is quite right and proper that there should be a separate decision by the people of Scotland on that power.

Lord Simon of Glaisdale

Can the noble Lord say at what period that revelation came to the Government?

Lord Sewel

It is not so much that the revelation came to the Government. I am trying to bring the revelation to the rest of your Lordships' House. It has been argued that the amendments are intended to clarify the nature of the tax-varying powers of the Scottish parliament on which the Scottish electorate will be invited to vote in the referendum. Their purpose is to change the references to tax-varying powers to refer specifically to income tax and to change references to tax-varying powers to refer instead to powers to raise or lower taxes, if we put the bundle of amendments together.

Members of the Committee have argued that the limited nature of the tax-varying powers which we propose for a Scottish parliament should be reflected in the Bill and in particular there should be no suggestion that the Scottish parliament should be able to change the nature of the tax which it might collect. I hope that at long last I have been able to give an assurance on that— not for the first time—and one which will kill off that mischievous line of argument that we have heard. I understand and appreciate the intention behind the amendments, but I do not believe that they will be helpful additions to the Bill, because they misunderstand the process whereby our proposals for tax-varying powers will be enacted.

The proposition put to the people in Scotland in the referendum is one of principle. The referendum is about issues of principle and not issues of detail. Issues of detail are properly dealt with in the White Paper that forms the basis for the campaign and for the decision at the time when the people come to vote in the referendum. If one starts moving away from principle to detail in the referendum legislation itself, one cannot end the process. It goes on and on. One starts spelling out, as was indicated, the precise nature—dotting i's and crossing t's—of the tax-varying powers. One starts spelling out the details of the general powers which will be transferred. That is not the way to tackle the problem.

The way to tackle the problem and the issue is to make sure that the referendum concentrates on the two principal issues: the establishment of a Scottish parliament and its ability to have tax-varying powers; and giving flesh to those principles and details to those principles through the White Paper which will form the basis of debate and controversy, quite understandably, in Scotland.

7.30 p.m.

Lord Renton

Perhaps the noble Lord will allow me to interrupt him. He must appreciate that a White Paper is not part of the law and that, if there is a "yes" vote enabling the Government to introduce a Bill to lay down the details of a Scottish parliament and the taxing powers, Parliament may not approve all the details of the White Paper when translated into the Bill. Amendments may be made. It may become clear that some of the provisions of the White Paper are simply not workable. So the people will be in a very difficult position and so will the Government.

Lord Sewel

The basis of the referendum is to put to the electorate in Scotland the Government's proposals and to deal with the claim that has been made sometimes in this Chamber and certainly in the other place that there is not a degree of support for the Government's proposals in Scotland and in Wales. That is why the referendum is there: to nail what I would call the misrepresentation that there is not popular support in Scotland and Wales for these proposals. So, it is a means of establishing the degree of popular support in those two countries for the proposals.

Clearly, once we have the White Paper and once there is a referendum, we shall seek to legislate through the Bill to give life to the proposals in that White Paper. So, through all the process, once we get to the stage of this particular Bill having been passed—or, before this Bill is passed—we shall have a White Paper. That will contain the details, as I have said many times. I have only said it so many times because it is a point that I seem to be incapable of getting across to some Members of this Chamber. The White Paper will give the detail. The electorate will vote on the basis of that detail. That is it.

Lord Strathcona and Mount Royal

Perhaps I may interrupt the noble Lord once again. If he wants, as earlier he said he did, to clarify the Government's intentions, can he tell us how he would wish us to react to Amendment No. 8A by the noble and learned Lord, Lord Simon of Glaisdale? That amendment appears to say exactly what he is telling the Committee.

Lord Sewel

What I am advising the Committee— I expect my noble friends to follow that advice—is that we wish to see the Bill remain as it is proposed without any amendment whatsoever, because that is the most straightforward way of dealing with the issue in principle of deciding whether or not the people of Scotland wish to have a parliament with the power to vary taxation. That is the matter of principle. I believe that that is the way in which we ought to proceed.

Lord Simon of Glaisdale

I am most grateful to all those who have taken part in the debate. As I indicated at the outset, the object was to canvass the opinion of this Chamber on this crucial matter in relation to devolution and therefore in relation to the referendum. Naturally, I am all the more grateful to those who preferred my draft to the others. I was not surprised that my noble friend Lord Perth preferred his amendment but it is far too late for me to start quarrelling with him.

The speech of the noble Lord, Lord Mackay, seemed to me to be most effective and his points were not answered. My only cavil was that there escaped from him the typical reaction to the Treasury of a former Minister of a high spending department.

Before I come to the words of the Minister, I should like to make two comments. First, from the outset I have, I hope, made plain that I believe that a Scottish parliament should have revenue powers. I entirely agree with what the noble Lord, Lord Ewing, said about that both at Second Reading and today.

Secondly, power to vary income tax is, I believe, manageable. Power to vary other taxes would be quite impossible. The Layfield Report came down on practical grounds against local income tax. But I am assured by great pundits that modern technology has advanced beyond that point and that, indeed, by the summer there would be no difficulty in a local income tax, either local in England or local in Scotland.

The Minister replied plausibly. But, as a supporter of this Bill, I was deeply disappointed and indeed grieved that, on this crucial matter, he did not answer the point put to him by the noble Lord, Lord Strathcona: what is wrong with my amendment? In fact, the noble Lord, Lord Sewel, appeared to concede that that expresses what the Government wanted to do. But what he said concerned quite a different question: tax varying. He did not deal at all with the fact that that is an extremely vague phrase and that it could be—is likely to be—used by those who would go considerably further than the Government. The Minister said: "We are asking you to legislate now. We are asking you to legislate in ignorance of the White Paper, but in the White Paper all will be divulged". Members of the Committee may remember the prospectus for the South Sea Company, where investors—speculators—were invited to invest in a scheme subsequently to be resolved and divulged.

This Chamber has been asked to legislate in this Bill and it is simply not good enough to say that, although the Bill suggests an unlimited power of taxation, when we come to the present summer reading of the White Paper it will all be cut down. That is simply not good enough.

As I say, I am disappointed because on balance I support the Bill and I also believe that there is scope for a system of referendum in our parliamentary democracy. But not this referendum. I agree with the noble Lord, Lord Steel, and the other speakers from the Liberal Democrat Benches that this referendum is entirely unnecessary.

The noble Lord, Lord Sewel, and other noble Lords— including the noble Lord, Lord Williams of Mostyn— said that the electorate made it perfectly plain at the last general election that they wanted a devolved parliament in Scotland and a devolved assembly in Wales. The former is probable; the latter is extremely questionable. Why then do we need this referendum? For two reasons only. The first is that the answer to the first question, "Do you want a Scottish parliament", would strengthen the hands of the Government in bullying Parliament on these matters—particularly your Lordships. The second question was added late in the day because, as I suggested, Mr. Blair got into trouble in Scotland.

We really must have an answer in relation to the effect on Scottish finances of even the limited power suggested by my amendment. We were not told that. We were told that if income tax is reduced by 3p then the block grant will also be reduced by an equivalent amount—£450 million. That sounds as though there will be a double shortfall of revenue in Scotland. We were not told what would be the financial effect if a Scottish parliament raised taxation for increased expenditure, say, on education. That too was quite unanswered.

In the end this is at the heart of the matter and I for one, as a supporter of the Bill, am gravely disappointed at the response we received. However, I said at the outset that I would withdraw the amendment, if only to let my noble friend move his. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty

I beg to move that the House do now resume. In moving this Motion I suggest that the Committee stage on this Bill be taken not before 8.45 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.