Lords Sitting of 7 July 1997

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Coventry.

Museums and Galleries: Admission Charges
The Earl of Clancartyasked Her Majesty's Government:
What is their policy on the issue of free admission to public museums and galleries in the United Kingdom.
Lord McIntosh of Haringey: My Lords, the decision on whether to offer free admission is one for the governing body of each museum and gallery to make. Nevertheless the Government believe that all members of the community should have the widest possible access to the national collections and are therefore reviewing the practice of charging for admission at some national museums and galleries. I hope that the review will be completed by the end of September.
The Earl of Clancarty: My Lords, I thank the noble Lord for his reply. Even at this late stage will not the Government intervene to stop the introduction of the general admission charge to museums run by National Museums and Galleries on Merseyside, which include the very important Walker Art Gallery, by guaranteeing what I think is in these circumstances the reasonably small amount of money required to prevent the budget from going into deficit?
Lord McIntosh of Haringey: My Lords, we tried. The Secretary of State saw the director of the galleries on 24th June who took back to his trustees the message that we did not want them to charge, at any rate before the completion of our review in September. However, his trustees took the view that their fiduciary duty dictated that they had to charge.
As to making up any deficit, the problem with that is that it would be an open-ended commitment; anyone could introduce charges and require us to make up the deficit.
Baroness Trumpington: My Lords, is the Minister aware that some galleries and museums close on certain days of the week simply because they cannot afford to pay for guards for each room? What do the Government suggest in order that they can pay the guards?
Is the Minister aware that Canterbury Cathedral is now to charge an entrance fee on Sundays?
Lord McIntosh of Haringey: My Lords, as regards Canterbury Cathedral, I fear that that is outside the scope of this Question and of our ability to do anything about.
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We are aware that some museums and galleries have had to restrict opening hours because of financial shortages, and that is very regrettable, but it is up to the trustees of each gallery to make sure that the government grant is used to the best possible effect in order to achieve the widest possible access.
Lord Jenkins of Putney: My Lords, is my noble friend aware that when I became Arts Minister in 1974 I inherited a charging arrangement in respect of all the national museums and galleries? Ten days later they were all free. I shall be very happy to advise my noble friend exactly how that was achieved.
Lord McIntosh of Haringey: My Lords, I congratulate my noble friend on his powers of persuasion in 1974 and we shall certainly take his advice about how to achieve the same effect now. However, I fear that, with charging having been in operation in a number of museums and galleries for some years now, it will be rather more difficult than simply summoning everyone together and telling them to drop charges.
Lord Rotherwick: My Lords, can the Minister tell us what proportion of the admission charge relates to tourists, bearing in mind that when I go away to foreign parts I am, as a museum-goer, obliged to pay entry charges to their museums? If admission were to be free, would it not be extremely sad to miss out on the admission charge that would be levied on tourists?
Lord McIntosh of Haringey: My Lords, the Museums and Galleries Commission has commissioned research from Glasgow Caledonian University into the nature and effect of charging by museums and galleries. One of the items in that research should be the extent of the revenue obtained from tourists. We hope to take the early results from that research into account when we undertake the review and we shall be able to answer the noble Lord's question more fully then.
Lord Strabolgi: My Lords, may I ask my noble friend whether, as part of this review, the Government will consider helping the more important university museums, such as the Ashmolean at Oxford and the Fitzwilliam at Cambridge which are badly in need of financial assistance and house collections of national importance?
Lord McIntosh of Haringey: My Lords, the review as planned does not cover either university museums or local authority museums or galleries but the research to which I referred in my previous answer does and the lessons learnt from museums run by universities and local authorities will be of great value in our review.
The Earl of Carlisle: My Lords, will the noble Lord accept that many benefactors, among whom are forebears of your Lordships, generously gave to the national collections some of their finest works of art, on the understanding that they would be displayed for the benefit of the public free of charge, for ever? Will he please inform those directors of galleries and institutions

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which are contemplating imposing admission charges that, first, we shall be very disappointed and secondly possibly they will be in breach of contract?
Lord McIntosh of Haringey: My Lords, I am sure that it does not need me to inform the directors of museums and galleries of the issue raised by the noble Earl. They are aware that in some cases gifts to their collections were made with conditions which would restrict the imposition of charges and they will take that into account in any decision that they make. But it must be their decision.
Baroness Rawlings: My Lords, will the Government confirm that so long as trustees of national museums and galleries can lawfully make admission charges, Her Majesty's Government when distributing central government grants will not discriminate against those who do so?
Lord McIntosh of Haringey: My Lords, the noble Baroness will be aware that under the Heath administration the 1972 Museums and Galleries Act allowed galleries and museums to impose charges. We cannot and would not discriminate between museums and galleries according to whether or not they charge. We allocate grant according to their needs.
Baroness Hooper: My Lords, I declare an interest as a trustee of the National Museums and Galleries on Merseyside. Will the noble Lord accept that the Merseyside trustees came to their decision to introduce admission charges with the utmost reluctance and it was impossible to delay the introduction because everything had been set in motion? We now see the charges as a marketing tool, emphasising the lowness of the charges and introducing family tickets, season tickets and the like. Does the noble Lord agree, in the event of further government funding not being forthcoming and the introduction of charges becoming more widespread, that the idea of a code of best practice is something which should be studied?
Lord McIntosh of Haringey: My Lords, I readily acknowledge the reluctance of the trustees of the National Museums and Galleries on Merseyside to impose charges. That was confirmed by letter in the Daily Telegraph on Saturday from the chairman of the trustees. I also recognise that the charges they propose to introduce are quite small. But, certainly, their experience will be useful in our review.

Cruelty to Wild Animals: 1951 Report
2.45 p.m.
Lord Denhamasked Her Majesty's Government:
Whether they will cause the Report of the Committee on Cruelty to Wild Animals, 1951 (Command 8266) to be reprinted and to ensure that enough copies are available to Members of both
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Houses of Parliament and to the general public before a Bill or a Resolution on the subject matter of that report is debated in either House.
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, arrangements have been made to ensure that sufficient copies of the report are available to Members of both Houses and to the general public. Peers may obtain copies from the Printed Paper Office. Members of another place may obtain copies from the Vote Office. Members of the public may obtain copies from the Stationery Office, on demand, price £12.60.
Lord Denham: My Lords, the Minister will be aware of the words in his party's manifesto foreshadowing a free vote in Parliament on whether hunting with hounds should be banned by legislation. Is he also aware how grateful Members of both Houses will be that they can now take that decision with the benefit of the one authoritative document that will enable them to do so objectively?
Lord Williams of Mostyn: My Lords, the noble Lord is quite right. The Government's policy means that, as he said, we are committed to allowing a free vote on the issue. As he probably knows better than I, the Scott-Henderson report is about 40 years out of date. Further research, opinions and all contributions to this genuine question of public debate are welcomed.
The Earl of Longford: My Lords, does the Minister agree that the solution is to approve drag hunting, which has all the advantages of galloping over wonderful country in costume and not the disadvantage of cruelty to the fox?
Lord Williams of Mostyn: My Lords, certainly that is a proposed alternative. I do not believe that the noble Lord, Lord Denham, would agree with the thrust of the noble Earl's question. Drag hunting would have the benefit that it could not fairly be described as "the unspeakable in pursuit of the uneatable", which was Oscar Wilde's view of hunting. In any event, the unspeakable in pursuit of the uneatable has now been taken over by Mr. Tyson and Mr. Holyfield.
Baroness Mallalieu: My Lords, last weekend the Prime Minister sent a message of support to the Gay Pride march. Is the Minister aware that on Thursday another minority group, people who live and work in the countryside of our nation and not just those who support hunting with hounds, is gathering in Hyde Park because those people feel that the voice of the countryside may not be listened to in this House and another place? Will the Prime Minister, who said that he would govern on behalf of the whole nation, also send a message of reassurance to the countryside rally on Thursday?
Lord Williams of Mostyn: My Lords, your Lordships will be shocked that I myself was not

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consulted by the Prime Minister as to whether or not he was going to send a message of support to Gay Pride. The noble Baroness makes a very serious and well taken point. I shall certainly undertake that her request is transmitted to the appropriate quarter. It is important that everyone in our community is listened to. I myself live in the country. I do not hunt foxes but some of my best friends do so. It is very important that people who think they are in a minority should have their voice clearly listened to. Perhaps I may say that they are very fortunate indeed to have the voice of moderate, rational reason, which is always the voice of the noble Baroness.
Lord Peyton of Yeovil: My Lords, is the Minister aware that his assurance that everyone will be listened to is extremely welcome? Is he further aware that many people are worried that Ministers in particular, of all governments, listen carefully but, having done so, turn and go in the opposite direction to that advised?
Lord Williams of Mostyn: My Lords, the noble Lord knows perfectly well that he and I often sat late at night on opposite Benches under the last regime; his comment is well justified.
Lord Monson: My Lords, will the Government also consider making available, though it is not a Stationery Office publication, the report of the expert scientific committee chaired by the noble Earl, Lord Cranbrook, published about 20 years ago, which established beyond doubt that fish feel pain and suffer from stress just as much as mammals?
Lord Williams of Mostyn: My Lords, I am not sure that it is for the Government to disseminate the report of the noble Earl, Lord Cranbrook. It is available. It is well known. And those who wish further argument for their views will dip in as appropriate.
Baroness Byford: My Lords, the report to which my noble friend refers covers many aspects of controlling wildlife. Can the Minister assure us that any review that is performed will look at the whole aspect of looking after rabbits, hares, otters and all other such animals? Will it also look at the whole question of trapping, gassing and poisoning as well as hunting which should be taken into consideration? The issue is how to control animals as well as how to prevent cruelty.
Lord Williams of Mostyn: My Lords, it is extremely important that the welfare of all animals is carefully attended to. Whether it is wise to have a panoramic review of every single aspect of mistreatment of animals is questionable. What is likely to be before your Lordships if it passes another House
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is a Private Member's Bill which will be dealt with in the usual way. That seeks to outlaw the hunting of wild mammals with the use of hounds.

Higher Education: Dearing Report
2.52 p.m.
Lord Wallace of Saltaireasked Her Majesty's Government:
How they propose to promote public debate within and beyond Parliament on the future of higher education in the United Kingdom after the publication of the Dearing Report.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, the report of the National Committee of Inquiry into Higher Education is expected to be published later this month. At that point the Government will make a Statement and invite comments on its recommendations, with the intention of making a fuller response later in the year. The Government will also take into account the wide range of consultation already undertaken by the National Committee of Inquiry.
Lord Wallace of Saltaire: My Lords, will the noble Baroness accept that urgency and importance push in different directions in relation to the report? The budgetary squeeze on universities is sufficiently acute for many of them to want to take decisions before the 1998 year. The importance of this for the future of universities suggests that a period of consultation—which may, for example, be from late July to late September, when most of us are on vacation—will not necessarily be such as to encourage wide public understanding.
Baroness Blackstone: My Lords, I am fully aware, having been the head of an academic institution myself, that universities are, in part at least, on holiday during August and September. However, as I am sure the noble Lord is aware, many people in universities work extremely hard even in August and September. It has been known for a long time that the date of publication of the Dearing Committee's report would be towards the end of July. Most academic institutions and the Committee of Vice-Chancellors and Principals are well aware of that fact.
Lord Beloff: My Lords, is the Minister aware that the University of Oxford's congregation met only once in August in the past 50 years? That was to acknowledge and receive a major private benefaction. Where there is money on the table, universities will ignore their so-called holidays.
Baroness Blackstone: My Lords, it is wise of them to ignore their holidays when there is money on the table.
Lord Monkswell: My Lords, is the Minister aware that during the previous administration it became the practice of the Conservative Government to consult on

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major changes in education during the summer vacation period? That gave a bad name to that government in regard to public consultation on significant issues. Can the Minister assure the House that that will not be the practice of the new Government?
Baroness Blackstone: My Lords, I can assure my noble friend that that will not happen. Perhaps I may put a little flesh on what I said earlier. The Dearing inquiry has already consulted widely in drawing up its recommendations. During the course of its work it received written evidence from 840 individuals and organisations and had 150 meetings with interested parties. Therefore, there has already been an enormous amount of consultation. Moreover, on the day of publication I plan to write to the representative bodies enclosing a copy of the Government's Statement and inviting comments on the recommendations addressed to them. We shall be listening to what people have to say throughout the summer and, indeed, in the early autumn.
Lord Pilkington of Oxenford: My Lords, I welcome the statement about more discussion. Has the Minister considered—I have heard rumours to this effect—how replacing A-levels with a baccalaureate-style examination will affect university funding? I ask that in view of the fact that all our neighbours who use the baccalaureate always have four-year university courses, and Scotland, which has the equivalent of the baccalaureate, also has four-year university courses. Therefore, if the baccalaureate is on the cards, has the Minister given thought to the effect on funding?
Baroness Blackstone: My Lords, this supplementary question is rather far from the Question on the Order Paper. However, I am happy to say that a consideration such as whether a baccalaureate should be introduced would take into account the position of higher education and of the universities in particular. Perhaps I may add that no decisions have been made about introducing a baccalaureate and any suggestions in the press that indicate that are inaccurate.

Commercial Vehicles: Weight Limits
2.57 p.m.
Earl Attleeasked Her Majesty's Government:
Whether they have any plans to amend the Construction and Use Regulations to provide for an increase in axle or gross weights of articulated commercial vehicles. In doing so, he declared an interest in that he is president of the trade association affected by the legislation.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Baroness Hayman): My Lords, when the United Kingdom's derogation from certain of the European Community weight limits expires on 31st December 1998 we will allow increases in the
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weight limits for articulated vehicles on international journeys from 38 to 40 tonnes for vehicles with five or more axles and from 35 to 38 tonnes for vehicles with four axles. In both cases the drive axle weight limit will be increased from 10.5 to 11.5 tonnes.
The previous government issued a consultation document which invited views on, among other things, a possible general increase in the maximum weight limit to 44 tonnes for certain six-axle articulated and drawbar vehicles. We are considering the responses and, in particular, the possible effect of any increase in maximum lorry weights on rail freight.
Earl Attlee: My Lords, I thank the Minister for that Answer. What will be the effect of the increase in axle weights in relation to road damage?
Baroness Hayman: My Lords, road and bridge wear depend upon how a vehicle's total weight is spread via the axles to the road surface. Wear is reduced by spreading loads evenly and avoiding heavy individual axles. The 44-tonne six-axle vehicles with the drive axle weight limited to 10.5 tonnes cause no more wear than the 38-tonne five-axle vehicles that we already have.
Lord Brabazon of Tara: My Lords, is the Minister aware that Sub-Committee B of the European Communities Committee, of which I was then a member, recently published a report which came down in favour of 44-tonne six-axle vehicles because they do less damage to the road than the 40-tonne five-axle vehicles which we will have to accept at the end of next year in any case? Is the noble Baroness also aware that there is an estimate of 6,000 to 7,000 lorries being taken off the road if we go to 44 tonnes, most of which would not be applicable for rail freight? For example, petrol tankers delivering to garages by the side of the road would be an area where there would be a substantial reduction in the total number of lorries.
Baroness Hayman: My Lords, I am aware of the arguments that the noble Lord puts forward. Although 44-tonne six-axle lorries would be more efficient and no more damaging than existing vehicles, the responses to the previous government's consultation document on lorry weights confirmed that there would be some loss of freight traffic from rail to road. The Government's overriding goal is to win more freight to the railways. So we shall have to consider that aspect very carefully as we work up proposals for an integrated transport policy.
Lord Berkeley: My Lords, I declare an interest as chairman of the Rail Freight Group. Is the Minister aware that when Sweden raised the maximum lorry weight from 40 to 60 tonnes 23 per cent. of the traffic was lost from rail to road? Does she agree that when 44 tonnes were being taken on six axles there was less pressure on the road surface? Does she further agree that when there are 44-tonne lorries on bridges nose to tail the extra four tonnes must cause more damage to big bridges?
Baroness Hayman: My Lords, my noble friend's contribution shows clearly that there is not a unanimity

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of view on this issue and that we have to weigh up carefully the arguments that have been put in response to the consultation document and look carefully at the impact on rail freight.
Earl Attlee: My Lords, does the Minister also accept the need to achieve standardisation of maximum weights right across the EU? How will she achieve that?
Baroness Hayman: I suspect not single-handedly, my Lords. Many countries find that it is in their interests not to standardise in the sense that we have to have standardisation for international traffic but not necessarily for national traffic. There is also the issue of not having standardisation between journeys that take place only by road and having perhaps different weights for those that involve rail and road journeys. There are some complexities involved.
Lord Elton: My Lords, will the noble Baroness tell attentive but ill-informed Members of the House like myself whether they are right in thinking that she did say that we shall shortly be obliged to admit lorries of greater axle weight than in the past? If that is the case, are we to face a massive programme of bridge closure, strengthening and cost?
Baroness Hayman: That was what I said, my Lords. We are under an obligation from 1st January 1999 to accept those lorries with higher axle weights. That has brought with it a programme of bridge strengthening, because we are equally under an obligation to have for international transport the primary routes available to those vehicles. By 1st January 1999 the Highways Agency aims to ensure that 40-tonne vehicles can use all structures carrying trunk roads and other important routes over trunk roads.
Lord Carmichael of Kelvingrove: My Lords, can my noble friend give any idea of the number of bridges on country roads or in remote places that may need to be blocked off? It would be quite impractical to strengthen all of them. Many are of a masonry construction and not steel. It would be almost impossible to strengthen all of them. Has that point been considered with care? Will we have a whole series of signs saying, "No access to this road for vehicles over 44 tonnes in weight"?
Baroness Hayman: My Lords, those are precisely the issues the Highways Agency has been addressing. It makes sense for the Highways Agency to concentrate on the motorway and trunk road network and for local authorities to concentrate on strengthening only those bridges on the routes where the most substantial flows of HGVs will take place. In most cases this will mean the primary route network, but we have to consider the areas where there are local roads leading to important industrial sites which need access.
Lord Peyton of Yeovil: My Lords, can the noble Baroness assure the House that there will be a sufficient
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interval—say, a few weeks—before these new weights come into force so that Westminster Bridge can be opened just for a short time?
Baroness Hayman: My Lords, I am sure that my honourable friend the Minister of Transport for London will have that point very much in mind. I shall pass the noble Lord's comments on to her.
Lord Evans of Parkside: My Lords, will my noble friend acknowledge that the huge juggernauts she is talking about are all very well on motorways and trunk roads but are an entirely different proposition in small towns and villages? Is there not a case to be made for banning juggernauts of these new huge axle weights from all small towns and villages?
Noble Lords: Hear, hear!
Baroness Hayman: My Lords, my noble friend makes a point that is obviously echoed around the House. I believe that a local view needs to be taken on whether to strengthen the structures on non-trunk roads or whether to use alternative measures, which might include a lorry ban.
Lord Avebury: My Lords, what increases in licensing charges will be imposed on these larger vehicles? Can the Minister say how part of the revenue resulting from any increase in licensing charges will be passed on to the local authorities which have to sustain the cost of upgrading the bridges and roads?
Baroness Hayman: My Lords, the cost of the upgrading programme is being met through grants from the Department of Transport. The issue of road fund taxation and its potential hypothecation is one that is considered primarily by the Chancellor.
Baroness O'Cathain: My Lords, the answers the noble Baroness has given us have raised some concerns in my mind as to the amounts of money we shall have to find to meet an EU directive on these vehicles. Is there a case for applying to Brussels for EU structural funds to meet the cost of the directive?
Baroness Hayman: My Lords, on the surface that sounds an attractive proposition. However, I have to say to the noble Baroness that we have had a derogation from 1985 to 1999 to undertake this programme. It is undoubtedly an expensive programme and I shall certainly bear her suggestion in mind.

Business
3.6 p.m.
Lord Carter: My Lords, at a convenient time after 3.30 p.m., my noble friend Lady Blackstone will, with the leave of the House, repeat a Statement that is to be made in another place on the White Paper on excellence in schools. I should like to take this opportunity to remind the House that the Companion indicates that

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discussion on a Statement following the end of the Minister's initial reply to the Opposition spokesmen should be confined to brief comments and questions for clarification.

Succession to the Crown
Lord Archer of Weston-Super-Mare: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That an humble Address be presented to Her Majesty praying that Her Majesty may be graciously pleased to allow that Her undoubted Prerogative and interest may not stand in the way of the consideration by Parliament during the present Session of any measure providing for the removal of any distinction between the sexes in determining the succession to the Crown.—(Lord Archer of Weston-Super-Mare.)
On Question, Motion agreed to.

Coordinated Universal Time Bill [H.L.]
Report received.
Law Officers Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Referendums (Scotland and Wales) Bill
3.9 p.m.
The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Sewel.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 3 [Referendums: supplementary]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 45:
Page 2, line 32, leave out subsection (2) and insert—
("(2) The Secretaries of State, shall appoint an Independent Statutory Commission which shall monitor the conduct of the referendums provided for under this Act, and shall, in the light of the referendums, draw up recommendations for the conduct of future referendums, having regard to the 1996 Report of the Commission on the Conduct of Referendums, such recommendations to be laid before each House of Parliament.").
The noble Lord said: At Second Reading Members of the Committee will remember that I highlighted the need for a referendums Bill and then a referendums Act if, as
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the Government have promised, we are to have a number of referendums. I prayed in aid at a little length the report of the Commission on the Conduct of Referendums. I make no apology for doing so again today. Paragraph 40 of the report states:
"The various Representation of the People Acts govern the way in which elections are run in the UK and, through the provision of a consistent framework, ensure that they are fair. There is no comparable statute for referendums, and the arrangements for elections cannot simply be applied without change".
We certainly know the truth of the last phrase,
"[they] cannot simply be applied without change",
because late on Thursday evening I invited the Committee to consider an amendment which the Government accepted in principle. It will incorporate the two draft orders which accompany this Bill into primary legislation. I did so not only because I believe it is important that we discuss them as primary legislation, but also because—just in case some Members of the Committee missed the real significance—it should allow your Lordships and Members of the other place to rise for the Summer Recess at the end of July. If the Government had not had that "lifebelt", as I would describe it, thrown to them by me they would have had to keep Members of the Committee and of the other place going until about 7th August. I know that Members of the Committee are keen to stay here as long as they possibly can, but I must tell the House that those Members of the other place, especially Scottish MPs whose children have been on holiday now for a week and who go back to school in the middle of August, will not be pleased (at least, that is what they will tell their wives!) if they have to stay down here until almost the end of the school holidays.
I remember in the early 1980s that, for a number of reasons, the House sat well into August and how difficult it was for those of us with young children. Therefore, I very much hope that, having been helpful to the Government, I will hear no more statements from Downing Street or from the Secretary of State for Scotland about how obstructive the Opposition has been on this Bill. I believe by that one single stroke I have proved that I am being critical, but that I am not being obstructive.
My reason for introducing the draft orders and the schedules late on Thursday, apart from trying to help the members of the Committee with their August diary, was to highlight and underline how difficult it is to take the Representation of the People Act and amend it so that it applies to referendums. If the Committee has studied the draft it will see that it runs to many pages. It was on the Order Paper on Tuesday and Thursday of last week with the amendment to incorporate the draft as one of the schedules to the Bill.
I sat in the Library for some little time with the Representation of the People Act, following the changes that were being proposed by the Government in the orders. I hope that they got them all right because if they did not it may prove rather difficult to run the referendums. There may be small technical and logistical problems when it comes to running them. That is why I believe that it would be very much simpler to

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do as the commission suggests and have a proper referendums Act so that all these matters can be properly dealt with.
Perhaps I may return to the words of the commission. It said very clearly that,
"Guidance should be drawn up dealing with organisational, administrative and procedural matters associated with holding a referendum. Established guidelines should include fixed rules for some matters (for example, the organisation of the poll, the election machinery and the count). For other matters, on which it is impossible to determine rules in advance (for example, wording of the question) the guidance should state how a decision should be reached".
That was the case I was arguing at Second Reading. I am not arguing that we should wait for a referendums Act before we have the Scottish and Welsh referendums. That would mean that I was attempting to delay the referendums until later. While I believe that there is a huge argument in favour of having the referendums after the necessary legislation is passed, I appreciate that the Government have a mandate to do it in this way, which I believe is wrong.
On the previous occasions in this country when we have had referendums, we have worked in the same kind of ad hoc way as we are doing in the present case, with amendments being made to the Representation of the People Act. Following the passage of the Referendum Act 1975, the noble Lord, Lord Allen of Abbeydale, was appointed chief counting officer with responsibility for a number of matters relating to the referendum. When it came to the Scotland and Wales Act the incorporation of these provisions was handled by the civil servants in a constitutional unit.
If we are to have a number of referendums—and we are certainly promised them—we ought to consider very seriously the need for an independent statutory commission and a referendums Act. The independent statutory commission would make sure that the referendums were properly run under the proposals in any referendums Act.
Paragraph 47 of the commission's report says,
"There is now a strong case for giving responsibility for the conduct of referendums to an independent body. Public confidence in the neutrality of the conduct of a referendum is essential if the result is to be accepted as legitimate, particularly where the Government is pledged to support a specific outcome, or the interests of Members of Parliament are directly affected".
It is very obvious that in this case the Government have pledged to support a specific outcome.
The independent body would do a number of things. It would advise on the wording of the question; on allocating funds to campaign groups; it would liaise with and act as moderator between any campaign groups; it would act in an ombudsman's role to deal with any complaints; monitor balanced access to broadcasting media—I shall come back to that—provide public information including a balance statement of the opposing arguments—I shall come back to that in another amendment later on this afternoon—supervise the organisation for each polling station and the counting and declaration arrangements.
All these things require to be done—and would be better done—by an independent statutory commission backed by a referendums Act. As I have said. I
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appreciate that that cannot be done in this case, but we have an opportunity before us to set up a body, which I have called an independent statutory commission, in order to monitor the referendums that we are going to hold in September, or whenever it is. As I have said before, that still seems to be a state secret although it is to be hoped, as I believe it is the noble and learned Lord the Lord Advocate who is to reply to me on this occasion, that I might manage to squeeze from him the date for these referendums having signally failed to squeeze it from the noble Lords, Lord Sewel and Lord Williams of Mostyn. Perhaps the noble and learned Lord the Lord Advocate will be a good deal more forthcoming as befits his high office, independent of the Government in many of its aspects. I shall not hold my breath as regards that expectation, but I certainly express it. If the Lord Advocate wishes to tell us the date of the referendums we shall be very grateful. We can then put it in our diaries so that those of us who are fortunate enough to have a vote will be able to make sure that we are at the polling station that day.
As I have said, when we look at how the referendum works it would be useful to have a body which can study the problems that arise—and I imagine that there will be problems—such as the places where it might be better to run it in a slightly different way from the way in which we run elections under the Representation of the People Act. In such cases there are candidates who have election campaigns in their constituencies and so on. That is an entirely different situation from that where there are no candidates, but the electorate has to fill in some answers on a ballot paper. There is also the question of national campaigns, perhaps with local organisations, but nonetheless national campaigns. For example, the returning officer does not have in each constituency a candidate and election agent to turn to if a problem arises which he needs to discuss. All these matters deserve to be looked at.
Amendment No. 47, which is grouped with Amendment No. 45, also asks the independent statutory commission to report on the impartiality of broadcasting material during the campaign. I was happy to accept the assurance from the noble Lord, Lord Williams of Mostyn, late on Thursday evening that that campaign will last about six weeks, give or take a week or two, from the publication of the White Paper, which is the important basis on which people will have to make up their minds. Clearly, the rules to which we are accustomed in relation to broadcasting during general election campaigns are not exactly applicable in this case. I shall not go into any great detail now because I have a more detailed amendment later which relates specifically to broadcasting. I hope that the Government will then be forthcoming and give us their views on what they would expect the rules governing the broadcasters to be during the campaign and, indeed, on how long that campaign will last. Such matters are defined in statute for general elections and local government elections, so everybody knows when the campaign is up and running and when the election rules have to be obeyed.
I hope that the Government will address the issue of establishing a statutory commission and a referendums Act. I do not recall that too much mention was made of the case that I presented at Second Reading—I am not complaining about that—but in summary perhaps I may remind the Government of guideline No. 3 in paragraph 67 of the commission's report. It states:
"If a Government is planning a series of referendums"—
I understand that that is what this Government are doing—
"it has the option of establishing a statutory framework for the conduct of referendums through the enactment of a generic Referendum Act. Such an Act would demonstrate the Government's commitment to the efficient, fair and consistent conduct of referendums. It would provide for the establishment of an independent 'Referendum Commission' and include fixed rules for some matters (for example the organisation of the poll and the count). For other matters, on which it is impossible to determine rules in advance (for example, the wording of the question) the Act should set out how a decision should be reached. Those matters which will be different in each referendum and are likely to be of Parliamentary concern could be dealt with through primary legislation on each occasion".
I know that I cannot have that in the referendums that we are about to have, but I believe that those referendums should provide a learning curve, if I may put it like that, for a general referendums Act and an independent commission. My proposal for an independent statutory commission to look at the way in which the referendums in September are to be conducted would, if implemented, be a major step towards having an independent commission responsible for the holding of all referendums and for a referendums Act. I very much hope that the Government will accept that I am not trying to do anything to disrupt the referendum that they propose to hold in September; instead I am looking at the broader picture of all the referendums that we are promised in the years to come. I beg to move.
The Lord Advocate (Lord Hardie): As the noble Lord, Lord Mackay of Ardbrecknish, explained, these two amendments relate to the establishment of an independent commission to monitor the conduct of the referendums provided for under this Bill and then to draw up recommendations for the future conduct of referendums. I could understand the noble Lord's comments if this was to be the first ever referendum but, as the report of the Commission on the Conduct of Referendums acknowledges, previous referendums have been held successfully without guidelines and without such a commission and I have no doubt that forthcoming referendums will be conducted as successfully. The Government do not therefore see the need to set up such a statutory commission, as the noble Lord has suggested.
Each referendum is different. Whether it is a UK-wide referendum or in relation to a specific part of the country, there are bound to be differences in the conduct. The answer to questions such as how many questions there should be on the ballot paper or the wording of the propositions will depend on the issue in the particular referendum in question. I do not see how it will be possible to set down general rules for all future referendums. Quite rightly, I believe that Parliament will
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wish to consider the legislation providing for each referendum as we are doing here today. We will therefore have the opportunity to consider how each individual referendum will be run, so I do not think anything will be gained by accepting these amendments.
Amendment No. 45 is unnecessary and would be likely to lead to delay in holding the referendums in Scotland and Wales, despite the statement by the noble Lord, Lord Mackay of Ardbrecknish, that that is not his intention. The Government were elected on their manifesto commitment to legislate for a Scottish parliament and a Welsh assembly in our first year, following referendums. This Bill has been introduced to implement that commitment. Furthermore, we are committed to the referendums taking place not later than the autumn of 1997. At this stage perhaps I may put the noble Lord out of his misery. I regret that I am unable to be more precise than were my noble friends, but I am pleased to note—I have concern for the noble Lord's health—that he did not hold his breath while awaiting this information.
I turn now to Amendment No. 47, which would require the independent statutory commission to report on the impartiality of broadcasting and on the publication and distribution of campaign material. There are already rules on broadcasting which require fairness, balance and impartiality. I do not consider that any improvements can be made to these rules by an independent commission.
Under the broadcasting arrangements in this country, responsibility for what is broadcast on television and radio rests with the broadcasters and the regulatory bodies—that is, the governors of the BBC, the Independent Television Commission, S4C (the Welsh Fourth Channel Authority) and the Radio Authority. These bodies are already independent of the government and are responsible for safeguarding the public interest in broadcasting. In carrying out their responsibilities, the regulatory bodies have a duty to treat controversial subjects with due accuracy and impartiality, both in news services and in the more general area of programmes dealing with matters of public policy or of political controversy. Each body is required to establish and follow a code to ensure that those general principles are followed. The code ensures that reporting is dispassionate, wide-ranging and well informed. Programme-makers must ensure that over a reasonable period of time a proper balance of different points of view is achieved. In my respectful submission, the amendment would not add either to the code or to the practice which already exists.
The noble Lord referred to the period of time, but I anticipate that once the Bill is passed and once the date of the referendum is known and published, the period will have begun and broadcasters will then be under an obligation to ensure that due impartiality is observed. In all the circumstances, I cannot accept the amendment and I urge the noble Lord to withdraw it.
Lord Campbell of Croy: I rise to speak because of experience of the only three referendums to have taken place in the United Kingdom. I played a fairly prominent part in the referendum in 1975 on whether

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we should stay in the EEC, as it then was, and in 1979 I took part in the referendum in Scotland—not in Wales—but both were held on the same day on that occasion.
As I have said, both in 1979 in this House and more recently, there were quite a number of complaints about what happened and about whether there were proper rules governing the Scottish referendum. I even had a debate in this House nine days after polling day, when a number of noble Lords raised points about that referendum.
Since 1979 there has been a feeling that a referendum is likely to be a rare event in this country, but as my noble friend has pointed out it appears that we are in for a rash of referendums in future. Therefore, it seems sensible to try to draw up some general rules. Of course, each referendum will deal with a different subject. However, in 1979 in Scotland there was three months' notice. The polling day of 1st March was announced at the end of November. Even with all that time there were many complaints about the running of it because in those days a referendum was something quite new. I believe that it would be worth while drawing up some rules. Recommendations have been made by a body that has looked at the whole of this matter.
I can understand why the Government say that perhaps there is not time to do all of this before September, but I believe that, in the light of the experience of the only three referendums that have ever been held in this country, in principle my noble friend's suggestion that something should be set up to deal with referendums in general in future is very sensible.
3.30 p.m.
Lord Campbell of Alloway: This is a serious problem and another manifestation of the absence in this Bill of any means of implementation. One merely has the broad principle but no means of implementing it. A referendum should have some ground rules. It may be that one cannot have general rules because each referendum has its own quality, but surely the Government can accept that there should be ground rules as a safeguard for the authenticity of the result. I took this point, albeit in another form, on Second Reading. This amendment is in a much better form. I cannot see any objection to it. It cannot delay matters. If the noble and learned Lord questions this, can he kindly say why there should be any delay?
If one incorporates in the Bill some ground rules to deal with these subjects—one does not waste time by referring to them because all noble Lords are familiar with them—can there be any conceivable objection to them? My noble friend Lord Mackay of Ardbrecknish has not challenged the principle but merely seeks to perfect it and achieve a reasonable result. If the situation is as the noble and learned Lord has stated, what on earth is the object of Orders in Council in the Bill? I invite the noble and learned Lord to look at Clause 3(1). What are these Orders in Council for if everything is perfectly satisfactory? If it is said that they provide a measure of safeguard one replies that the amendment moved by the noble Lord, Lord Mackay of
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Ardbrecknish, provides a measure of safeguard—and, one suggests, a much better one. I ask that the Government think again about this. Delay is not the answer. I suggest that there is no real objection to it.
Earl Russell: On Saturday I was struck by a slightly unfamiliar moment of sympathy for the Prime Minister. In the course of driving to Oxford along the M.40—I am sure that the noble Baroness, Lady Macleod of Borve, knows what I am about to say next—I saw an enormous notice which announced that delays would be possible until 1999. That must be the advice that the noble and learned Lord is receiving from every quarter.
The noble Lord, Lord Mackay of Ardbrecknish, has made out a very interesting case for a general referendums Act. I am extremely pleased to hear him say that he does not propose to introduce such legislation before the passage of this Bill, which means that a good deal of what he has said is slightly wide of the purposes of this Bill. As to his amendments on the Marshalled List, as far as I understand them they simply say that he is against sin. I hope that the noble Lord who moved the amendment was not in any doubt of it.
Lord Renton: I rise to emphasise the difference between an Order in Council and an independent commission's report. An Order in Council is bound to be party politically motivated because it is formulated by the Government of the day and will very often arouse controversy in both Houses. But if one had an independent commission that advised all concerned on how referendums should be conducted it would be above political suspicion and would be impartial. When it is realised that referendums can have tremendous consequences, and are likely to have in future if they deal with constitutional matters, we should make that big distinction clear in our minds.
Lord Beloff: As always, I rise merely for illumination. I should like to ask the noble and learned Lord the Lord Advocate to explain how it is possible to transfer the responsibilities of the broadcasting authorities for impartiality in general elections to impartiality without further definition in the case of a referendum. One understands that in general elections various conventions have developed over the years that proper weight should be given to all the contesting parties. As has been pointed out, in the proposed referendums there are no contesting parties but simply persons for and persons against. But are the broadcasting authorities required to give some voice also to those who approach the question from neither side? There are those who are neither in favour of the proposed devolution nor against it. Is the Scottish National Party, for whose ideals I retain great admiration, to be allowed a voice during the campaign to put a point of view that is neither "Yes" nor "No" in the ordinary sense? Is there not here a problem of impartiality that should be looked at again?
Lord Hardie: I deal first with the last point raised by the noble Lord, Lord Beloff. Noble Lords will appreciate that I do not speak for the Scottish National

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Party. I do not understand what position it will adopt when the referendum takes place. The issue is not one of favouring or otherwise particular political parties. The obligation on the broadcasters is to provide a balance of different points of view. To answer the noble Lord shortly, the whole question of transposing the rules of broadcasting from general elections to referendums has already been decided by the courts in Scotland. In 1979 during the previous referendum that issue was addressed in Wilson v. IBC. In that case the courts held that it was important to ensure that due impartiality was achieved and that due weight was given to each of the various people who supported or opposed the proposal. The noble Lord can be assured that the courts will preserve and enforce the independence of broadcasters but equally will ensure that they act with due impartiality.
As far as concerns the issue raised by the noble Lord, Lord Renton, I accept that Orders in Council are quite different from legislation. I also accept that on occasions Orders in Council can be in favour of one party. However, as the noble Lord may have failed to appreciate, the noble Lord, Lord Mackay of Ardbrecknish, alluded to that in his speech this afternoon. An amendment was accepted by the Government that Orders in Council would be incorporated into legislation. I can assure the noble Lord that there is no question of partiality, because my noble friend has already approached noble Members opposite to discuss with them the terms of the appropriate—
Lord Renton: With great respect to the noble and learned Lord, perhaps I did not make myself clear. There is a big difference between an Order in Council being incorporated in primary legislation and an Order in Council being the alternative to the report of an independent commission. They are different situations.
Lord Hardie: I should have thought that it would have been much stronger were it incorporated in private legislation, because it would be not only achieved following discussion with the party opposite, but it would be subject to the scrutiny of this place.
I turn now to the point raised by the noble Lord, Lord Campbell of Croy. The procedure to be adopted will be covered by the Act. I adopt the point raised by the noble Earl, Lord Russell, to the effect that if the Committee wishes an independent commission then this is not the appropriate time or place to be considering such a course. It is not necessary or relevant to the Bill, if as the noble Lord, Lord Mackay of Ardbrecknish, indicated, it is not designed to delay the Bill's passage, or, for that matter, to delay the referendum.
Lord Mackay of Ardbrecknish: I am grateful to those Members of the Committee who have spoken on the amendment and supported it. I am also grateful to the noble and learned Lord the Lord Advocate for his response. Of course I appreciate the difficulty of setting up a commission, as I propose, in the short time we have available. The noble Earl, Lord Russell, with whom I have crossed swords on a fair number of occasions, reminded me of certain things that I should avoid doing.
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I think that he was saying that I should avoid trying to encourage this place to sit between now and the September date to pass the legislation necessary to set up such a commission.
What I wanted to do, and I am pleased that I did it, although I rather wish that I had received a better response from the Government, was to raise the general question raised by the Commission on the Conduct of Referendums regarding setting up a statutory commission to look after referendums and doing it on the basis of a referendums Act. I do not want to detain the Committee. The noble and learned Lord the Lord Advocate was being a little general when he thought that we could scrutinise the draft orders now that they are incorporated into legislation. Indeed we could, but it would require a good deal of time spent in the Library. Of course the other place will have an opportunity to scrutinise the proposal when the Bill returns to it with the amendment that the Government have promised to bring forward.
I should give the Committee a flavour of what goes on with draft orders. I do it at random, I suppose. The amendment refers to Section 102 of the Representation of the People Act which relates to no payment for the conveyance of voters. It states:
"For 'the election of a candidate' substitute 'a particular result at the poll'".
We go through section after section of the Representation of the People Act either amending them or saying that they do not apply or that they do apply. The Committee will therefore appreciate that it is not clear; it is reasonably well done if one sits with the Acts.
If we are to have a number of referendums, we should have an Act at which one could look to see how the systems will run and we should not have to do this toing and froing. I appreciate that that was the way that the 1975 referendum was done. Those of us who were around politics at the time, although not in either House, will remember that it was very much a novel idea. It was not thought to be something that was going to be part and parcel of our constitution. The same is true of the 1979 referendum.
The difference this time is that we have a government promising a number of referendums. That is why I believe that it would have been good if we could have had some information from the noble and learned Lord that the Government understood the point being made this afternoon; understood the point being made by the commission, and were prepared to say, "Yes, we will come forward with a referendums Bill which will do for referendums what the Representations of the People Act does for parliamentary and local government elections". In other words, this is not in any way a batty idea of one of the Members of the Opposition Front Bench in this place.
That is in fact the considered view of a commission set up by the Constitution Unit and the Electoral Reform Society, chaired by no less a person than Sir Patrick Nairne who was responsible for the work done to bring the 1975 referendum to the polling station. The deputy chairman was Dr. David Butler, someone we have all watched on television and read pontificating on

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elections and electoral matters. The commission had on it no less a person than the noble Lord, Lord Holme of Cheltenham. I had rather hoped that I might have recruited a Liberal or two to support the idea in principle, but I have long since learnt that to recruit a Liberal or two to say anything mildly critical of the Government is expecting latter-day miracles.
3.45 p.m.
Earl Russell: I do not think that the noble Lord is listening. I did say something sympathetic in principle, but not relevant to the Bill.
Lord Mackay of Ardbrecknish: I heard the noble Earl say that, and I am looking forward to him giving support to the Government for the various proposals on social security about which I was reading in the Sunday newspapers. That may be an interesting debate when it happens.
As I said, the noble Lord, Lord Holme of Cheltenham, was on the commission. The noble Baroness, Lady Gould of Potternewton, was on it. She is now a Government Whip so it was not even a conspiracy between the Liberal Democrats and the Conservative Party. Just to show that it was balanced, my honourable friend Mr. John Whittingdale MP was also on it. The people I have mentioned, and other equally impressive names who were on the commission, gave the matter a great deal of thought and came to that conclusion.
I was disappointed that the noble and learned Lord the Lord Advocate did not give us even a hint that the Government might, after the referendums are out of the way in September, return to the issue and look seriously at the proposition that we should have an Act and a commission for the proper conduct of future referendums.
We shall come to broadcasting in a minute, but just to give the noble and learned Lord the Lord Advocate a bit of notice, I thought that he said the proper balance in broadcasting should be from when we know the date until when the referendum takes place. Every indication is that in this case that will not be very long. In 1979, it was a whole three months. I am not entirely sure that we could have three months of operating the broadcasting rules on the basis of a referendum which is to come. That might be difficult. We will return to that point.
Perhaps I may help my noble Lord, Lord Beloff, and the noble and learned Lord the Lord Advocate who did not seem to know what position the SNP will adopt. He seemed to give the impression to my noble friend that he did not really care. That is not how I read the Scottish press. It seems to me that the Government care a great deal. They are absolutely desperate to recruit the SNP in the "Yes, yes" campaign. Perhaps I should call it the "Yes, yes chorus". I think that we will find later this afternoon that the last thing they want to give the SNP is the option to show how many or how few of my fellow Scots want independence. The reason is simple. The Government know that they need to bolster the numbers wanting devolution with the numbers wanting independence. As I told the Government at an earlier stage, it will mean that in future the Scottish National Party will be able to say, "You would not have won this referendum if it had not
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been for the votes of those who want independence". If that is a recipe for stability in our constitution, then it is Tuesday today!
I believe that the Government should think seriously about that problem when we deal with it later. I hope that I have helped the noble and learned Lord the Lord Advocate by telling him what his party is doing in the political sense as opposed to the legal sense in which he operates. With a certain disappointment that we have not had a more sympathetic response to the general proposition, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 46 not moved.]
Clause 3 agreed to.
[Amendment No. 47 not moved.]
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 48:
After Clause 3, insert the following new clause—
NO PUBLIC MONEY TO BE USED FOR REFERENDUM CAMPAIGNS
(" . No public money shall be paid to any organisation established to campaign for either side on any of the questions in these referendums; nor shall any civil servant engage in political or public debate.").
The noble Lord said: This is a probing amendment to put the Government's intention on record. It relates to the question of whether public money should be paid to any organisation established to campaign on either side or on any of the questions in the referendums. Furthermore, it puts on the face of the Bill the fact that no civil servant shall engage in political or public debate.
I shall address the two parts of the amendment briefly. It is clear that the Government will not stop their activity for the duration of the referendum. It is fair to say that the Government will be campaigning hard in order to obtain a "Yes, yes", vote. Therefore, one can put no constraints on the Government in expressing those views. However, they must be careful, first, about taxpayers' money going into, in this case, the "Yes, yes" side. I understand that there may be a position in which the Government will wish to fund both sides. However, that may be a good deal easier in Wales where there is a "both sides" argument. In Scotland there appears to be a quadrilateral argument—
Lord Elis-Thomas: I am grateful to the former Minister for allowing us to discuss the referendum. Will he tell us which are the two sides in Wales that are so transparently obvious to him?
Lord Mackay of Ardbrecknish: The two sides are those for and those against. I understand that they are even represented within the governing party in Wales where, if they are allowed to have their say, there are some for and some against. I understand that the suggestion that they will not be allowed to have their say is totally unjustified. They will be allowed to campaign against the "Yes" vote. Therefore, there are two sides in Wales.
Theoretically, there are four sides in Scotland. It is a quadrilateral argument because of the two questions. Therefore, if the Government were funding one campaign

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they might have to fund all four, which shows how ridiculous it is to ask two questions in the form in which they are to be asked in the referendum in Scotland.
I wish to establish whether the Government intend to give public funding to any of the groups campaigning in the referendum. If they do not intend to do so will they give the Committee an assurance that no public money will be used to fund the campaign supported by the Government. It is always difficult to create a Chinese wall between what Government Ministers do and do not do, but in Whitehall there is a well exercised way of dealing with that. All of us who have been Ministers know the distinction between operating as a Minister and when wearing one's party political hat. Putting it at its simplest, the government car disappears in the latter. That is the outward manifestation. I trust that people from the press office, who mind the words of every Minister as they drop from their lips, usually recording them in case they are misconstrued or have made a mistake and must be corrected, will not be present. They are never present when a Minister undertakes party political activities.
We must be clear about the funding, the government machine and the position of civil servants. I am sure that the noble Lord, Lord Sewel, will give us an assurance about them, but it is right that we should ask for that. If money is to be disbursed to any organisation's established campaign will it be disbursed to all organisations? I beg to move.
Lord Sewel: The effect of the proposed new clause is to prohibit the public funding of campaigning organisations and civil servants engaging in related political or public debate. I accept it as a probing amendment and on this occasion it is right and proper that the Opposition should seek to probe the Government in order to ensure the proprieties of the whole referendum process. I have no quibble with the Opposition probing on this matter and can say unequivocally that we are sympathetic, understanding and positive in our response.
However, we cannot accept the amendment because the new clause is unnecessary. During the Second Reading in another place, the Secretary of State made it clear that it would be for the political parties to decide how to campaign and that the Government did not propose to provide any state aid to any party to campaign either for or against our proposal. In our view, public funds should not be used to fund campaigning organisations in these referendums. It was not done in 1979 and we have no intention of changing the practice. The campaigning bodies will be independent of government and it would not be appropriate to use public funds to fund their activities. I hope that that satisfies the noble Lord, Lord Mackay, as regards the first point.
As regards civil servants, the noble Lord referred to the well-known practices which exist in Whitehall and the relationship between civil servants and Ministers when acting both as Ministers and party politicians. We expect that practice to continue. I am sure that the noble Lord was not implying that the Civil Service is less than impartial in any of these matters. He is fully aware of the detailed rules governing political activities by civil servants. It is not the Government's intention to change those rules or
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in any way to seek to persuade civil servants to behave improperly in any context. We believe in a politically neutral, impartial Civil Service. We have no intention of asking civil servants to behave in anything other than a proper manner and I reject entirely any suggestions that we are doing anything other than that.
Therefore, I confirm that we have no intention of funding campaigning organisations. I hope that the Committee will accept my assurance that civil servants will, as in all campaigns, act with due propriety during the referendum campaign in accordance with their traditional role. On that basis, I ask the noble Lord to reflect on the fact that there is no need for the new clause and to withdraw it.
4 p.m.
The Earl of Onslow: Perhaps the Minister will help me with one matter. It appears that the Government's policy is that there should be a "Yes, yes" answer to the referendum. That is perfectly reasonable. I do not agree with that but that is what they want. Does that mean that if a Minister campaigns in favour of the referendum, which is government policy, he then receives help from civil servants in that campaign? I cannot see anything wrong with that even though I disagree with it because that is government policy and civil servants are there to carry out government policy. I hope the noble Lord understands my dilemma.
Lord Sewel: In that situation, the Minister would be in the role of the party politician. The shorthand phrase is the one that I take from the noble Lord, Lord Mackay of Ardbrecknish: the Ministerial car disappears.
Lord Mackay of Ardbrecknish: And that is the greatest punishment of all, I must say. I am grateful to the noble Lord, Lord Sewel, for his assurances. They were no less than I would expect. I often wonder how civil servants manage to divine the differences but the Civil Service has a keen awareness of the need to keep apart the political and governmental roles of Ministers. I had no doubt that that would continue but I am pleased to have the Minister's assurance.
On the first proposition about funding, it would have been possible for the Government to have funded the campaigns. I gather that that happened to some extent in 1975, although I may be wrong about that. It did not happen in 1979. However, there was therefore a precedent for that question and raising the issue as to whether public funding would be available. The noble Lord has made it perfectly clear that it will not be available and I am satisfied with his assurances. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 49:
After Clause 3, insert the following new clause—
BROADCASTING: IMPARTIALITY
(" .—(1) Every broadcasting authority and all persons employed by or through any such authority shall take all necessary steps up to and during the referendum campaign to ensure that full impartiality and relevance is observed in the conduct of all interviews, current affairs programmes, editing and reporting as between those arguing for and against the questions required to be answered under sections 1 and 2.
(2) No party political broadcast referring to the referendums or to the affairs of Scotland or Wales shall be transmitted between the enactment of this legislation and the date of the referendums.").
The noble Lord said: This amendment deals with broadcasting and party political broadcasts during the time of the campaign. I referred earlier to the duration of the campaign. I suspect that because this campaign will take place in August, its nature will be considerably different from the campaign fought on the last occasion in late January and February.
I believe also that, 20 years on, the way we fight elections has changed quite dramatically. In 1979 parliamentary elections were still being fought in constituencies with two or three meetings per night. The political meeting was still going strong. The referendum campaign was fought in exactly the same way. I am sure that was true also in Wales. There were meetings up and down the country in village halls and schools which were both for and against the propositions being put to the Scottish and Welsh people.
Nowadays, the number of public meetings at election time has reduced considerably. Sometimes I wonder what parliamentary candidates do these days in the evenings if they do not address public meetings. But there it is.
Therefore, I cannot see the referendum campaign being fought in the same manner as it was the last time, with meetings up and down the country. Therefore, I shall be deprived of the pleasure of sharing platforms with some very interesting people. However, I should be deprived of that pleasure in any event because one or two of them have changed their minds. I certainly remember sharing a platform with Mr. Brian Wilson, who is now a Minister of State. I mean that we shared a platform in the sense that we were not on opposing sides of it. We were both advocating the same "No" result in the campaign. Mr. Wilson has changed.
Viscount Cranborne: He has been "Mandelsoned".
Lord Mackay of Ardbrecknish: No, I said Wilson not Mandelson! Mr. Wilson has changed his mind and I shall not have the pleasure of sharing a platform with him unless I find myself on opposing sides of it. I still live in hope that I may be able to share a platform with Mr. Tam Dalyell.
Those of my noble and honourable friends campaigning in Wales will certainly be able to share platforms with Labour MPs if they wish to do so. On
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the other hand, they may have to campaign in their own campaign, "untainted" so to speak by any Conservatives in it. But that is another issue.
Lord Elis-Thomas: Did the noble Lord, Lord Mackay, refer to Welsh Labour MPs in the plural?
Lord Mackay of Ardbrecknish: My understanding is that there is a plural of Welsh MPs. However, I learnt that from the newspapers in which I believe it was said that up to four Labour MPs in Wales—and perhaps more—have been noted as being opposed to the measure, but perhaps I am doing three of them a disservice. One MP is certainly opposed to the measure and he is reported to have had a dispute with his Chief Whip and the Secretary of State for Wales on the issue.
However, I return to the point that I wish to make. It seems to me that as campaigning will not be conducted in the same way as it was in 1979, and meetings throughout Scotland and Wales will not be the chosen vehicle for campaigning, the importance of the media will be far greater this time than last time. Indeed, in general elections we have seen that the importance of the media has increased hugely. Therefore, it seems to me important that we should ask seriously what will be the rules in relation to broadcasting.
On my feet, I cannot find my way through the draft orders. But my recollection is that the draft order on broadcasting in the Representation of the People Act is not to be included in the draft orders. I am not surprised by that because it would be very difficult to change the wording in the statute—in the Representation of the People Act on broadcasting—to accommodate a referendum.
But that means that we must still ask questions about the impartiality of the broadcasters. The noble and learned Lord the Lord Advocate said that they should be impartial. But we must ask quite clearly what we are looking for. In the 1979 election the ITC programme code provided that justice should be done to the full range of significant views and perspectives during which the issue is active. In Wales, that may be a very simple proposition because there is either a "Yes" vote or a "No" vote. I believe that that is correct, although the noble Lord, Lord Elis-Thomas, seems to doubt that. Therefore, I presume—and this is where I seek guidance—that the broadcasters will have a 50/50 balance on that.
In Scotland, of course the position is rather different because there are four potential sides. It is rather more of a quadrilateral campaign in Scotland. There is the "Yes, yes", the "Yes, no", the "No, yes" and "No, no". Therefore, there are four propositions. I suspect that the "No, yes" and the "No, no" campaigns will not be very easy to tell apart. It seems to me that if you are against the proposition of having an assembly, you campaign to vote against that and you do not sub-divide into those who say that they are against it but think that it should have tax-raising powers and those who think it should not have tax-raising powers. It is possible to interpret the two questions differently. Even if you are against it and have voted "No", when it comes to the second

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question, there may still be two different votes. I am not sure how many campaigns that gives me but it may give me even more than four.
There is a difficulty in defining balance in broadcasting when it comes to this particular referendum in Scotland. The Government may suggest that there will be a broad interpretation and, essentially, it is the first question which will tell. The first question will be the really important question: either "Yes", you are in favour of an assembly, or "No", you are not in favour. The broad balance will be between those two propositions. As we know from the debate last week, those who are in favour are divided between those who think it should be tax raising and those who think it should not be. That merely complicates the issue. Do the Government think that in Scottish terms the balance in broadcasting will be between those in favour and those against on the first question? When the second question comes into play, will that be set aside by the broadcasters? That is a difficult question for the Government to answer. However, it deserves an answer because many people who run the current affairs and news programmes and, indeed, the discussion programmes in Scotland are a little concerned as to exactly how their responsibilities will play when the campaign gets under way.
Before I move on to the second part of my amendment, perhaps I should conclude the first part by saying that I hope that, in both Scotland and Wales, the intention is now to allow the political parties to make up the balance. In that case, in any discussion in Scotland for example— that is, the usual four-way discussions that we have in Scotland—there would only be one representative of the Conservative Party who would be advocating a "No" vote, while the other three would be advocating a "Yes" vote in one form or another. That would make the situation very complicated, although perhaps all three would not be advocating an unqualified yes as I suppose the third one would be advocating a "Yes" vote but only as the first step to independence. However, that takes us back to the previous debate.
I want to know whether the impartiality is to be based on the referendum question and not on the parties in Scotland or in Wales which also has a four-way system. I should imagine that exactly the same thing happens on Welsh television programmes. The second part of the amendment is related to that; namely, the question of party political broadcasts. I understand that such broadcasts were cancelled during the period running up to the 1979 referendum. I would appreciate advice from the Government if, in this case—I would guess from perhaps the passage of this Act or whatever date the Minister will tell me—the party political broadcasts are to be cancelled. I do not expect that there are many party political broadcasts scheduled in August, but just in case there are some then, or indeed early in September, we ought to be clear about the situation. In other words, there should be no party political broadcasts during that time.
The related question is: will there be party political broadcasts given to both sides in the referendum campaign? For example, in Wales will one or two broadcasts be given to those advocating yes and one or two to the noes? The same question applies to Scotland on
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the assumption that we are just going to look at the first question when it comes to working out the different sides. It is important for us to know where we are when it comes to party political broadcasts.
I have raised a number of important questions regarding the broadcasting media. I am sure that none of us has any doubt about the importance of radio and television in our modern political scene. Therefore, just as we think that there ought to be balance when it comes to the play of the parties, so, too, there ought to be balance when it comes to the play of the campaign. At the risk of being shot down in flames again, I should like to conclude my remarks by reading out Guideline 17 from the Commission on the Conduct of Referendums which says:
"A balance should be maintained between the 'Yes' and 'No' viewpoints rather than between the different political parties. Broadcasters should be encouraged to provide a limited amount of airtime for setting out the arguments for each option in the referendum. The content of such broadcasts would be the responsibility of any formally recognised campaign organisations. In the absence of such organisations the Independent Commission should appoint production companies to produce such broadcasts. Party political broadcasts should not normally be transmitted during the referendum campaign".
I beg to move.
4.15 p.m.
Lord Elis-Thomas: When speaking on broadcasting issues, I should declare an interest as chair of Sgrin, the media agency for Wales and also as a director of Marcher Sound. Although the first does not have any direct relevance to current affairs broadcasts, the second does. I should like, first, to express my opposition to both parts of the amendment. I wish to take up the reference to the potential "No" campaign in Wales. I have known Llewellyn Smith MP over many years; I am sure that he would agree to being described as an international socialist. I could call him a few other things, but I shall not do so in this Chamber. I cannot imagine him sharing a platform in a "No" campaign with any Conservative in Wales. That should therefore put an end to that argument. Indeed, I cannot imagine him sharing a platform with any of his Welsh colleagues and the noble Lord should not rely on the Western Mail as regards political reporting. No doubt the Western Mail is absolutely correct when it quotes opinion polls. I am certain that it is not correct when it gets into the realms of political reportage. Let us leave the Welsh Labour Party to sort out its own arguments in the pleasant way that it has always done.
I turn now to the content of the amendment. In a sense, the noble Lord has already received a response from the noble and learned Lord the Lord Advocate when he replied to a previous amendment. It is very dangerous ground when the Opposition lead on trying to include broadcasting clauses in either referendum or election legislation which is not specifically related to Acts regarding representation of the people. Those Acts exist on the statute book in order to ensure that the due impartiality exercised by the broadcasting authorities is continued throughout election periods.
On the phrasing of impartiality, it occurs to me that there may be a printing error in the amendment, although I am sure that there are never any such errors in this Chamber. I believe that there may be an error on the part

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of the mover of the amendment. I say that because the amendment refers to "full impartiality". But what is full impartiality? If there is full impartiality, then clearly there must be something called "partial impartiality". I am merely a simple bilingual, but it seems to me that there are problems here with interpretation. I believe that the noble Lord probably means to refer to due impartiality which means quite something else.
The existing broadcasting authorities are there to ensure on behalf of Parliament that the broadcasters operate in a way which ensures such due impartiality. Reference has already been made to the ITC codes, the BBC producer guidelines and those of the Radio Authority. Equally, S4C has a very detailed compliance policy which includes monitoring and a careful study of the responsible activity of the broadcasters. Therefore, there already exists a whole series of safeguards to ensure that the debate in the referendum will be an impartial one, reflecting all viewpoints.
It is also important to emphasise that the broadcasters have no problem about exercising their statutory function. Indeed, it would be very strange if the governors of the BBC, the members of the national broadcasting councils in the various countries, members of the ITC with their experienced staff—and, indeed, S4C and its monitoring panel—had not already begun to sort out how they will approach the referendum. My private understanding is that they have already done so.
The broadcasters are familiar with the conduct of previous referendums and of course they are aware of the simple differences between an election, which is about electing candidates and therefore requires a balance between parties, and a referendum, which requires a balance between points of view. Indeed, as we approach the referendum, it seems to me that the traditional mission to inform of broadcasters is more appropriate than the notion of due impartiality. When we are dealing with proposals for constitutional change, which the electorate will be asked to take a view on, the mission to inform seems to me a more appropriate way of presenting responsibility than the traditional impartiality of elections.
Therefore, whatever traditional formulation of the objectivity of broadcasting we want to construe in this Chamber, we should understand that there are already ways of doing so. The amendment is completely unnecessary. It seeks to ban party political broadcasts. As someone who once represented Plaid Cymru on the secret broadcasting committee which took decisions on party political broadcasts, I would be very pleased to see them all removed from the television screen. I do not regard them as being very informative or entertaining, which seems to me to be an essential part of broadcasting. However, to suggest that there should be no party political broadcasts at all during the referendum and yet to be able to refer to all those other issues of public policy apart from the conduct of the referendums which will be of interest to the electorate or the parties seems to me a completely unnecessary requirement. Therefore on both those counts I am pleased to oppose the amendment and to try to assure the Opposition that they do no service to their own cause and the cause of democracy in Wales or Scotland—where
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they currently have no representation—in putting forward the amendment. It seems to me that they still have not caught up with the reality of the general election.
Lord Parry: I, too, am opposed to the amendment in principle and in detail. I need underline only one or two of the points made by my noble friend who does not sit on our Benches but who is nevertheless my noble friend from Wales. There has been some concern expressed here— some of it real and some of it imaginary—as to the level of disagreement that exists within my own party in Wales on this issue. I refer to a conversation that took place in this Chamber during the passage of the Wales Bill in the small hours of the morning when two noble Lords from Wales had clashed strongly over an issue. Presiding over us that evening was the former Lord Chancellor, the much missed Lord Elwyn-Jones. When the arguments had echoed and re-echoed through the Chamber he asked what one could usefully add except to quote another noble Lord from Wales, Lord Lloyd George of Dwyfor, who referred to the Welsh as a nation of quarrelsome nightingales. We in Wales argue about this issue, we conduct those arguments melodiously and in the end we shall win a victory.
The Earl of Onslow: Am I alone in being slightly suspicious that those who are in favour of devolution for Wales do not want this amendment?
Earl Russell: The noble Lord, Lord Elis-Thomas, made a rather powerful point about full impartiality. Full impartiality is something which we as party politicians are not particularly well equipped to achieve, however hard we try. We might do much better to leave this to the broadcasting authorities.
Lord Hardie: I dealt previously with the position of the broadcasting authorities and the obligations imposed upon them to reflect different viewpoints and to exercise proper care to ensure impartiality and balance in their programmes. This matter is best left to the broadcasters, as the noble Lord, Lord Elis-Thomas, has said. The tradition has been for government not to interfere with the position of broadcasters. I urge the Committee not to take a different approach. Should the broadcasters fall short of their obligations, they are subject to review by the courts. The courts will ensure that where broadcasters step over the line they are brought back into line as happened with the referendum in 1979 and as happened more recently when a "Panorama" programme featuring the former Prime Minister was not shown in Scotland because the BBC had overstepped the mark.
Lord Mackay of Ardbrecknish: I invite the noble and learned Lord the Lord Advocate to address himself for a few minutes to the question of party political broadcasts during the referendum campaign.
Lord Hardie: This has already been dealt with by the noble Lord, Lord Elis-Thomas.
Noble Lords: He is not the Government!
Lord Hardie: The noble Lord may not be a member of the Government but I do not wish to delay the Committee

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on this matter. Party political broadcasts are a matter for broadcasters to determine at the end of the day. In considering whether they are observing due impartiality they will have to have regard to whether any party political broadcast ought to be allowed. This matter was addressed in the case of Wilson v. The IBC in 1979.
The point made by the noble Lord, Lord Mackay of Ardbrecknish, is well taken. As there may be more parties in favour of a yes vote than there are against it, it would not be appropriate to allocate broadcasting time on a party political basis. That was the decision in Wilson. However, it would not be inappropriate for the broadcasting authorities to allow party political broadcasting, assuming that the time allocated to those in favour of a Scottish parliament is in balance with the time allocated to those who are against a Scottish parliament. The question of balance is ultimately a matter for the broadcasters to achieve. It is not for the Government or for me to provide answers to the interesting questions raised by the noble Lord as to how time should be allocated as between those who vote yes, yes; those who vote yes, no; those who vote no, no; and those who vote no, yes. Ultimately the broadcasters must determine that issue and ensure that they observe the code which is imposed upon them. I urge the noble Lord to withdraw the amendment.
Lord Mackay of Ardbrecknish: We have had an interesting and short debate. I am sorry that the noble Lord, Lord Elis-Thomas, thought that the amendment was unnecessary. As I listened to the noble and learned Lord the Lord Advocate, it seemed to me that the amendment was becoming increasingly necessary and my confusion increased. I am grateful to the noble Lord, Lord Elis-Thomas, for confusing me with a Government Minister. Perhaps he did so because I explain the situation rather more clearly than do Government Ministers, but no doubt they will learn! The noble Lord said that the Representation of the People Act contained measures on elections and broadcasting. That is absolutely right. Am I not right in thinking that the section in the 1993 Act referring to broadcasting is not carried into the draft orders? I refer to that Act from memory. As I am not absolutely sure that I have the correct reference I do not require an answer today, but we do need an answer at some stage. When I read the relevant part of the Act I recall that I understood that that was the case because the matter is based on candidates for election and the balance between candidates and parties.
We all know that one is not allowed to appear on television wearing one's constituency label while one is a candidate during an election period. However, I believe that we therefore need some legislation to govern broadcasting during referendums. At the risk of harking back to the previous debate, this matter perhaps underlines the need for a general referendums Act to address these points.
I do not know who cancelled the party political broadcasts in 1979 but I am assured that they were cancelled. The noble Lord, Lord Elis-Thomas, is indicating to me that the broadcasting authorities cancelled them. I am happy that they have that power and I hope that they will cancel any such broadcasts
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on this occasion. I do not wish to be described as a quarrelsome nightingale. I shall leave that description to the Welsh in case the Committee wishes to describe quarrelsome Scots as birds other than nightingales!
This is an important amendment, not in terms of pressing it to a Division or incorporating it in the Bill, but because it allows us to explore the issue of broadcasting in this context. I think I welcomed the comment of the noble and learned Lord the Lord Advocate that it would not be appropriate to allocate broadcasting time on a party political basis. If that is what he said, I welcome that comment because that was the point I was trying to establish; namely, that broadcasters ought to allocate time according to the sides in the argument—the proposition and the opposition sides of the argument. To that extent I am grateful.
However, this is an important point. As I said in introducing this short debate, broadcasting—television and radio—will be very important in these referendums and will be increasingly important in all future referendums. I therefore believe that we must have the rules on broadcasting very clearly laid down. While I shall withdraw the amendment, I shall read with some care what the noble and learned Lord the Lord Advocate said and may return to the issue at Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Farrington of Ribbleton: I beg leave to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

School Standards White Paper
4.30 p.m.
Baroness Blackstone: My Lords, with the leave of the House, I shall now repeat a Statement on the Government's proposals in the White Paper Excellence in Schools which is being made in another place by my right honourable friend the Secretary of State for Education and Employment. The Statement is as follows:
"The Prime Minister has made it clear that education is the number one priority of this Government. This consultation document and the Budget announcement of an almost £2.5 billion increase in revenue and capital investment in education demonstrates that commitment and our priority. We will publish a separate consultation paper on special educational needs.
"Our proposals focus clearly on the central task of raising standards. We are establishing a new partnership for schools: a new partnership with teachers and the profession. Self-improvement is at the core of success. Schools must take responsibility for accepting that challenge. Good schools will flourish. Under our proposals we will offer increased

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support through the new standards and effectiveness unit to those schools in need of improvement. We will build on best practice from around the world.
"We have set up the standards task force to spearhead our crusade to raise standards throughout the education service.
"The new role for local education authorities will reflect our priorities by focusing on raising standards and not controlling schools. Intervention by LEAs will be in inverse proportion to success.
"All schools and education authorities will establish challenging targets as part of their development plans on which they will be judged. What we propose today will make a difference for everyone involved in the education of our children—parents, teachers and non-teaching staff, governors and the wider community. Our early years plans will lay the ground work, but to provide a firm foundation the best teaching methods must be available in every classroom in the land. Our national literacy and numeracy strategy will ensure that all primary teachers are trained to use the most effective teaching methods. There will be a structured hour devoted each day to both literacy and numeracy in all primary schools.
"Parents are a child's first teacher. They deserve better information and advice in order to increase their involvement in their own child's learning. Home-school agreements will set out rights and responsibilities for home and school. They will explain clearly what is expected of the school, the parent and the pupil. Such agreements will make clear the need for regular and punctual attendance, for good discipline and for the vital role which homework can play in supporting learning in and out of school.
"Parent participation in the life of the school is also vital. Additional parent governors will be complemented by their direct representation on the education committee of their local authority.
"We are offering a new deal for teachers; a new partnership between government and all those involved in education. This Government value teachers and will celebrate good practice. We will introduce a general teaching council, develop advanced-skills teacher posts and provide comprehensive in-service training. There will be a new curriculum for initial teacher training, focusing on literacy and numeracy. A probationary year for all newly qualified teachers will continue their professional development. We will introduce scholarships for the most outstanding teachers, encouraging them to spend a term sharing their knowledge and skills with others. A new awards scheme will recognise the success of individual schools.
"This Government recognise that strong and committed leadership at every level is crucial. The role of the headteacher is critical to the success of the school. We will therefore strengthen headship by introducing a mandatory qualification for all
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newly appointed heads. We will introduce a national training scheme for all existing heads and overhaul the appraisal process for both heads and teachers.
"Last week I set out to the House how we will give young people hope through a new deal for under 25s. Today's White Paper outlines a new approach in order to support areas of greatest disadvantage. Education action zones will draw together a range of initiatives in a partnership approach to raising standards. We will develop the specialist schools programme so that their innovative approach to teaching and learning can benefit the wider family of schools in their area.
"The proposals I am laying out today will make failure less likely. But we know that problems still exist. Where teachers, schools or LEAs are failing we will take decisive action. Children do not get a second chance in school. This White Paper is a vital step in our crusade to raise standards and offer opportunity to all of them. Expectations and aspirations must be raised if we are to succeed. Fair funding, fair admissions and co-operation will reunite the education service. It is time to set aside the cynicism and the culture of complacency. This is a can-do government working with a can—do service. Our children are our future. We owe it to them to give them the best possible start in life.
"There is no more important task today than putting good intentions into practice. This Government will do just that".
My Lords, that concludes the Statement.
4.37 p.m.
Lord Pilkington of Oxenford: My Lords, there is much in this Statement that we welcome. In particular, I should like to underline the massive change of philosophy which the White Paper exemplifies. It is a philosophy in many parts that I have advocated most of my educational life. Perhaps I can point to the issues in the paper which we on this side of the House find very encouraging and contrast them with what the present Government said in the past.
On page 7:
"Schools setting pupils according to ability and further development of innovative approaches to pupil grouping".
On page 11:
"The pursuit of excellence was too often equated with elitism. It was right in the 1980s to introduce the National Curriculum—albeit that it was 20 or 30 years too late."
Who was in power in the 1960s?
"It was right to set up more effective management systems; to develop a more effective inspection system: and to provide more systematic information to parents".
That is very encouraging. It was the policy of the previous government and was attacked by those on the Benches opposite. But I am not criticising. There is more joy in heaven over a sinner that repenteth than over anything else.
I am delighted to see on page 31 Ofsted given such a favourable welcome. Even in my short time in this

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House Ofsted has seemed at times like an invention of the devil. But this repentance is total and complete:
"We arc firmly committed to regular inspection of all schools by OFSTED".
All that is delightful to those of us on this side of the House. An educational philosophy has undergone a certain change. But, as we all know, the devil is in the detail. The problem that the Government will face is the ideology that they are tentatively abandoning and replacing with setting by ability and changes in teacher training colleges in the way of teaching literacy and numeracy are deeply embedded in the education system. I have doubts whether the methods that they will use to transform the education system in a way that I welcome will be adequate. I am also worried that they may require many layers of bureaucracy. For example, the White Paper says on page 27:
"The LEA's task is to challenge schools to raise standards continuously and to apply pressure where they do not. That role is not one of control".
I recognise that. The fact is that in many parts of the country the LEAs have failed to do that. The Government will require those LEAs to insist on setting by ability and new methods of teaching literacy and numeracy. The question I put to the Minister is: does she rely on them doing it?
On page 28 the Government give details of what they will do if the LEAs do not do so:
"a discussion with the chair of governors and the headteacher, including an offer of help … a formal warning, requesting a plan of action from the school … OFSTED to inspect the school".
That is very heavy bureaucracy, especially against a profession which is very reluctant to respond to outside pressure. Will the LEAs do it? That is my first question.
Secondly, the Government say that they are more interested in standards and that they matter more than structure. I take that directly from the report.
As I have often said in the House, I am worried about the English education system providing adequate specialised teaching post-16. The White Paper pays attention to specialist schools; but in no sense—it is possible that the noble Baroness will say that she will come back to the House some months from now to reply to this point—does it give attention to the Dearing Report on post-16 education and on the structures of education that Dearing will require. I should have liked, for example, to have seen the White Paper declare that, in the efforts to improve standards and skills, concentration would be on a better vocational examination, with better vocational technological provision than is at present provided.
The Government say that they will have a new comprehensive system. Does the new comprehensive system still require post-16 schools to cover the whole range of education? They pay respect to France and Germany early in the report, which they say were much better than us historically. Are they prepared to learn a little more from them?
I am also worried about whether the ideals will translate into reality. The proposals for admissions could mean that children will not get to the school that they
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want. They begin, as does the whole of the report, with a delightful ideal. It is the kind of report which says that one must not kick little kittens.
The Government say that they want as many parents as possible to send their children to their preferred school. But—here comes the devil in the detail—
"where demand exceeds supply and one school is more popular than another, some parents will be disappointed".
There is talk about the Audit Commission drawing attention to the level of unfilled school places: 800,000. Most of those 800,000 are in schools which parents do not want their children to attend. Will the Government force people to do so? They say how they intend to do it:
"We will therefore expect to see the development of local forums of head teachers and governors from community, aided and foundation schools, to share information about their schools' admissions arrangements, with administrative support from LEAs".
It will be like a set of ferrets in a sack. Can your Lordships imagine the governors of a declining school advocating sending children to another school? That committee will not achieve choice. There will be problems. I shall be interested to hear what the noble Baroness says about that.
As your Lordships will expect—I shall not dwell on this matter because it will arise much more in other debates—I am concerned about foundation schools and the end of the grant-maintained schools. In effect, the Government have withdrawn their control of capital development. The foundation governors do not have a majority. Although it is true that there are only two LEA governors—I assume that the others are co-opted or parents—the grant-maintained schools will be emasculated.
On page 72 a nice compliment is paid to the independent schools. The noble Baroness can be assured that I shall not talk for too long about this point. The White Paper says that independent schools can give,
"specialist teaching in subjects such as the less common foreign languages",
and certain other things. By the abolition of the assisted places scheme, the Government have stopped pupils from going to them to learn those languages.
This is a curate's egg. It is good in parts. I am delighted with the change of philosophy and interested to see how it will work out. I am worried, however, about the implementation of the proposals. There is a lot of local education authority power and a lot of old state bureaucracy, together with a bit too much rhetoric. "Can do" and "will do"—we shall see.
Lord Tope: My Lords, I too thank the Minister for repeating the Statement. Like the noble Lord, Lord Pilkington, I give a general welcome to it, although I suspect for rather different reasons.
The Liberal Democrats welcome the White Paper and the Statement that has been made. Perhaps, again for similar reasons as given by the noble Lord, Lord Pilkington, perversely, because much of what is in the White Paper has also been in our policy documents. I am tempted to wonder why, if all three parties are so much in agreement on all this, it is still necessary after all these years.

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We welcome particularly the proposals for the general teaching council, a body I have advocated previously in your Lordships' House. I am sure that the Minister can reassure us that the Government will consult widely and will try to reach as wide agreement as possible on the establishment of the council. Much is at stake and the wider the agreement that can be reached when it is established, the more likely it is to be successful.
We also welcome the proposals for target setting for individual schools. We welcome particularly the proposals for teacher training, the return of the probationary year and especially the qualification for head teachers. My regret—I should perhaps mention once again that I am married to a teacher—is that, so far as I understand, there are few proposals for continuing training for teachers throughout their career once they are qualified, apart from the relatively small number of them who will have a scholarship. That is a matter of some concern.
I am sure that we all share the overall aim that the Government have stated: to drive up standards and try to achieve a situation where no child should fail. That is absolutely right. A child has only one chance during his school career. But once again I must agree with the noble Lord, Lord Pilkington: the devil is in the detail. I have not yet had an opportunity to read the White Paper and I shall do so with considerable interest.
We know where we want to go but maybe the route will sometimes be a little different. I worry about the tendency to be over-prescriptive and control more than is necessary and desirable, whether it is by the LEA—a concern of the noble Lord, Lord Pilkington, although not one I share, but then I am also the leader of a local education authority—or by the Government. My worries were not allayed, reading the Guardian this morning, by its reference to,
"the unprecedented control given to ministers over what goes on in the classroom".
It is not Ministers who will drive up the standards, nor Members of your Lordships' House. Teachers will drive up the standards and we must give them the space, the opportunity and, above all, the resources to do the job.
That takes me on to my next points of concern. The Statement refers to "fair funding" and "fair admissions". Fair funding is a very desirable aim. I wish the Minister and her colleagues every success in seeking to achieve it. If they can achieve a system whereby both Lancashire and London feel that they have a fair funding system, she will truly have achieved a miracle. It is inevitable that what will be fair for some will be seen as unfair for those whose share of the cake is a little smaller. That is inevitable. The cake is already too small. The issue is not so much how it is to be divided up, but how big the total cake will be. The concerns about fair funding will be less if greater resources are provided.
As far as I can tell, there is nothing in the White Paper or comments made around it to suggest that there will be in real terms additional new resources to meet the additional new requirements. The Budget Statement last week, though welcome in the sense that it would have been unwelcome if it had not been made, still means in real terms a cut of £200 million in the level of education
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spending for LEAs in the next financial year. If we had not had the Statement it would have been worse. It is still a cut in real terms and does not indicate where the resources are to come from to meet the new requirements.
Related to that, I have considerable worries about how the "payment for results" system will be implemented. That is something I shall certainly want to examine in detail. One of my anxieties, which I suspect will be shared by many schools, is what the position is to be of those schools which have already taken action to drive up standards and therefore start from a higher point than perhaps those that are of more concern. Can the Minister assure us that there will be an equitable scheme to take account of that, particularly for those schools that have improved significantly but can go no further without additional resources which will certainly be financial and may also be space?
I turn now to fair admissions—I suspect an area with which it will be almost as difficult to deal as fair funding. I have not had an opportunity to read the White Paper; I do not know what it says specifically in relation to admission arrangements. Can the Minister tell us how the Government propose to tackle what is, in many areas, a nightmare situation? In some LEAs, my own included, there are a significant number of grant-maintained schools. So there are a large number of different admission authorities, each operating a different system where some parents gain but many, and many children, actually lose. What plans do the Government have to tackle that problem? Do they envisage a role for the LEA in co-ordinating admission arrangements?
Another of my anxieties concerns the consultation period. As I understand it, it is a three-month consultation period ending in early October. At most times of the year a three-month consultation period would be more than adequate. I share and understand the Government's desire to get on with this, but in two weeks the schools in England will be going on holiday; the governors will not be meeting; and the local education authorities will not be meeting. Effectively, the consultation period for schools, for governing bodies, for local education authorities and local authorities has been hard. It is actually no more than six weeks and a fairly difficult six weeks coming, first, at the end of the term and then at the start of the following term. I understand the reasons. It is unfortunate. I hope the Minister can reassure us that if there are late submissions from governing bodies, LEAs and so forth, they will be treated with as much value as those who are perhaps better able to meet what is, under the circumstances, a particularly tight timetable.
In conclusion, the Liberal Democrats welcome the White Paper. We certainly welcome its intentions. Where we are able to support the proposals we will do so; where we are not able to support them, then our criticisms will be constructive.
Baroness Blackstone: My Lords, I am most grateful to the noble Lords, Lord Pilkington and Lord Tope, for welcoming the White Paper. I am also delighted that there seems to be consensus across the political parties

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in relation to it. I am sure that the electorate will be pleased to hear that there is such consensus. I feel that they sometimes get fed up with hearing politicians of cross parties arguing with each other.
However, if I may say so, I felt that the noble Lord, Lord Pilkington, was a little cynical at times in regard to our commitment to try to raise standards in schools. This White Paper is a demonstration of our concern and our passionate wish to improve standards in British schools, and that is what we intend to do.
The noble Lord was being a little cynical also when he suggested that we had always been opposed to a national curriculum. Nothing could be further from the truth. Indeed, my noble friend Lord Callaghan of Cardiff—who is unfortunately no longer in his place— in a famous speech made way back when he was Prime Minister, was the first leading politician to raise the whole issue of the curriculum and whether it could continue to be a secret garden for the teaching profession. We have always felt that there is a strong case for involvement in the curriculum from government, local education authorities and parents as well as the teachers. Of course, we did not necessarily support the exact form of the national curriculum as it was originally introduced.
Perhaps I can say also that in answering questions this afternoon I shall not go back to the issues raised on the assisted places scheme and languages. There will be plenty of time to do that later this week during the Committee stage of the relevant Bill.
The noble Lord, Lord Tope, raised the question of consultation in two respects. First, more specifically, it is our intention to consult widely on how the general teaching council will operate and on its membership. That will include consultation with the teacher's unions.
The noble Lord also raised the question of the time for consultation generally on the White Paper. We are sensitive to the fact that the schools go on holiday at the end of July. However, I hope that in the next two or three weeks there will be time for people to read the White Paper and start the process of discussion. Schools come back early in September and will be able to take up the matter again. They will have another two months after the holidays. That ought to be ample. However, we are sensitive to the issue.
The noble Lord, Lord Pilkington, made some points in relation to grant-maintained schools. He suggested that we intended to emasculate them. Talk of emasculation of those schools is absolute nonsense. Grant-maintained schools will become part of a new framework. Like other schools, they will be able to choose to become a foundation, community or aided school. They will continue to serve their local communities and flourish in a new environment. Foundation status will give grant-maintained schools many of the powers that they currently value. For example, foundation schools will employ their own staff and own their premises, much as GM schools do now.
We are not turning the clock back; we are simply looking for a new framework which incorporates the best of the past and allows all good schools to prosper,
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including grant-maintained schools. But that framework will also reflect the need for all state schools to be part of a local partnership based on fairness and co-operation.
Both the noble Lord, Lord Tope, and the noble Lord, Lord Pilkington, raised questions about parental choice and admission proposals. I can assure your Lordships that we have no intention of reducing parental choice. Quite the reverse. One of the things the last government introduced was partial selection which seriously loaded the dice against certain pupils and created harmful and unnecessary uncertainty for all parents in an area. Recent Audit Commission figures show that around one in five parents did not obtain their genuine first preference of school, even though there were around 800,000 surplus places in the system. We want genuine opportunities for parents to decide between good local specialist and church schools, not a senseless scramble which ends up with massively over-subscribed schools and many disappointed parents.
Finally, in responding to noble Lords speaking for the Opposition parties, perhaps I can pick up the point raised by the noble Lord, Lord Tope, on the question of finance. Of course it is true that fair funding is extremely important—I cannot guarantee the miracle the noble Lord is asking for in making both Lancashire and London happy—but I think he is quite wrong in suggesting that the Budget last week did not provide a substantial real terms increase in funding for our schools. The cash increase will be 5.7 per cent. and the real terms increase will be 2.9 per cent. That is a lot better than our predecessors have done for many years.
5 p.m.
Lord Elton: My Lords, the noble Baroness's welcome words about an ambition to have the best teaching methods available in every classroom appeared, to a careful listener, to fall in that part of the Statement which referred to an early years plan and to the teaching of literacy and numeracy. I hope she can assure the House that it is the Government's intention to see the best teaching methods available in every classroom at all age ranges and that the need extends beyond literacy and numeracy to all other subjects. Many of us have been anxious about teaching methods for many years. I am reassured from what I have heard, not having seen the White Paper, that the turn appears to be away from mixed ability and child-centered teaching. That is reassuring. But even if the teacher training colleges now all adopt this with enthusiasm at once, which is not likely—I wish her every success in changing traditions there—it will still be 40 years before the new intake has worked through the profession. There is therefore a heroic task to be done with in-service training with existing teachers. I hope she can tell us a little more about that.
A lot of not very old dogs cannot learn new tricks. Honest people have been taught difficult methods and cannot adopt new ones. There must be an escape hatch. It is not only children who do not get a second chance in schools; it is also teachers. If a teacher has failed in one school, he or she ought to have an opportunity in another. You can never retrieve a seriously damaged

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reputation with children in a school in which you have lost it. I hope that the Minister will be able to say something therefore about the possibility of giving teachers a second chance before they are put out of the profession. Nothing is more desperate than seeing someone with another 15 years before they draw their pension being ridiculed by children they cannot control. That is a serious problem.
The very welcome news that headteachers will now be trained for their business and management job appeared to announce that the training would be after they had taken post. That being the case, it will be very superficial or it will be some time after responsibility has been taken in the long holiday; or—in my view this is the better solution—anyone who applies for a job as headteacher should in the reasonably distant future have the qualifications to enable him or her to take the job. That is a task to be undertaken by the new General Teaching Council.
Those are the three issues about which I wanted to ask the noble Baroness. I hope that she can help us.
Baroness Blackstone: My Lords, I am most grateful to the noble Lord. He has raised three rather large areas. I hope that he will forgive me if I do not cover all of them in full.
The noble Lord asked about early years education. It is vital that young children should have a balanced curriculum and a curriculum that is broad enough to engage their interest in many things besides literacy and numeracy, whether it be discovering nature or learning how to be good on the trampoline. We have to give young children the opportunity to enjoy themselves— not that that means that teaching about literacy and numeracy need not be enjoyable. We are seeking to redress the balance a little where we feel that insufficient attention has been given to those subjects. But it does not mean that we want our teachers to become Gradgrinds and our children to be falling asleep as they sit in rows reciting, as perhaps happened at the turn of the century.
The noble Lord asked about teachers. Teachers are at the centre of this programme. Without good teachers, without teachers who are enthusiastic and committed to their jobs, we will never raise standards in our schools. It is our intention to try to support those teachers who are in difficulty. We shall do so by a variety of different methods. At the same time we are clear that, if we are to have more rigorous and higher standards for the teaching profession and to build on a clear framework for the professional development of teachers throughout their careers, we need better initial teacher training arrangements, better systems of induction—that is very important as well—and in-service training, which in the first instance will be specially focused on literacy and numeracy. The noble Lord, Lord Tope, also asked about in-service training. It is certainly our intention to continue, and indeed to develop, in-service training as the stock of teachers is as important as the flow of new teachers.
Finally, on the question of headteachers, the Government's view is clear. Without good leadership in all of our schools, however good the assistant teachers
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are, we will not succeed. It is our intention to introduce a qualification for headteachers to be taken before they are appointed to the post of running a school.
Lord Morris of Castle Morris: My Lords, may I press my noble friend on the question of those teachers who, for one reason or another, good or bad, do not come up to the standard which she and we and all parents would expect from those teachers? Is she aware that at the present moment it takes almost two years to remove an incompetent teacher from post? What plans do the Government have to introduce a fair but quick way of dealing with those who are clearly identified as unsatisfactory or under-performing teachers? Will there be what I have heard referred to by the vulgar as a "fast sack" procedure?
Baroness Blackstone: No, my Lords, nothing so vulgar as a fast sack procedure but, I hope, a much better system of appraising teachers so that it is possible to identify as early as possible difficulties that some teachers may be getting into. Better systems of induction, which I mentioned earlier, are also very important. In other words, before we worry about incompetent teachers, we should try to prevent incompetent teachers ever happening. We can do that with better in-service training, better induction and then better appraisal. When all those things fail, and when support offered by headteachers does not lead to an improvement, we will then, after consultation, try to introduce much faster procedures for getting rid of incompetent teachers. It is only fair to them as well as to their pupils.
Earl Russell: My Lords, I ask the noble Baroness to consider whether she was perhaps a little cavalier with what my noble friend Lord Tope had to say about funding. The point is that the Chancellor has revised his inflation forecasts upwards, has corrected his revenue plan projections accordingly, but not his spending projections. According to Mr. Andrew Dilnot of the Institute of Fiscal Studies, this means that the amount of extra money going into education is not, as the noble Baroness suggested, £2.5 billion but £410 million, so she is asking us to be thankful for a rather small mercy.
I also want to take up what she had to say about the best teaching methods. Can she tell us what gives Governments the competence to decide what those are? I was a little alarmed to hear her quoting the phrase "secret garden". That is a phrase I remember very well for it originates from a speech by Mr. Robert Jackson in 1988 which began the Conservative assault on academic freedom which was the subject of my maiden speech. I am a little uncomfortable to see it in this context.
I listened with interest to what the noble Lord, Lord Pilkington of Oxenford, had to say about a very heavy bureaucracy. I wonder whether he is beginning to realise that this policy is perhaps a little too conservative for the Conservatives.
Finally, I should like to take up a phrase which was perhaps prudently not in the Statement but it is in the Government press release on the tapes outside the

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Chamber. I refer to the phrase "zero tolerance of failure". Is that a standard by which the Government are willing to be judged?
Baroness Blackstone: My Lords, as regards the last question from the noble Earl, the answer is yes, that is the standard by which we wish to be judged. Perhaps I may pick up first his point about finance. I believe that the noble Earl has got it wrong. The figure that I quoted earlier, which is a real-terms increase of 2.9 per cent., takes account of higher GDP deflators.
I now turn to the noble Earl's question about the "secret garden". I was rather surprised by what he said on that, particularly since he is an eminent historian. I am sure that the noble Baroness, Lady Perry, will agree with me when I say that the term the "secret garden" goes back many years before Mr. Robert Jackson introduced it in a debate on higher education. It was a term that was used in the 1950s and 1960s to describe the way in which the curriculum was then treated by the teaching profession. I am sorry to be a little didactic on this matter, but the noble Earl's history is wrong.
As regards the teaching profession, there will be many difficulties in defining what constitutes good standards. I am not pretending that it is an easy task, but it is fairly easy for us to recognise when serious failure is taking place and teaching is not being practised properly in the classroom.
Lord Parry: My Lords, I welcome the general thrust of the White Paper and the attempt to reunify the education services of Britain after a long period of division and sub-division and at a time when teachers feel that most of the attacks have been mounted at them rather than the system. I am particularly glad that the special education system will be reviewed in a separate White Paper. I look forward to that as I do debating again the issues raised in this White Paper.
I believe that there has been a very heavy consensus of agreement on some of its main thrusts. The noble Lord, Lord Elton, and I have debated education many times over the years. I follow him in everything that he said, particularly about in-service education and the requalification of headteachers for their specific role. We introduced managerial change on a great scale without contemplating requalifying headmasters for the managerial role that they had to take on.
In my own service as a warden at an in-service education centre, I was conscious that many of our attempts to re-educate teachers were perhaps lightweight and not what teachers themselves wanted. It is absolutely essential that in introducing new impetus into the in-service teaching section, the Government are careful to see that they produce a national scale of in-service education with qualification at the end of it that will give the teachers a new confidence in their role which they gladly take up in this revitalisation of our education system.
Baroness Blackstone: My Lords, I am very grateful for what my noble friend has just said. We see the White Paper as a new deal for teachers as well as for parents
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and pupils. It is very important that we support them. We recognise how important is the job that they do. That recognition of their value and vital role in our society is balanced by the pressure to raise their game where it is necessary. As I have already said, the factor of key importance is effective leadership. That is the really critical factor in the success of schools. Once again, I endorse what my noble friend has just said about the importance of training for head teachers.
Lord Campbell of Croy: My Lords, I was able to get a copy of the White Paper just before the Statement. I have had a quick look through it. Can the noble Baroness confirm that it does not apply to Scotland and contains nothing about Scottish education? If that is so, is there to be a White Paper on education in Scotland and, if so, when? As the noble Baroness will know, the system of education in Scotland is separate and different. For example, a general teaching council was set up in Scotland some years ago. A Scottish curriculum was being put in place when what is called the national curriculum was first being thought out for England and Wales. Those are examples of the considerable differences in the subjects mentioned in the White Paper. Can the noble Baroness answer those questions?
Baroness Blackstone: My Lords, I can confirm that the White Paper is not about education in Scotland. As the noble Lord, Lord Campbell of Croy, has just said, the Scottish education system is different. It is one which many Members of your Lordships' House no doubt admire, as I certainly do. We can learn a great deal from the Scottish education system. One factor is that it introduced a general teaching council quite a long time ago. If only it had happened earlier in England and Wales!
I am unable to answer the more specific question that the noble Lord asked about a White Paper on education in Scotland and when it might be published. I shall certainly write to the noble Lord.
Baroness David: My Lords, can my noble friend enlighten me a little about the phrase,
"Intervention by LEAs will be in inverse proportion to success",
which appears in the Statement? I hope that the LEAs are going to have a larger role than they had before they were diminished by the last government. I remember very well one way in which LEAs could help schools in some difficulty. It may be that one department was in difficulty whereas the rest of the school was not. Advisory teachers would go to the school and help to get the department right without the whole school having to go downhill. I hope that the LEAs will have a bigger role in helping schools and not have to wait until a school has failed before taking action.
Baroness Blackstone: My Lords, I am most grateful to my noble friend for her question. Our proposals mean a new role for LEAs focused on challenging and supporting schools rather than controlling them. Every LEA will be asked to draw up an education development plan showing the target that it has agreed with its

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schools and how it proposes to support them so that the targets are achieved. The plans will be approved by the Secretary of State. Every LEA will be asked to have such a plan in place by April 1999. The LEAs will also have a very important role in advising and, where necessary, challenging schools in the setting of targets. I believe that we have provided a very clear job description for local education authorities. In return we want them to become fully accountable.
Baroness Perry of Southwark: My Lords, I warmly welcome this White Paper and the consensus that it represents. I have one question for the noble Baroness. There were three years in the 1980s when there was a national pilot scheme for induction. It fell apart at the end of three very good years with some very good experimentation, because there was not enough money to continue to give new teachers the one thing they most needed, which was some time in their timetables to reflect on their experience, to be given help and not to have a full timetable. That is expensive and it takes resources. Will that kind of time and the resources it represents be available?
Baroness Blackstone: My Lords, I accept entirely what the noble Baroness, Lady Perry, has just said about the importance of providing adequate time for teachers during an induction period. I cannot answer specifically how much additional time we shall be able to provide. However, it is something on which we shall be consulting the schools, the local education authorities and those in the teacher-training establishments who will be involved to some extent in the support of the initial training of teachers, induction and in-service training.
Lord Ponsonby of Shulbrede: My Lords, I too very much welcome the White Paper. Can my noble friend say something about the role of parents, as she sees it, through this White Paper? The noble Lord, Lord Tope, spoke about teachers driving up standards, but parents will also have a crucial role in doing that. Can we believe any of the rumours we read in the newspapers about homework targets and things of that kind?
Baroness Blackstone: My Lords, I speak as a parent myself—I know that my noble friend Lord Ponsonby is a parent of school-age children—when I say that we believe strongly in the role of parents in supporting their children at school and in working with teachers. We want to see them involved as much as possible. We intend to introduce more family learning schemes to encourage parents to become involved, and to help them. All schools will be required to develop written home/school contracts which parents will be expected to sign. We also want to see greater representation of parents on governing bodies and LEAs. National guidelines will, for the first time, set out the amount and type of homework that pupils of different ages should be expected to do if homework is to play a full part in
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pupils' education. They are meant to be guidelines and they are meant to be helpful to parents as well as to teachers.
Baroness Farrington of Ribbleton: My Lords, I am sorry to say that the 20 minutes for Back-Bench discussion have now elapsed and that we must now move on to other business.

Referendums (Scotland and Wales) Bill
5.21 p.m.
House again in Committee.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 50:
After Clause 3, insert the following new clause—
PROPORTION OF ELECTORS REQUIRED TO SECURE A MAJORITY
(" . A majority in favour of each of the propositions will be certified by the Chief Counting Officer if the proportion of those actually voting in the referendum for the proposition is equal to, or greater than, the proportion given in Schedule (Proportion of electors required to secure a majority) for the relevant percentage of the eligible electorate certified as having voted.").
The noble Lord said: Amendment No. 50 seeks to insert a new clause into the Bill while Amendment No. 83, which is grouped with it, seeks, more importantly, to insert a new schedule. We come now to the question of what forms a majority in a referendum. I am speaking of any referendum, not necessarily of this referendum only. I hope, as I hoped earlier, that we can discuss this matter in a slightly wider context—the context of all the referendums which the Government are promising us over the lifetime of this Parliament.
With regard to the question of what forms a majority, the question is whether or not a proposition has received sufficient assent in order to be taken as the "settled will of the people", as is the usual phrase with regard to Scotland. The Commission on the Conduct of Referendums, to which I have referred on a number of occasions, has not come down on any particular side with regard to thresholds. Paragraph 92 of its report points out that,
"General elections in the UK are decided by simple majorities in each constituency. Simple majorities were required province-wide in the 1973 Northern Ireland referendum and nationwide in the 1975 European referendum. The 40% rule applied in the Scottish and Welsh referendums in 1979 involved a double test: a majority for change and a substantial turnout".
Paragraph 93 states:
"The application of a threshold in future referendums is likely to be one of the most difficult issues to resolve. There are three main options: a simple majority of one; a proportion of those voting; a proportion of those entitled to vote".
At the risk of introducing a fourth main option, I believe that my proposal gives us an opportunity to discuss a combination of the number of those who vote and the majority achieved in that vote.
Various different systems are used around the world. Australia requires a majority of voters nationally and in at least four of the six member states. In the past, New Zealand required a 60 per cent. "Yes" vote and in Italy

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referendums can succeed only if the turnout exceeds 50 per cent. In 1975 the White Paper which introduced the referendum on the then European Community stated the following in relation to a specified majority:
"The Government are concerned that the size of the poll should be adequate, and they are confident it will be so. They also consider it to be of great importance that the verdict of the poll should be clear and conclusive. In the circumstance, they believe that it will be best to follow the normal electoral practice and accept that the referendum result should rest on a simple majority—without qualifications or conditions of any kind".
Interestingly, some qualifications are made in that sentence—they are,
"that the size of the poll should be adequate"
and,
"that the verdict of the poll should be clear and conclusive".
However, the White Paper did not address the issue of how those qualifications are measured. The qualifications were made, but were left to one side.
It seems to me that the proposition that I put at Second Reading deserves a better answer today than it received then. Perhaps I may summarise it like this: I can understand—I can agree with—the argument that in a general election-type of turnout a majority of one is sufficient. That is how we operate in this country and I am perfectly happy to operate in that way although it was not to my party's favour in Scotland or in Wales at the recent general election. Nevertheless, I am content to play by the rules and do not want to shout "foul" when the rules bounce against me.
The problem occurs at the other end of the spectrum. One must look at some local election turnouts and ask whether a majority of one in a referendum which had a local election turnout would be regarded as, to quote the words of the 1975 White Paper, having a poll of "adequate" size and giving a "clear and conclusive" verdict. I doubt it.
The Swiss are into referendums in a big way. I have done a little research—in fact, the Library did it for me and I am grateful—into the turnout at some recent referendums in Switzerland. I have a list of referendums going back to 1995. Perhaps I may give the Committee the turnouts for the various referendums. They were 40.4 per cent.; 40.3 per cent.; 40.3 per cent.; 31 per cent.; 31 per cent.; 31 per cent.; three propositions were put on the one day—30.9 per cent. and 31 per cent.—again, those propositions were put on the same day and some people clearly voted in one but not in the other—and 31.4 per cent. Those do not seem to me to be very big turnouts. Indeed, they are reducing turnouts. Lest any noble Lord should think that referendum turnouts in Switzerland are always at that level, I should say that in 1989 in a referendum which proposed the abolition of the Armed Forces in Switzerland by the year 2000 the turnout was, in the words of the quote that I received, unusually high with almost 70 per cent. of the electorate turning out.
I suspect that the turnout depends on the issue that is being tested. If, as I hope, we are looking not only at the issue to be tested in September, but at those to be
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tested in the future, it is right to ask ourselves what we should do if the turnout begins to drop away to 30 per cent.
Amendment No. 83 is a new schedule in the form of a table. It links turnout to majority and answers the question that I have posed to the Committee both today and previously: would a majority of one on a wet day's turnout be sufficient for the kind of changes that are being presented not only in this referendum, but in referendums in the future? In the table in Amendment No. 83, I have attempted to mesh turnout with majority so that if a turnout is at a general election level of over 60 per cent.—I believe that I am right in saying that almost every general election (if not every general election) has had a turnout well in excess of 60 per cent.—a simple majority will do. However, as the turnout drops by two percentage points, so the number required to vote for the proposition increases by one percentage point until on a turnout of less than 30 per cent., the support of 66 per cent. of those voting would be needed.
I decided not to carry on with the table because it seemed to me to be unlikely that the turnout would drop below 30 per cent. I am happy to leave it at two-thirds. I decided not to leave it at exactly two-thirds; otherwise, it would have involved fractions. I decided that we did not need them. Some of your Lordships may say that this represents a series of cliff edges. I could easily translate this into a formula, but the last time that I had to defend a formula in legislation, albeit from the other Dispatch Box, the noble and learned Lord, Lord Simon of Glaisdale, took me to task for its complexities. The formula on that occasion was fairly complex. The formula here is very simple. If m is the vote that "Yes" requires and t is the turnout, then the formula is: m equals 80 minus half of t. That gives one this table and the gradations in each group. (I hope that I am impressing the Government by my argument, if not my mathematics.) The table illustrates the point better than the formula, which is why I have used the table. It addresses some of the points that people have put about basing the whole matter on turnout or the vote obtained by the proposition and meshes the two. Therefore, there is a huge incentive on both sides to achieve a good turnout.
I have no doubt that the accusation will be laid at my door that I want to repeat what happened in Scotland in 1979. I do want to repeat what happened in Wales in 1979 where this table would have had to be continued quite considerably for the government of the day to have achieved a majority in the Welsh referendum in a quite different way. However, in Scottish terms one does not argue as to which side encouraged the "No" vote to abstain. My firm recollection is that those who campaigned for an assembly said that if one voted "No" one did not have to turn out. However, history being rewritten in Scotland as elsewhere, as it often is, people claim that the "Noes" did that. If your Lordships study the proposition that I have put forward, if some of the "Noes" do not vote because they believe that it is the same as voting "No", that is not the case. Every "No" who abstains and therefore drops the percentage of the poll will at the same time increase the numbers voting

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"Yes" by not voting. I see that the noble Lord, Lord Desai. nods in agreement. Therefore, the usual accusation that is made about thresholds in Scotland does not hold water.
I shall not bore your Lordships with some simple examples of what happens. However, to take the result last time, if even more of the "Noes" abstain than abstained last time the position will become even more favourable to the "Yeses", on the assumption that all of them vote. If the "Yeses" also abstain the proposition is in some difficulty, but on the assumption that all of the "Yeses" vote this proposition will ensure that neither side can influence the result by not voting. I accept that it is complicated and that this country tends to like simple electoral rules. However, I believe that if we are to have a number of referendums we should address this particular problem.
I do not pretend for a minute that my solution is the only one. I am sure that there are others. Certainly, one could vary the arithmetic of the timetable. One could go above 60 per cent. before one started the 50 per cent. majority. I have not done that. Before any noble Lord jumps up and makes a mistake about it, anyone who has done the arithmetic will realise that last time the "Yeses" would have won. Some of my noble friends believe that I have not done my arithmetic correctly. That is not the case. I am attempting to answer what I believe to be a legitimate, almost philosophical, point about referendums. The Government may say that if there is a referendum in which the turnout is badly down the result is only advisory and Parliament will be able to ignore it. Once we go down the road of referendums it will be extremely difficult for Parliament to ignore the outcome.
As I believe I said on one of the previous days in Committee, noble Lords who have ever stood for parliamentary seats—and won them occasionally—will know that often the electorate feels that Members of Parliament ignore its views on certain key emotional issues. I believe that if a majority even of a minority of the electorate vote for a proposition and Parliament decides to ignore it because there has been a low turnout that will be very bad for the trust between the people and Parliament. I believe that something along the lines of what I propose for all referendums, not particular ones, means that everyone will know the rules of the game. They will know against what the result will be measured. I believe that that is a sensible way in which to proceed if there are to be lots of referendums.
I hope I will not be told that I am being disruptive of the referendum that is about to take place. I am not attempting to do so. I hope that we can have a debate in which the general proposition about majorities in referendums is addressed and that we do not hark back to the 1979 rule. It is because of the 1979 rule and the undoubted difficulty that it created that I have devised this system to get round it. In my view, if some of the "Noes" had not stayed at home the majority would have voted against the proposition in 1979 and we might not today be discussing this issue. That is just my view and no doubt other noble Lords, especially those opposite and some beside me, may have a different view. However, I believe that if we are to go down the road
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of referendums we must address the problem of turnout against majority. I commend my humble effort for dealing with this problem to the Committee. I beg to move.
5.30 p.m.
Lord Steel of Aikwood: I seek to oppose the amendment moved by the noble Lord, Lord Mackay, because, unlike those that he moved earlier this afternoon, this has the capacity to cause real mischief in the referendum process. I believe that his earlier amendments were relatively benign.
I should like to apologise to your Lordships' House for the fact that, although I spoke at Second Reading on the Bill, I have been unable to attend any of the Committee stage up until today. I am still fulfilling diary commitments entered into before I was appointed to your Lordships' House. I should like to assure the noble Lord, Lord Mackay, that I will think fondly of him during Report stage when he will no doubt make more amendments and I shall be in South Africa. In the meantime, while I am here I feel that this amendment is one that should be resisted.
I listened with fascination to the tail end of his speech about the difference between his sliding quota and the fixed quota last time—I take the arithmetical point that he makes, which had not occurred to me until he made it. However, any quota system is an interference with the principle of the simple majority and is open to confusion. Despite his warning, I shall hark back to what happened in 1979. In my view, the introduction of the 40 per cent. quota during the passage of the legislation left Scotland in the most profoundly unsatisfactory state of all; namely, a majority in favour of the proposition but a failure to meet the qualifying quota. That left a sense of real bitterness and frustration which one does not want to see repeated in any form on a future occasion.
There are serious objections to any form of percentage quota. I draw your Lordships' attention to the fact that the referendum is likely to take place in September, even though there is not so far an accurate date. Of course, the electoral roll is made up in October each year and comes into effect in February. Therefore, one is talking of conducting a referendum on a roll which will be almost a year old. It means that the quota will include people who are deceased as well as those who decide to exercise their right not to vote. Unless it becomes Conservative Party policy to make the vote compulsory, I do not believe that it is possible to have any kind of quota system.
One should look at the recommendations of the commission which the noble Lord, Lord Mackay of Ardbrecknish, prayed in aid. During Second Reading the noble Lord quoted the section of the report which said that the use of thresholds was a political decision. However, the commission went on to say that if a threshold was used it should be a set percentage of the votes cast and not a percentage of the eligible electorate. If thresholds were set a clear explanation of the meaning of the thresholds should be included.

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I challenge the noble Lord to suggest how we are to give a clear explanation of that sliding formula which he has invented for the purpose of this afternoon's debate. He took us on a world tour. We went to Italy, Australia, New Zealand, and Switzerland. We failed to visit Patagonia or Outer Mongolia, but nowhere have we found the sliding formula. It is an Ardbrecknish invention. It will not work. It might work in Ardbrecknish, but nowhere else. Ingenious though the noble Lord has been, it is open to severe difficulties.
I shall make use of the useful statistics supplied by the Library. If one looks, for example, at the local government elections in Westminster—the Conservative Party flagship—of May 1994, one sees that the turnout was 46.1 per cent. of the electorate. If one then goes down the table of the Mackay sliding scale, one finds that the percentage required to support the proposition, according to his scale, is 57 per cent., whereas the percentage of the electorate which supported the Conservative administration was only 24.1 per cent. Are we going to suggest that all of its actions were illegitimate? In the case of Westminster, some of them of course were. Are we to suggest that the entire thing was void from the beginning? According to the Mackay scale, it would have been.
Let me take another Conservative Party flagship. In 1993, Buckinghamshire County Council was the only county council controlled by the Conservative Party. The turnout in the election there was 34.6 per cent. Scanning the Mackay sliding scale, I find that 63 per cent. of the electorate would have been required to support the proposition. In fact the percentage of the total which supported the Conservative Party was only 14 per cent. Is it going to be ruled out? I know that the noble Lord will tell me that he is not talking about local elections but about the referendum. Therefore I can save him an intervention. But the principle is the same.
Once we depart from a simple majority, we run into real trouble. If one takes the 40 per cent. rule from 1979, one of the irritations we had in Scotland was that the Conservative government in the general elections of 1979, 1983 and 1987 failed to get anywhere near the 40 per cent. of the electorate voting for them. It was 33 per cent., 30 per cent., and 31 per cent. Will the noble Lord see the noble Baroness, Lady Thatcher, to tell her that none of her administrations was legitimate because of that? If he is, I should like him to tell me the date so that I can sell tickets for the encounter.
This is a nonsensical proposition. The noble Lord has been ingenious; he is always ingenious. However, yesterday Mr. Arthur Bell, in an article in Scotland on Sunday where he is described as chairman of the Scottish Tory Reform Group—a contradiction in terms if ever there was one—is reported as saying that the party was disillusioned with the failure to face up to its current position. It has no MPs, no MEPs, a handful of councillors and no councils under its control. It is in more than a sorry state; its condition is pitiful. That would be the right description of the amendment. It is as though, having lost the argument on devolution as a
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principle, the Conservative Party is now going to rely on those who are dead or those who could not care less, to see through their arguments.
Lady Saltoun of Abernethy: I have two points. The noble Lord, Lord Steel, said, quite correctly, that we shall be working on a voters' roll that is approximately a year out of date and that therefore in the interval a number of people on it will have died. Equally, he did not mention that a number of people, very possibly approximately the same number, will, during that period, have become eligible to vote who are not on it.
Lord Ewing of Kirkford: I am grateful to the noble Lady for giving way. When the electoral register is made up in October each year, anyone who becomes eligible to vote during the whole currency of that register is included on the register with the date from which they are eligible to vote appended at the side of their name.
Lady Saltoun of Abernethy: I am very much obliged to the noble Lord. I apologise for being so ill informed. Perhaps I may return to what the noble Lord, Lord Mackay, said. It is not just bad weather that stops people coming out to vote. If you are unhappy and discontented, the chances are that you will come out to vote, but if you are happy with the status quo you are generally politically lazy, and you are very much less likely to come out to vote.
5.45 p.m.
The Earl of Onslow: The figures produced by the noble Lord, Lord Steel, are interesting. Yes, 40 per cent. in Westminster voted. But the people who voted in Westminster could have chucked the brutes out, as happened on 1st May. The brutes were chucked out. What we are talking about with the referendums for Scotland and Wales is the total upheaval of the British constitution with all the dangers that that implies.
As I have said before, it seems to be something that is not allowed to concern the English much. But it does concern the English. A minority of a minority will be able to vote. Let us say we are down to a 30 per cent. turnout in Scotland. The population of Scotland is 5.5. million or thereabouts; and 30 per cent. of the electorate, which I presume is 4 million, is about 1.2 million.
Lord Mackie of Benshie: Plus or minus.
The Earl of Onslow: I suspect that it is something like 1.2 million. If only half of those people were to vote yes, and 49 per cent. no, it means that a very small number in a very small part of the UK has changed the UK constitution. That is a recipe for disaster. If this thing is going to go ahead, and we are going to have devolution, with all the effects that it will have on England, which no one seems to be addressing, at least let us have a substantial majority of the Scots who say, "We are prepared to risk the difficulties with England. We are prepared to go ahead with this arrangement". Let us do it that way.

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Let us remember when Abraham bargained with God over Sodom and Gomorrah. He said:
"Peradventure, Lord, there be 99 just men in all of Sodom and Gomorrah".
Being a good Jewish businessman he argued God right down, I think, to five. God was prepared to concede that there was another point. I wish that we would have a proper and substantial turnout and a proper and substantial amount of both the Scots and the Welsh who, if they are determined to wreck the British constitution, do it in spades and not in one club.
Lord Renton: This surely is the most important issue that we have to decide on the Bill. The idea that a mere, simple majority is good enough to make a great constitutional change which may be permanent is surely wrong. My noble friend Lord Mackay of Ardbrecknish put forward the case for the amendments in a careful and moderate way. I would go much further than the amendments. I would say that there needs to be half the electorate supporting a change of this kind. We must not overlook the cause of abstentions.
Abstentions are the result not merely of people not knowing how to make up their minds or believing that it does not matter, but often of people saying, "The only thing that matters in this vote on a referendum, which is quite different from a parliamentary election, is whether or not one is in favour of change. If one is not in favour of change what is the point of voting?".
Furthermore, in Scotland and Wales there are sometimes considerable distances to be travelled in order to vote. Many people who may have difficulty in travelling to vote might say, "I'm not going to vote because I believe that we do not want this change. I do not see the point of going to vote when it really won't matter". As was pointed out last week by my noble friend Lord Campbell of Croy, that is a relevant factor in deciding the matter.
I do not know whether a decision will be made today, but we must consider the matter very carefully. It would be tragic if the people of Scotland were thought to have approved of such a major change—of a new parliament perhaps with tax-raising powers—when only 36 per cent. approved, as happened in 1979. Thank goodness that was not accepted by the Government of the day. This is an important matter and I hope that ultimately we shall reach the right decision. I should have been prepared to table an amendment providing that no change shall be made unless 51 per cent. of the people approve.
Lord Monson: I agree with the noble Lord, Lord Renton, that this is one of the most important matters, if not the most important, that we shall discuss. I agree with it wholeheartedly in principle. It is wrong that a majority of 50.001 per cent. of a low turnout should suffice to push through constitutional change. Few would deny that devolution equals constitutional change and that, moreover, it is likely to lead sooner or later to greater constitutional change than is perhaps now envisaged.
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When constitutional change is contemplated, it is normal to require a more convincing and solid majority than 50.001 per cent. of the entire electorate, whether or not they turn out to vote. The noble Lord, Lord Mackay of Ardbrecknish, gave a number of examples. He might also have instanced the March 1950 plebiscite in Belgium over the return from exile of King Leopold III. However, nearer to home, what better example can we have than the Church of England. A majority of two-thirds in each house of the Synod is required for any major change to take place. The Committee will remember that the Anglican/Methodist unity proposals foundered in May 1972 because although 85 per cent. of the bishops were in favour, the overall majority was only 65.81 per cent. It may be that 66 per cent. is too large a majority in this instance, but certainly 50 per cent. on a low turnout is much too small.
Baroness Carnegy of Lour: As regards satisfaction with the outcome of the referendum, the straight majority that is suggested is worrying. If I may say without sounding too pompous, this is a House of Lords matter. The noble Lord, Lord Steel, laughed at the amendment with merry glee. It is complicated and the algebraic formula may not be plain to all voters. However, if the Government could stop laughing at every suggestion that a straight majority is a fancy threshold, as they have up to date, they would obtain a formula which would make the referendum satisfying to the people of Scotland and Wales. It will not he very satisfying if there is a 60 per cent. turn out and 31 per cent. of those who might vote say, "Yes", and we have a parliament, or the other way around.
The relating of the two columns is a clue to the amendment. I believe that the Government should take the issue seriously. I do not know whether we will vote on it or what the outcome will be, but whatever happens Members of the Government should take the issue seriously and should not just sit there smiling away. There was an article in today's edition of The Times warning about that. I feel strongly that on such issues the House of Lords should say to the House of Commons, "Please, think of a better way". I say to the Government and I say to the Commons, "Please, take this seriously".
Baroness Ramsay of Cartvale: I, too, take the issue seriously. Before the Bill came to this House, Members opposite made much of statements that unlike their party colleagues in another place they would not introduce amendments that were frivolous or juvenile, a word used by the noble and learned Lord, Lord Fraser of Carmyllie, who is not in his place. That was to their credit.
This amendment is certainly not juvenile. I hope that it is not juvenile because I do not understand it. I believe the noble Lord, Lord Mackay of Ardbrecknish, is overestimating the mathematical abilities of other people. They are abilities which he undoubtedly has but which I cannot match because I do not understand the amendment. It is certainly not frivolous, but I cannot help believing that it is what the French would call "not serious". I have heard many threshold proposals, but of all I have heard anywhere this is the most bizarre.

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As I said on Second Reading and during the debate on the humble Address, I am against thresholds in principle. I can see no logic in allowing people who do not participate in voting in democracies to affect the results. In democracies such as Britain where everyone can vote, where everyone has the opportunity to do so, do not see how one can possibly defend the choice not to do so as a result of apathy or whatever, which will affect the result. The British tradition of not having thresholds is correct. It is not helpfulߞ
The Earl of Onslow: I thank the noble Baroness for giving way. There is no British tradition of referendums. We are treading uncharted waters. That is the difference.
Baroness Ramsay of Cartvale: They are not that uncharted; we have been here before. There certainly is no tradition of having any thresholds except in 1979 and we all know that that was motivated by those who were opposed to devolution. If we introduce fancy franchises—with respect to the noble Baroness, Lady Carnegy, it is a fancy franchise to play around with something that is completely alien to the British tradition of elections of any kind—people will rightly suspect that those who are making suggestions are motivated in exactly the same way as were the people in the 1970s; they are trying unfairly to weight the ballot against a result which they fear.
6 p.m.
Lord Mackie of Benshie: The noble Lord, Lord Mackay of Ardbrecknish, must be talking about an entirely different situation from the one I am talking about. I am talking about a referendum in Scotland which has been talked about and voted on; and there is not a single MP of the party which opposes some form of constitutional change in Scotland. Arguments have been put forward by the noble Lord, Lord Renton. He said that people will not go a long way to vote. People in Sutherland used to go miles to vote. In the end, they came miles to vote for my opponent but they also came miles to vote for me. Distance certainly does not deter them.
Lord Renton: It is very kind of the noble Lord to give way. People may travel a long way to vote for him but they may not trouble to travel any distance at all just to vote "No" when they think that that vote can be achieved by not voting at all.
Lord Mackie of Benshie: That is why we do not believe that not voting should have an effect. That is the whole point. The views of people who vote are valid; the views of people who do not vote should not be valid.
In Scotland, there is an immense interest in this matter. There will be a decent turnout. I would bet money with anybody that that will be the case. We have two simple questions and a simple majority is what is required. We shall have a good turnout. We are voting on a simple referendum in Scotland. A simple majority
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of the people who vote for what they believe in is what we require. We do not require a formula such as has been put forward in this amendment.
If we were discussing referendums on many different issues, as there are in Switzerland, then there may need to be a formula. But any government who produce referendums in this country which have a 30 per cent. turnout would be turned out themselves shortly afterwards.
Viscount Bledisloe: We all know that you can prove anything by the misuse of figures. But I was still surprised by the noble Lord, Lord Steel, using analogies with general elections and county council elections. I should have thought that a Liberal Democrat, of all persons, would know that in such elections there are normally more than two candidates. If you take proportions when there are a lot of candidates, you obviously get a very different figure from this situation in which there are merely two questions and only two runners in each race.
Some Members of the Committee have said that they find the formula very difficult to understand. If they do, that seems to demonstrate perhaps that the Statement that we heard this afternoon about numeracy in primary schools came none too soon. For those who find it very difficult, perhaps I may point out that if 30 per cent. of the people vote, on the proposition of the noble Lord, Lord Mackay, only 20 per cent. of the electorate is needed to achieve a majority. If 60 per cent. of the electorate vote, only 30 per cent. is needed to achieve a majority. If it is really being said that the entire constitution of this country should be changed, and if it is too much to ask that between 20 per cent. and 30 per cent. of the people in Scotland should turn out and vote in favour before there is a change in the constitution, then those in favour of devolution seem to have little confidence in their case.
Lord Rees: I apologise to the noble Lord, Lord Mackay of Ardbrecknish, in particular and to the Committee for not having heard the noble Lord's opening remarks. I hope that I shall not cover ground that he will no doubt have covered more eloquently and ably than I could do.
I move to intervene in the debate because various Members of the Committee have attempted to equate this referendum with a general election. As I understand it, that is not the purpose of this referendum. I shall not weary the Committee with my views of whether a referendum is a well-established constitutional parliamentary device in this country. I do not believe it is, but let us leave that aside. There are precedents. I agree that there was a precedent 20 years ago on this very issue. On that occasion, the threshold for a referendum was introduced not by those who opposed that particular piece of legislation from the Conservative Benches; it was Mr. Cunningham from the Labour Benches who introduced the threshold. I thought that that was very proper and that it gave a certain gravity and more sense to the substance of the debates and what was proposed in the legislation itself.

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This is not a measure for a legislative referendum. What is decided in this Parliament on the referendum does not establish a Scottish parliament or a Welsh assembly. As I understand it, it has merely been invoked by this Government to give a certain legitimacy to what they propose in relation to amending our constitution. Perhaps I may say to the noble Earl, Lord Onslow, that I agree that this is an extremely important measure. If a referendum is introduced and it goes in a certain direction with no threshold, it will be a very important constitutional measure. The Minister will perhaps confirm that the Government have proposed a referendum to give legitimacy to the proposed Scottish parliament or Welsh assembly which they might not otherwise have.
We all proceed on the fiction that what has been mentioned in the election manifesto of the party which won that particular election, as the Labour Party has done perfectly properly in this case, must be treated as having the support of the electorate. We all know that that is a fiction. It may or may not be true. I do not believe that the question of devolution featured very largely in the debates up and down the country prior to 1st May, but let that pass. As I understand it, the Government are very properly saying, "To ensure that we have a proper test of public opinion, there shall be a referendum". That is the purpose of this piece of legislation.
Therefore, it cannot be equated with an election. It is not the same as an election. It is to test the views of the electorate on a particular measure which will or may be introduced because as we understand it—and we covered this ground on the first day or so of our debates—it is an advisory, and not a legislative, referendum.
The Government can say, "Right, we will have nothing to do with thresholds. It is true that when we last essayed this 20 years ago, we got the wrong answer and we shall not be troubled with thresholds on this particular occasion". It may be that, with the overwhelming predominance which the Government have in the Commons, they can eventually force it through. That may be at a certain price in terms of the time which can be devoted to all those matters, but let that be so.
But the noble Lord who speaks for the Government, with great persuasiveness and balance, must recognise that if there is not explicitly or tacitly some kind of threshold, the outcome of the referendum, if it were to be in favour of what is proposed in subsequent legislation, would not have anything like the same force or legitimacy. Therefore, the Government would not have achieved what they seek to achieve. They could not say that an overwhelming majority in the country as a whole is in support of a Scottish parliament or a Welsh assembly. We do not know exactly what may be proposed but let us hope that that will emerge before too long.
Therefore, if the noble Lord and his colleagues on the Government Front Bench are minded to sweep aside the very cogent points that have been made in favour of this particular measure, and if they proceed with a very small
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majority in favour under the referendum, then they will be exposed to the criticism that the country as a whole is not in favour of this particular measure.
Before I sit down, I shall leave one question with the Minister which I hope he will answer. Let us suppose that there is no threshold formally embodied in this legislation. Is there any kind of minimum figure that the Government have in mind if, for example, only 10 per cent. of the electorate in Scotland and Wales voted in the referendums? Further, if the majority in favour of the measure covered by the referendums was, say, 100 in each country—and that is a hypothetical figure—would the Minister then say that the Government had secured the legitimacy and the support that they require to proceed with a further measure for the introduction of a parliament in Scotland and an assembly in Wales?
Lord Thomas of Gresford: The noble Baroness, Lady Carnegy of Lour, said the issue as to whether there should be a threshold is essentially a matter for this Chamber. That reminded me of the position in the Parliament Act 1911. Unfortunately, we have no written constitution. As a result, amendments to the constitution are not passed by any known written machinery and we must look to the past for precedent.
In the January 1910 general election the Liberal manifesto said:
"The limitation of the [House of Lords'] veto is the first and most urgent step to be taken".
Then, in the December 1910 general election, the Prime Minister wrote in the Liberal manifesto:
"As lately as January in the present year, I expounded to you in detail, and you approved by a decisive majority at the poll, the present aims of Liberal policy… I ask you to repeat. with still greater emphasis, the approval which only eleven months ago you gave to the proposals of His Majesty's Government".
The Parliament Act 1911 made perhaps the most profound change to the constitutional arrangements of this country. There was no referendum. The mandate that the Liberal Government had received from the people in two succeeding general elections was put into effect. Surely it is that which provides the legitimacy to which the noble Lord, Lord Rees, referred. There is a legitimacy for the Government's proposals because they have a mandate from the people of Wales and of Scotland—and, indeed, with the greatest respect to the noble Earl, Lord Onslow, from the people of England—who voted them in to carry out such proposals.
Lord Rees: My Lords, as the noble Lord has just referred to me, can he please explain for my benefit the purpose behind the referendum or, indeed, this measure?
Lord Thomas of Gresford: Speaking from these Benches and devoted to devolution as we are, we are of the mind that the purpose of the referendum was to hold the Labour Party together in the run-up to the last election.
Noble Lords: Oh!
Lord Thomas of Gresford: Indeed, that is something which they achieved.

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However, there is a distinction between this advisory referendum and the referendums which were held in 1979 under the Wales and Scotland Acts. Members of the Committee will recall that the amendment to introduce a threshold to those pieces of legislation was introduced not as a matter of principle by the Labour Government of that day; it was forced upon them. It was put into the legislation and provided that devolution in Scotland and Wales could not happen post the legislative process unless it was confirmed by the referendums that were carried out at that time. That compromise resulted in the most unhappy situation where a majority of people in Scotland—that is, 50.6 per cent.—voted for Scottish devolution; but that amounted to only 32.6 per cent. of the entire Scottish electorate.
We must avoid such a situation occurring again, not just in Scotland but also in Wales. The two referendums have been put forward for pre-legislative consideration by the people to give legitimacy to the discussions that we are having but not, at the end of the day, in any way to take away from the Government's mandate to introduce a parliament for Wales and a parliament for Scotland.
6.15 p.m.
Lord Hughes: Many figures have been quoted in this debate. The noble Lord, Lord Mackay, pointed out that at the last referendum 64 per cent. of the people voted. As has just been pointed out, it was a very bare majority; indeed, less than 51 per cent. in favour and slightly more than 49 per cent. against. However, as the noble Lord, Lord Mackay, said, if his formula had been adopted it would have been carried at the time. However, it was not carried because Mr. Cunningham inserted the amendment and persuaded Parliament to accept it. In other words, it had to achieve 40 per cent. of the electorate, not 40 per cent. of the people voting, but 40 per cent. of the electorate. We have already heard what that meant in real figures.
Argument has been based on the possibility of a low turn-out. The noble Earl, Lord Onslow, and my noble friend sitting behind me spoke of the position if only 30 per cent. of the electorate turned out. The noble Lord, Lord Rees, went much further. He talked about the position if only 10 per cent. of the electorate voted. An organisation to campaign vigorously for a "no" vote has just been established in Scotland. It has been set up under the chairmanship of a distinguished Scottish Queen's Counsel, Mr. Findlay. Moreover, its principal organiser is the noble Lord, Lord Mackay of Ardbrecknish.
Noble Lords: Oh!
Lord Hughes: Well, that was stated in press reports. Anyway, Mr. Findlay is definitely genuine. If a vigorous campaign is to be carried out, is anyone seriously—
Lord Mackay of Ardbrecknish: If Mr. Findlay were to offer me season tickets to Ibrox, I might reconsider
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my position. However, I believe that it is my noble and learned friend Lord Fraser of Carmyllie who is taking an active part in that process.
Lord Hughes: I stand corrected. However, the fact is that a distinguished Member of the Opposition Front Bench is taking an active part in working for the "no" campaign. As I was about to say, do they or anyone else taking part in that campaign believe for one moment that a 30 per cent. or a 10 per cent. turnout is a possibility? I would suggest that it is much more likely to be between 60 per cent. and 70 per cent. The last one fell as stated because 40 per cent. of the electorate was required.
The noble Lord, Lord Renton, wants to go yet further. He referred to 50 per cent. of the electorate. In a 70 per cent. poll, 70 per cent. of the people voting would have to be in favour. Under no circumstances would that figure have ever been accomplished in the table put forward by the noble Lord, Lord Mackay of Ardbrecknish. I come back to what we all hope will take place; namely, that the campaign of those we are voting "yes" and the campaign of those voting "no" will result in a big turnout. It is almost certain that there will be a substantial majority of that 70 per cent. But that is guesswork at this stage. Nevertheless, that is likely to be the position. On that basis a simple majority is the obvious solution.
Lord Beloff: The noble Lord, Lord Thomas, surprised me once again by the depth and inconsequence of his historical allusions. He referred to the fact that the Liberal Government claimed a mandate as the result of winning two successive general elections on their pledge for House of Lords' reform. I believe that many noble Lords would be perfectly content if the Government said, "We are going to the country again. There will be another general election and, after that, we will feel that we have a mandate". They seem disinclined to follow the noble Lord's advice. But I have a much simpler suggestion. I always like to come to the rescue of Her Majesty's Ministers. My suggestion is based on the practice of a number of countries recognised as democratic in their institutions; namely, that for this purpose there should be compulsory voting in both Scotland and Wales. Compulsory voting exists in Australia, Belgium and other countries. We would not need to talk about thresholds if there was compulsory voting. If there were fines for non-voters—as I believe is the case in countries which have compulsory voting—I dare say the problem of distance would be overcome. There would be no need to talk about thresholds and we could see what the result was.
Lord Hooson: Does the noble Lord agree that in this country we have never had compulsory voting for the

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simple reason that we do not allow those who could not care less and do not vote to determine the result of our elections?
Lord Beloff: I do not know why we have never had compulsory voting; all I say is that countries which are recognised as democratic, including our cousins in Australia, have had it for a long time.
Lord Sewel: Finally we have it. Ever since Second Reading we have been waiting expectantly for the noble Lord's sliding scale—Mackay's tartan threshold. The former principal teacher of mathematics at Oban High School, the noble Lord, Lord Mackay of Ardbrecknish, has laboured long and hard to produce his sliding scale. At the end of the day, however, his report must state, "Could have done better, could have done a lot better— perhaps should not have tried at all".
Now that we have seen it in all its full glory—even its algebraic formula—we are more convinced than ever that rigged ballots and fancy franchises are not acceptable. Indeed, they do not get much fancier than this one. However, the whole idea of a threshold misses the basic point. The referendums we shall be holding will seek the electorate's views on the Government's proposals. We have made clear from the beginning that the referendums will be advisory and are intended to establish the level of support for our proposed settlement. We are committed to abiding by the views of the people of Scotland and Wales. Parliament, of course, will be free to take its own view on the significance of the referendum results.
At Second Reading and throughout much of our deliberations in Committee, the noble Lord, Lord Mackay of Ardbrecknish, has quoted approvingly and at length from the Commission on the Conduct of Referendums. However, as regards the matter we are discussing he has quoted somewhat selectively. Paragraph 94 of the report states,
"A simple majority of those who cast their votes carries a natural authority".
Paragraph 100 refers to exactly the situation that we advocate and propose. It states.
"If referendums are to be advisory—
which this one will be—
"the issue of thresholds becomes in itself less significant. For example, pre-legislative referendums based on, say, proposals in a White Paper—
and there will be White Papers—
"would provide a measure of public support for a proposed piece of legislation. The legislation would still have to go before Parliament. Parliament would certainly take the referendums result and the margin of support into account, but will have the last word on whether and in what form the legislation is passed".
That is the considered view of the Commission on the Conduct of Referendums. The tone is slightly different from that which the noble Lord, Lord Mackay of Ardbrecknish, asks us to adopt.
The manifesto on which the Government were elected made it clear that the only threshold in the referendums would be the requirement for a simple majority to vote in favour of our proposals. We shall have nothing to do
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with rigged ballots. Any threshold other than a simple majority vote would be arbitrary and unfair on the people of Scotland and Wales. Its only purpose would be to frustrate the expressed democratic will of the people. The notion of a sliding scale, as supported by some noble Lords, whatever spurious rigour it may seem to have, is really no different. Instead of setting one arbitrary threshold, the proposal of the noble Lord, Lord Mackay of Ardbrecknish, sets 17 arbitrary thresholds. If he is concerned about a small majority on a small turnout, I have one clear word of advice for him; namely, he should go out, campaign and convince the people to vote no. That is the clear, obvious answer. If there is a danger of a small turnout and a small majority in favour, surely the noble Lord, Lord Mackay, and his friends should have confidence in their own case, namely; that they can persuade a big majority to say no. That is what the democratic process is all about.
We have had discussions today about high principles and about mathematics and statistics. As regards those who have spoken in favour of thresholds and those who have expressed opposition to the concept of devolution, there is a high R2 value; in other words, there is a remarkably high correlation between those who want a threshold and those who are opposed to devolution.
Lord Simon of Glaisdale: Does the noble Lord accept that the converse is true also?
Lord Sewel: The only thing I have said is that there is a high correlation between those who want to introduce the totally anti-democratic principle of a threshold and those who oppose the idea of devolution itself. The noble Lord has been trying to blind us with science. I refer to a sliding—
Lord Campbell of Croy: Can the noble Lord explain why the Labour government in 1978 accepted, upon the recommendation of a Labour Member of Parliament, the 40 per cent. threshold that went into the Bill?
Lord Sewel: On this occasion I am incredibly grateful to the noble Lord, Lord Campbell of Croy, for indicating that at that time the Labour government were totally opposed to it. It may have been put into the Bill but not with the enthusiastic support of the government of the day. We want simply to hear the views of the people of Scotland and Wales. A simple majority vote will send a clear enough message to us and to Parliament.
I refer to a few more figures. Let us assume, for example, using the formula of the noble Lord, Lord Mackay of Ardbrecknish, that with an electorate of 1 million there is a 60 per cent, turnout; that is, 600,000 votes. The vote required is 51 per cent.; that is, 306,000. However, the turnout was not 600,000 but 600,001. The vote required was 300,001. What happens if there is a turnout of 600,000 and the vote in favour is 305,999? There would be a great feeling of being cheated because if one more person had taken part the measure could have been approved and would have passed the so-called threshold. To act on such a figure would be regarded not only as cheating the people of

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Scotland but as a cheap way of dealing with the people of Scotland. It would in itself contain a recipe for instability which would mean that the people of Scotland would return to this issue, I suspect with some degree of bitterness. It is important to avoid that. They would feel that they had been denied.
6.30 p.m.
The Earl of Onslow: Is the noble Lord stating that on 3,001 as opposed to 2,999—on two votes—he would accept the ruination of the constitution of the United Kingdom? I find that hard to stomach.
Lord Sewel: They were not my figures; I was using the figures in the formula produced by the noble Lord, Lord Mackay of Ardbrecknish. The nonsense is the nonsense created by the noble Lord and not of my making.
The threshold, as we have demonstrated, is one of the most dangerous introductions into the democratic process that has been engineered. We should not allow a repeat of the 1979 situation when those who sat at home and did not vote had a significant influence on the outcome of that referendum. Quite simply, we will not have a backside referendum. It is surely right that those whose views should count are those who express their views through the time-honoured process, and that those views should not be modified by those whose interest is so little that they stay away from the poll.
I cannot understand the logic of allowing those who are either too apathetic to vote or who abstain for other reasons to affect the decision taken in any ballot. The referendum should not be about people sitting on their backsides but about people exercising their democratic entitlement. If the people of Scotland and Wales want to vote for our proposals, they will go to the ballot boxes and do so. If they want to vote against our proposals, they will do that. We should not allow the non-votes of the uninterested or even the deceased to count automatically against the requirement. The views of the people of Scotland will be clear without a threshold.
There is one other important argument. The noble Lord, Lord Mackay of Ardbrecknish, has been utterly scrupulous in his contribution at Second Reading and in the points that he has made during Committee in recognising that the Government have the endorsement of their manifesto. He has not sought to oppose the principle of the Bill. In that context, it is important to read what the manifesto says on this issue:
"A simple majority of those voting in each referendum will be the majority required".
I weigh my words very carefully in this Chamber but Members should reflect upon the point that the question of threshold and majority was put to the people in the general election and overwhelming endorsed in the
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United Kingdom as a whole and in Scotland specifically. I hope that the noble Lord will therefore withdraw his amendment.
Baroness Carnegy of Lour: Before the noble Lord sits down, can he remind me whether the Labour Party said in its manifesto that it would be an advisory referendum?
Lord Sewel: It says:
"Popular endorsement will strengthen the legitimacy of our proposals and speed their passage through Parliament".
We have never claimed other than that this is an advisory referendum. That is why it is a pre-legislative referendum.
Lord Mackay of Ardbrecknish: I am grateful to all noble Lords who have taken part in this interesting debate. I must say that the best argument of the noble Lord, Lord Sewel—indeed, perhaps almost his only argument—was his last one. I was well aware of the sentence in the Labour Party manifesto to the effect that a simple majority of those voting in each referendum would be the majority required. That is his best argument; I do not think his other arguments were very good.
I was a little disappointed that Members could not get away from this referendum to the point of principle which I was trying to establish about all referendums. That particularly applies to the speech of the noble Lord, Lord Sewel. I shall check his complicated arithmetic over the 600,000 voting and the suggestion that, if one or two do not vote because they are "no" voters, that could mean on this table that the majority might fall. I think he is probably right because of the steps; but I offered him as an alternative to that a formula which gets around that problem. If that is his only objection—in addition to the manifesto—I can easily get round that with an amendment about the formula.
I appreciate the comments that he made about the Commission's report. It highlighted the point about thresholds being difficult to ascertain, and I quoted the beginning of the chapter on that matter. I still find difficult to understand that, if the Government are saying that the referendums are to establish the level of support in Scotland and Wales, they do not seem to be able to answer the question what an inadequate level of support would be. Is it conceivable that there will be an inadequate level of support based not on the fact that the "yes" proposition obtained a majority but that the majority was very low? The noble Lord did not address that point; he homed in on the hope that the referendum in Scotland and Wales would have a high turnout and he assumed that they would have no trouble. If he is right about that, he could happily accept my amendment because above a 60 per cent. turnout a simple majority works. I begin to think that Members on the Benches opposite may be protesting a bit too much and perhaps they are not nearly as confident as I read in the press they are about the result. We shall see what happens.
I am trying to get behind the matter. What happens if we have a number of referendums as the years roll on and the vote begins to go down to the kind of level

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I read out earlier in the Committee, the kind of turnout that they have in Switzerland? Are we happy about that? I return to the point which was surprisingly not addressed by any Member who spoke. Even if the referendum is advisory, imagine the situation where a majority on a low turnout assent to the proposition and then Parliament says, "No, we are not going to bother with that because we do not think enough of you turned out to vote". I think that that would be unstable. I commend to the Government the proposition that before we move on to the next referendum, and the next one and the next one, they should give some serious thought to this issue.
Although I believe that what my noble friend Lord Beloff said about having compulsory voting gets round the problem, I am not entirely sure that that is part of our tradition. But neither am I entirely sure that referendums are part of our tradition. One national referendum in 1975 to get the then Labour Government out of deep trouble and divisions on the European Community does not seem to me to be a great British tradition. The argument that thresholds are not a great British tradition can be added to by saying that neither are referendums. But, if we are going into referendums, then we are in a new game and I suggest that we ought to look at some new rules.
The noble Lord, Lord Thomas of Gresford, went back to 1910 and 1911. I suppose that was one better than the only Liberal Democrat amendment we had, which took us back to the pre-1707 Parliament. I was grateful for the fact that, with perhaps the exception of one or two comments from the noble Earl, Lord Russell, he said about the first mildly critical thing I have heard from his Benches about the Labour Party. That, I suppose, is a step forward and I look forward to his saying some more.
Perhaps I may say to the noble Lord, Lord Mackie, and to others that my "fancy" formula does take care of people saying that not voting is the same as "no" voting. That is why I formulated it in this way. Nobody has argued against that, and I was grateful to the noble Viscount, Lord Bledisloe, for underlining the point that I was not imposing huge thresholds on a popular opinion if that were a proposition in a future referendum.
Lord Desai: I did not want to speak because I thought I would only add to the confusion by mentioning formulae. Would the noble Lord not agree that his formula—and I am talking about the mathematical formula, not the threshold numbers—still gives a weight of one-half to everyone who abstains? So it is not true. If you put T=100-a, where a=abstentions, he will get a result which leads to 30+½a and ½a means that everybody who abstains has a weight of a half. So it is not true that he has taken care of the problem.
Lord Mackay of Ardbrecknish: I knew that it was a mistake to give way to the noble Lord, Lord Desai. He is not for nothing one of the leading economics professors in the country. We have debated on a number of occasions. I think I should invite his noble friend the Minister to write to him.
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I was interested in the very first contribution, which was from the noble Lord, Lord Steel, who said that quota systems were an interference in democracy. I found that somewhat hard coming from a party that favours, I understand, the single transferable vote, which involves quota systems. There is nothing too alien in quota systems so far as concerns the Liberal Democrats. But in fact I thought his arguments were very poor. I was not addressing parliamentary or local government elections, as one of my noble friends pointed out. In those circumstances, there is a multiplicity of perhaps three or four parties. If the electorate does not like what the party does in government, it can turf that government out next time.
Referendums lead to decisions which inevitably will be much more stable and likely to last and not be susceptible to the will of the electorate at the next turnout on a general election. So I do not think that he has a very fair point. I was not in the least impressed with that part of the noble Lord's argument, any more, frankly, than I was impressed with his argument earlier when he was discussing the abolition of the Scottish Parliament of 1707 and the resentment caused by it and when he prayed in aid the '15 and the '45 rebellions. There were many more issues involved then, if my memory serves me rightly. Being a Mackay, my memory does in these matters, serve me rightly, as we and the Campbells, whose crest I see around your Lordships' House quite commonly, were on the right side of that dispute. I believe that there were more Scots fighting on the Hanoverian side at Culloden than were fighting on the Jacobite side. So one has to be somewhat cautious in drawing lessons from history.
I am sorry that the Government do not consider this a matter that they have to take seriously into account if we are to go into a new situation in our politics, where referendums will be—not two-a-penny; I do not suppose they will be that—not so infrequent. At least we are seeing something like five or six maybe in this Parliament already. I believe that, if we do not lay down now the kind of ground rules that I am suggesting to the Committee, we shall inevitably have to do it one day in the future. Otherwise, we shall end up with the situation in which a government decide that they will not accept the majority in a referendum because there has not been a big enough turnout. I believe that that would cause very considerable tension between the electorate and the Government and between the people outside Parliament and the Members of Parliament, including the Members of this Chamber.
But, as I said, I have read the Labour Party's manifesto. I have been invited to read it so many times that I could not avoid reading it. I have made it perfectly clear in everything that I have said in the Committee on this Bill, that I have no intention of breaking the convention about manifesto commitments. I regret to say that it is the best argument that the Government can put forward and it is rather sad, given the importance of referendums, this one and others to come.
In the light of the very clear undertaking that the Government gave in their manifesto and in view of their majority, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.45 p.m.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 51:
After Clause 3, insert the following new clause—
PUBLICLY-FUNDED INFORMATION
(" .—(1) Every household in Scotland and Wales shall receive a publicly funded leaflet giving general information on the holding of the referendums, and statements of the "Yes" and "No" cases relating to the referendum question.
(2) The Independent Statutory Commission shall have a duty to facilitate, on an equitable basis, the preparation, publication and distribution of campaign material provided by umbrella campaign organisations; and if no umbrella organisations exist, the Independent Statutory Commission shall produce the leaflets after appropriate consultation.").
The noble Lord said: This amendment stands in my name and the name of the noble Lord, Lord Crickhowell, who cannot, unfortunately, be present. The important point about this new clause is that it suggests that:
"Every household in Scotland and Wales shall receive a publicly funded leaflet giving general information on the holding of the referendums, and statement of the 'Yes' and 'No' cases relating to the referendum question".
I apologise to the Committee in that I should have set down an amendment suggesting that the "yes" voters and the "no" voters should have the availability of the Freepost, as in a general election, under Section 91 of the 1983 Representation of the People Act. That has not been translated forward into the draft regulations.
I want to explore with the Government whether they believe that some provision should be made for every elector to receive in their hands a proper discussion of the issues, pro and con. The amendment simply asks for a general leaflet indicating what the referendum is about. I am relaxed about how that is done. Perhaps on one side of the paper is put the case for the yes vote and on the other side the case for the no vote. It will be a piece of paper that everyone receives, publicly funded. The public will then be able to judge on a précis of the White Paper the case for and the case against it and what they should do.
The importance of the Freepost was underlined to me this afternoon when I heard from the Benches opposite the noble Lord, Lord Monkswell, suggest to his noble friend Lady Blackstone that having consultations including during the month of August was quite wrong. He hoped that there would be enough time for consultation on the Government's White Paper on education to allow proper responses and that August was not good enough. I thought I had heard myself using that argument a little earlier and making no headway with the Benches opposite. I was rather surprised, therefore, that the noble Baroness agreed with her noble friend and said that there would be plenty of time other than August. Of course, we know that there will not be plenty of time other than August for this particular issue. We shall be addressing it during August, leading to a referendum on, let us say—just because we cannot find out the date—4th September.
Because it is in August and because it is an important question—we all agree on that; people who are in favour of this constitutional change believe it is very important,
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as do people who are against it—I believe that there is a big argument for each member of the public in Scotland and in Wales to receive a piece of paper at public expense which clearly states the pros and the cons of the issues that they are being invited to address. That means that in Wales there would be a leaflet explaining it in favour of the Government's proposition in the White Paper and comments in the same leaflet giving the opposite point of view. In Scotland there would have to be a slightly more complicated discussion, explaining the pros and cons of the first question and then explaining the pros and cons of the second question. As an aside, I might be slightly amused to see the Government's argument in favour of the pros for the second question, considering that they have gone to all the trouble of a referendum on the second question. But that is another matter.
This is a matter which I take very seriously. I believe that it is right and proper that people should be properly informed. All along the line, the Government have said that. Therefore, I believe in having some form of publicly-funded leaflet. It would be better if an independent statutory commission were there to hold the ring in such matters; but in our democratic society, where the usual channels can work rather well, an agreement can easily be reached between the pros and the antis as to the contents of each side of the leaflet, if that is the way it is to go. The public can thus be properly informed and we can have the kind of turnout that noble Lords opposite are so keen to have in order to establish the settled will of the Scottish people.
This is an important amendment. At risk of the noble Lord, Lord Sewel, finding another court, I just quote again the Commission on the Conduct of Referendums. In guideline 12, it says:
"Every household should receive a publicly funded leaflet giving general information on the holding of the referendum and statements of the 'Yes' and 'No' cases relating to the referendum question".
I believe that it is a pretty convincing argument in that case. The eminent people who sat on that committee thought that we should have something of that nature for referendums in general. I believe that it is important for referendums in general and for this one in particular. But, if the Minister wants to tell me that there will be Freepost available to both the "yes" voters and the "no" voters, it would put my amendment in a slightly different light and I would look at it from a slightly different point of view. But if that is not forthcoming, the Government ought to accept this amendment. If it is not properly drafted, and I fully accept it may not be, in the second part of the proposed new clause, as I know from long experience it is a very simple thing for the Government to put right. I beg to move.
Lord Williams of Mostyn: As the noble Lord, Lord Mackay, pointed out, this is a question of principle and a question of mechanics. The noble Lord virtually conceded that the second part of his amendment is defective. How does one define an umbrella campaign organisation? There are difficulties, but there is no purpose in my spending time on the deficiencies of the second part of the amendment because he concedes those. Finding more holes in the amendments on a drafting basis is not fruitful at this time of the evening.

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The real question is the question of principle which the noble Lord identified; that is, that the public should be properly informed. The media will have their part to play along with political parties, political figures and everyone who has an interest. That is one of the reasons we felt it was important in Wales that there should be a period of decent, calm reflection of two weeks or so, so that the public are fully informed on the specifically Welsh complexion and aspects of the situation.
There is a good case for ensuring that those who will vote in the referendums are well informed about the proposals on which they are being asked to vote. Therefore other persons and bodies have their part to play. I take the thrust of what the noble Lord, Lord Mackay, said; it is something with which I agree. And I can tell him that we are currently considering how best to achieve that. I do not believe that one needs yet another layer of bureaucracy with an independent commission. The umbrella organisation's description, even as a floated proposition, is not likely to work.
I take up the offer of the noble Lord, Lord Mackay, when he says that he is perfectly happy to put his proposals forward in a little more detail. All I can say, with the usual caveat now tattooed upon my head, is that there are no guarantees. I am perfectly happy to see whether or not we can come to a conclusion which is satisfactory to him. If not, we shall have to make up our own minds. But I stress again to the Committee that we believe in the validity and virtue of the case that those who are to vote ought to be well informed. On that basis, which I hope he finds helpful—I have not overlooked the second part; I have simply not dealt with it because nitpicking has diminishing returns—I ask him to respond in the way that I approached his point.
Lord Sempill: Perhaps I may quickly intervene. What I find interesting about the amendment of the noble Lord, Lord Mackay, is that one issue of which we are well aware, especially in Scotland and I am certain that it applies to other parts of the United Kingdom, is that there is substantial apathy among our youth towards voting—it was shown in the last election—and in their general attitude towards politics as a subject. It is important therefore that due consideration is given to the proposal and that the tone of the leaflet inspires young people. After all, they are voting on an issue which will affect their future much more than ours. They must be clearly made aware that the destiny of the way they want the constitution of this country to be taken forward sits in their hands. If the money can be found for some form of publicly-funded leaflet, clarifying exactly what is the status they are considering, it should be funded and the leaflet subsequently circulated.
Lord Steel of Aikwood: Perhaps I may briefly support the thrust of the agreement between the two Front Benches on this issue and make one suggestion. It is important that the Government, in coming to their final conclusions on this issue, look at the experience of both the 1975 and 1979 referendums. There were differences.
My recollection is that in the 1975 European referendum a printed leaflet of the kind described in the amendment of the noble Lord. Lord Mackay, was
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available for the "Yes" campaign and the "No" campaign. The difference between the two referendums, as I recall, was that in 1975 there were properly established and recognised umbrella bodies on both sides who gave approval to the statements that were issued. That was not the case in the Scottish referendum. It will pay to look at what happened in the previous referendums in coming to what I believe both Front Benches agree should be done on this occasion; namely, that every voter should receive the case for each side of the argument free of charge.
Lord Williams of Mostyn: I do not want to mislead the noble Lord, Lord Steel. I did not say that. I know that the noble Lord, Lord Mackay of Ardbrecknish, would not have taken my remarks in that way. I said that we are currently considering how best to achieve public information and that I shall be grateful—I am sorry for any discourtesy—to all sources who wish to put forward their views. However, I stress that I have done nothing more than that.
Lord Steel of Aikwood: I understand that. I hope that I was not putting words into the Minister's mouth. I am urging him to look at the experience of the 1975 referendum, which I felt was the best procedure and better than that adopted in 1979. If he does that, he will end up doing that which the noble Lord, Lord Mackay, is pressing him to do.
Lord Williams of Mostyn: Again, I am grateful to the noble Lord for his courtesy and clarity. We of course will take that advice on board.
The Earl of Lauderdale: The noble Lord, Lord Sempill, referred to the atmosphere among young voters. The noble Lord, Lord Williams, said that the public must be properly informed. Perhaps I may remind the Committee that we in this Chamber are here because we take a great interest in politics. On the whole the public outside do not do so and the last general election was overshadowed by a year of media coverage of events which had not yet happened. Of course, the public were bored stiff.
I remind the Committee that it is easy to get bored with politics and perhaps I may give by example a personal reminiscence. When I used to stand for the other place and go night after night to three or four villages and address an almost empty school hall with around three people in the audience, it was often said to my wife, "Why do you not sit on the platform with your husband?" Her answer was, "I do not want him to see me wince".
Lord Mackay of Ardbrecknish: I am not entirely sure what I am being offered. I was grateful to the noble Lord, Lord Steel, for his support and in fact for his questioning which brought the noble Lord, Lord Williams of Mostyn, to the Dispatch Box again. I then took a note of what he said. He said, "Public consider"; something about "public information".
Going back to a debate we had earlier, I can see that someone may construe the "public information" as being information about the Government's White Paper;

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in other words, information entirely in relation to the "Yes" case, the Government's case in Scotland and Wales. To be honest, that would go no way towards satisfying the amendment which I tabled. I must therefore look carefully at the matter, unless the noble Lord, Lord Williams, wants to intervene and assure me that any public information that was distributed would not be information only on behalf of the "Yes" campaign and nothing on behalf of the "No" campaign. That would contravene the assurances I received in a debate earlier this afternoon from the noble and learned Lord the Lord Advocate. I do not know whether the noble Lord, Lord Williams of Mostyn, can help me in that regard.
Lord Williams of Mostyn: I do not believe I can help the noble Lord. I want simply to be as clear as possible so that no one is misled. What I have said, and I have said it twice but I repeat it, is that we are currently considering how best to achieve that; that is, that those who are to vote or to consider voting in the referendums are well informed. I said that any sensible proposal, from whatever source, will be part of that consideration. However, I stress that I am doing nothing further than that.
Lord Mackay of Ardbrecknish: I am grateful for that clarification as far as it went. Perhaps I can make it clear to the noble Lord that I would certainly recommend that my noble friends vote against any proposition brought at Report or Third Reading which envisaged an information campaign which gave only one side of the argument. I would certainly recommend that my noble friends voted against that. I hope that the Cross-Bench Peers may see the force of that argument and even, in this case, the Liberal Democrats also.
I hope that that is not what the Government have in mind. They ought to give consideration to this proposal in relation to public information. I am grateful to the noble Lord, Lord Williams, as far as it goes. I shall take refuge in the usual phrase that I shall read carefully what he said—and I certainly shall have to read it carefully. I shall also probably have to write to the noble Lord about it. However, I hope that whatever the Government are considering on this issue, they will be in a position to respond at Report stage when, if they do not table an amendment to allow us to discuss the issue again— either an amendment which they mean to put into practice or just one to allow us to debate it and allow them to say what conclusion they have reached—I shall certainly table an amendment, perhaps better worded than this one, in order to bring the issue to your Lordships' attention. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7 p.m.
On Question, Whether Clause 4 shall stand part of the Bill?
Lord Mackay of Drumadoon: I seek to oppose the Question that Clause 4 should stand part of the Bill. The
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clause seeks to prevent any court entertaining any form of legal proceedings questioning either the number of ballot papers counted or votes cast as certified after a referendum by a chief counting officer or one of the counting officers.
This matter was dealt with at Second Reading by the noble Lord, Lord Sewel. He explained (at col. 1115 of the Official Report) that the purpose of the clause was to provide a safeguard against the opponents of devolution trying to delay implementation of the Government's proposals following a "Yes/yes" vote by calling into question the mandate provided by the referendum through spurious, but lengthy, litigation. He explained to the House that the clause had precedent in the legislation dealing with both the 1975 referendum and the 1979 referendums.
I shall deal, first, with the issue of precedent. I am aware of the statutory provisions that lie behind what the noble Lord, Lord Sewel, said at Second Reading. However, the situation is different as far as concerns those previous referendums. The question that arose in the 1975 referendum was whether the United Kingdom should remain a member of the European Economic Community. The Government would have been required to withdraw the United Kingdom from the Community had the vote gone against them on that occasion. The 1979 referendums were to deal with bringing into force two Acts of Parliament that had already been passed. The provisions of those Acts required that before any orders bringing individual sections into force were implemented the necessary votes had to be achieved in the Scottish and Welsh referendums.
The situation is different here because, as noble Lords on the Front Bench have stressed on more than one occasion, the referendums are to be of an advisory nature and there will be nothing to prevent the Government presenting a Bill or two Bills to Parliament, assuming they receive votes in support at the referendums, even if some form of legal proceedings were forthcoming. The existence of legal proceedings would not require the Bills to be delayed or indeed any part of the parliamentary process to be delayed.
Those noble Lords who have considered the terms of the draft orders for the holding of the referendums which are now to be incorporated into the Bill in the light of the concession made on an earlier Committee day will appreciate that only certain of the provisions are to be included. Some are not. Perhaps I may take, as an example, the position as to the counting of votes. The draft orders provide that rule 44 dealing with the attendance of people at the counting of votes will allow observers to be present. But they will be in a different position from the candidates, the election agents and the counting agents who attend at the count of a parliamentary or local election in that they will have a right only to observe. They will have no right to challenge what is going on in the sense of objecting to the rejection of a spoilt ballot paper and, in particular, will have no right to seek a recount. As there have been amendments dealing with the declaration of specific results for specific areas and constituencies, the need for

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a recount may arise. It is just as likely to do so in a referendum as it is in a parliamentary election if those provisions are given effect to.
What the orders do not do is to incorporate into the procedures for running the referendums—one assumes therefore that it is the Government's proposal that they should not come into a new schedule—the proceedings which allow election petitions to be presented to the court seeking to challenge the manner in which a count has been conducted and, in particular, seeking to challenge the rejection of individual ballot papers. In addition, there is a possibility that people will seek to vote in the referendums, having got their names registered on the electoral roll, when they were not entitled to do so. There is the possibility that they may be subjected to some form of illegal pressure, whether financial or otherwise, to vote or not to vote; and, if they are to vote, to vote in a particular way. That is why Sections 113, 114 and 115 of the Representation of the People Act are incorporated into the proceedings that are to be followed by the draft orders as we now have them. Accordingly, there is a possibility that grounds will exist for challenging either the fact that individual voters have voted when they were not entitled to do so or the validity or otherwise of the decision to reject a particular vote as amounting to a spoilt vote.
At the present time the clause would exclude any possibility of challenging these matters in court. It would be difficult—I fully accept this—to incorporate into the proposed schedule a new procedure for such court proceedings but it would not be impossible to do so. In so far as the Government seek to obtain from the referendums some support which will provide greater legitimacy for their proposals on devolution, I would invite them to consider why court proceedings should be excluded altogether. In the absence of a provision for challenging the rejection of individual ballot papers and in the absence of the possibility of people being prosecuted for the offences we discussed on a previous occasion, there are grounds for suggesting that the clause should not stand part of the Bill.
Baroness Strange: I should like to support this amendment, having already spoken on this particular point at Second Reading. I will be brief, and spare your Lordships, particularly as it is important to get this Bill through our House in time to get our buckets and spades for our Summer Recess, whenever that may be.
I am certainly in favour of a referendum as I feel it is important that everyone in Scotland has a say in how much government they are prepared to pay for. And, of course, if we have a parliament in Edinburgh and a parliament in London with two lots of Scottish Members of Parliament, we will certainly be paying twice—and twice for the same thing. And I am certainly Scottish enough not to want that.
However, the point here is perfectly clear and perfectly straightforward, and nothing to do with the idea of devolution as such at all. It is simply concerned with the fairness of the referendum. Of course no one wants niggling court cases going on for ever about nothing. But if the counting officer is appointed by the Secretary of State, and is answerable only to the
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Secretary of State and to no other court of justice in the land, it seems to me to carry more than a whiff of dictatorship. It is the type of election one might possibly expect, and would kick against, in a third world country. But not in Britain, which is a democracy and an example to all. The Scots voted overwhelmingly for a Labour government, although a lot of them voted for Conservatives and some also for the Liberal Democrats and for Scottish nationalists. That is perfectly plain. What is not plain is whether the Scots people really want an extra parliament. That is what the referendum is to find out. That is why it is so important for both the Opposition and the Government, and for everyone in Scotland, that the procedure is fair and just and is seen to be fair and just. That is why I support the amendment.
Lord Hardie: As the noble and learned Lord, Lord Mackay of Drumadoon, observed, this clause has a basis in precedent, first, in 1975 and then in 1978. In the Referendum Act 1975, the Scotland Act 1978 and the Wales Act of the same year, there are provisions which are of similar effect although not identical in terms.
I took the trouble to go back to look at the Committee stages of each of those Acts to see whether Members of this House had raised the question of the appropriateness of having such a provision in the Acts. My research indicates that as regards what became the Referendum Act 1975, at Committee stage there were only minor drafting amendments to the clause provided on behalf of the Government. No further amendments were provided. As the Scotland Bill was going through your Lordships' House, at Committee stage general amendments were proposed but no one challenged the appropriateness of the exclusion clause. Similarly, as regards the Wales Bill, there were two amendments, one of which was agreed and the other withdrawn. Neither related to this issue.
I also went back to the Second Reading debate on the Referendum Bill in this House. In dealing with Clause 4, the same number as we are considering, the then Lord Chancellor, Lord Elwyn-Jones, said:
"I come now to Clause 4. Since its introduction this has been amended so as to restrict the original rather sweeping exemptions from proceedings in a court of law. The Bill now provides only that the results of the referendum may not be challenged in the courts to force a recount, which will be a matter for the Counting Officer, or obtain a fresh poll. We believe this clause is vital to prevent frivolous challenges which would delay reaching a decision on membership, a delay which could have serious economic disadvantages. We consider the proposed limited exclusion of challenge through the courts to be essential. Your Lordships will know that any allegations against the Government about the handling of the poll can be pursued in Parliament. The clause does not, of course, exempt anyone accused of an offence under the relevant Representation of the People Act, or under the Order made under this Act, from the normal legal processes".—[Official Report, 29/4/75; cols. 1194–5.]
That was observed by the noble and learned Lord, Lord Mackay of Drumadoon, in his speech tonight. He accepted that clearly anyone who voted who was not entitled to do so would be liable to prosecution. The purpose of the clause is the same as that behind the equivalent clauses in the Referendum Act 1975 and the Scotland and Wales Acts of 1978. It was to prevent any

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challenges relating to the counting of votes or ballot papers. But it does not exclude any legal proceedings in relation to the referendum. As I have observed, people may be liable to criminal prosecution if they vote when they are not entitled to.
Furthermore, the courts, as Members of the Committee will be aware, are very jealous of their jurisdiction over clauses which seek to oust their powers. There is a substantial body of case law concerning the proper interpretation of such statutory provisions. Should any legal proceedings be brought challenging the legitimacy of the actings of the chief counting officer or of a local counting officer, it would be for the court, in accordance with that case law and in the circumstances of the particular case, to decide whether that challenge could be entertained in the light of Clause 4. For example, if it can be shown that a counting officer failed to carry out his statutory duties or had acted in any other way which was seen to be ultra vires, then the courts would intervene despite the terms of this clause.
With those assurances, I trust that Members of the Committee will agree that Clause 4 does no more than provide a valuable protection to ensure that we can act quickly in response to the results of the referendum. Perhaps I may take the point made by the noble and learned Lord, Lord Mackay of Drumadoon. I will be very surprised if the existence of proceedings in the courts challenging the referendum would have no effect on the introduction of the devolution Bill in either House. I would be astonished if in this House your Lordships did not raise the point that the whole question of the referendum and its outcome was being challenged. I am not giving any undertaking, but that is clearly a point that would be raised in debate. I am sure that the Committee would not fail to notice the existence of such proceedings.
In short, I invite the Committee to follow the precedent of the previous legislation that this House has not seen fit to challenge the appropriateness of similar provisions in the past. There have been referendums following on legislation containing such provisions and they appear to have worked well. I do not believe the fact that this is a pre-legislative referendum as opposed to a post-legislative referendum makes any difference. I urge Members of the Committee to withdraw their opposition to Clause 4.
7.15 p.m.
Lord Lester of Herne Hill: Before the noble and learned Lord sits down, can he confirm that Clause 4 does not seek in any way to exclude the principles of judicial review? I believe that follows from what he said. All that it does is immunise findings of fact by the chief counting officer so that if he or a counting officer were to act illegally beyond the four corners of statute or were to take leave of his or her senses by acting in an irrational way, then judicial review would be fully preserved and the courts would be likely to construe Clause 4 narrowly and not in any way seek to oust the
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jurisdiction of courts. If the noble and learned Lord agrees, does it follow that any suggestion of a whiff of dictatorship is entirely inappropriate and unjustified?
Lord Hardie: I thought I had made clear that that was my position about judicial review, that it would be open to someone to challenge the actings of a counting officer. I do not wish to comment about the use of the word "dictatorship".
Lord Burnham: Before the noble and learned Lord sits down, he may be aware of a very recent case in the general election. The result at Winchester may be challenged in the courts on the grounds that a block of votes was not counted. Obviously, I make no comment on the result of that. But is such an occurrence, which may have happened recently, not to be allowed to be handled by the courts?
Lord Hardie: If the returning officer failed or refused to count a block of votes, on one view that may be a failure to exercise his duties, but I do not want to speculate about such situations in this Committee.
Lord Mackay of Drumadoon: I begin by thanking the noble and learned Lord for his very full reply. I was interested to hear that he has had enough time to carry out his own research in response to this amendment. My experience of holding that office is that I was happy to leave such research to others.
I am grateful to the noble and learned Lord for dealing with what lay behind the two precedents. I am not entirely persuaded that they are exactly in point with the present Bill, which deals with advisory referendums. However, I take his point that no challenge was forthcoming when the relevant legislation was before your Lordships' House.
I was interested to hear what the noble and learned Lord said about how Clause 4 would fall to be construed by a court. He placed a relatively narrow construction on it, which was assisted by the contribution from the noble Lord, Lord Lester of Herne Hill. I am happy to say that the noble Lord is restoring the Liberal Democrat Benches to full support for the Government on this Bill. There was a brief hiccup in that position earlier today.
I shall read carefully what the noble and learned Lord has said because, contrary to some suggestions that have been made, we are not in the business of seeking to frustrate the Government's intention of holding the referendum some time in September. Indeed, if the Government get the vote that they seek, we are not in the business of seeking to frustrate them from placing the principal legislation before Parliament so that Parliament can then discuss in detail the major issues that arise from it. In the circumstances, I give notice to the Committee that I shall not insist on my opposition to the Question that Clause 4 shall stand part of the Bill.
Clause 4 agreed to.
Baroness Farrington of Ribbleton: This appears to be a convenient moment at which to break the Committee stage of this Bill. I therefore beg to move

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that the House do now resume. In moving this Motion, perhaps I may suggest that the Committee stage begins again not before 8.25 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Special Immigration Appeals Commission Bill [H.L.]
7.22 p.m.
Report received.
Clause 2 [Appeals]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 1:
Page 2, leave out lines 18 to 20.
The noble Lord said: My Lords, if it is convenient for your Lordships, I should like to speak to Amendments Nos. 1, 2 and 3 together. These three amendments relate to a point to which I referred previously—that is, the need to take account of Article 8 of the European Convention on Human Rights in establishing the new appeal rights to the special immigration appeals commission. I have been greatly assisted in my consideration of these matters by the noble Lord, Lord Lester of Herne Hill, who is constantly astute (and rightly so) to any lacunae that may appear in the legislation in this rather—I almost said "arcane" area; the noble Lord will take that in the best sense because he is a practitioner in this arcane area.
As I said previously, the main intention in providing appeal rights in the Bill has been to ensure that there is no risk of a breach of Article 3 of the ECHR in cases where there is presently no right of appeal on national security grounds. As I have explained, the aim has not been to give a right of appeal in all cases where an appeal is currently prohibited. We wish to ensure that there is a proper review in those cases where detention may be an issue. For the most part, this means that a right of appeal is required in those cases where there is an in-country right of appeal which is precluded only by the existing provisions restricting rights of appeal in national security cases.
The Bill does not therefore presently give a right of appeal in cases where entry clearance is refused because the Secretary of State has decided that the person's exclusion would be conducive to the public good. There is no question of detention or an Article 3 risk in those cases—and there is therefore no need to provide a general right of appeal.
We have, however, considered whether any other articles of the ECHR might require a right of appeal in some circumstances. As can be seen from my amendments, we have given particular thought to Article 8, which deals, among other things, with the right to respect for family life.
Article 8 allows that national security considerations can justify interference with this right, but there is nevertheless a need to provide for an effective review of any decision to ensure that any interference is in accordance with the law and is necessary.
For the ECHR rights arising from Article 8 considerations to be properly dealt with, the national security case underlying the refusal of entry clearance would need to be examined. If we do not provide a right of appeal to the new commission there would be a strong likelihood, following incorporation of the convention at least, that a court of judicial review would insist on seeing the national security details. For the reasons that I set out, which I believe found favour with your Lordships on the last occasion that we debated this, we would not want that to happen. We believe—I hope that your Lordships will assent to this—that it would clearly be preferable for any consideration of the national security case to be dealt with by a commission which has been set up especially to deal with any such cases which arise.
Our amendments limit the new right of appeal in refusal of entry clearance cases to those cases where the right to family life is truly at issue. That means there will be a right of appeal in cases where people seek entry to the United Kingdom under the immigration rules to exercise rights of access to a child resident here (paragraph (b)(i)); as the spouse or fiancé of a person present and settled here (paragraph (b)(ii)); and as the parent, grandparent or other dependent relative of a person present and settled here (paragraph (b)(iii)). We do not envisage that there will be many cases where this extended right of appeal will be needed. However, there may be some. In the circumstances, it is clearly preferable to provide a right of appeal to prevent potential difficulties which we have identified.
The structure is simple. Amendment No. 2 restructures Clause 2(2) and inserts the new rights of appeal. Amendment No. 1 is simply consequential to this restructuring. Amendment No. 3 defines the term immigration rules which is inserted by Amendment No. 2. I commend the amendments to the House. I beg to move.
Lord Lester of Herne Hill: My Lords, I must be careful not to be too complimentary to the noble Lord, Lord Williams of Mostyn. I say that because when my wife read the Official Report of the Committee stage of this Bill she said that she had never seen so much flattery or so many compliments paid by each of us to the other. Indeed, it reminded her of the situation at the end of the 19th century when there were two constitutional legal historians, one called Freeman and the other called Stubbs, who always wrote favourable book reviews of each other's work until a wag wrote a piece of doggerel in which he said something like:
"Ladling butter from alternate tubs;
Stubbs butters Freeman;
Freeman butters Stubbs".
The trouble is that I greatly admire the work that has been done by the Government and their advisers on this Bill to make it legislation of which we can all be proud.
I strongly support the amendment because it gives proper effect to the right to respect for family life in Article 8 of the convention. It also gives proper respect to European Community law. It also does something very important: it makes the special immigration appeals commission a one-stop shop. If one is setting up a

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commission of such repute and expertise, I am very much in favour of ensuring that the problems are tackled by that body and not by a splintering of the jurisdiction. I agree with the Minister that it would be undesirable for a judicial review court to be involved in this area and that it would be better to have it within the jurisdiction of the special immigration appeals commission. This is a generous provision. It is hardly likely ever to be exercised in practice, but it seems to me to be clear and right. I support it.
Lord Williams of Mostyn: My Lords, I am most grateful for those remarks. I do not believe that there is any other contribution to be made. Accordingly, I ask that your Lordships approve the amendment.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 2 and 3:
Page 2, line 23, at end insert ("and—

(a) he seeks to rely on an enforceable Community right or any provision made under section 2(2) of the European Communities Act 1972, or

(b) he seeks to enter the United Kingdom under immigration rules making provision about entry—

(i) to exercise rights of access to a child resident there,

(ii) as the spouse or fiancé of a person present and settled there, or

(iii) as the parent, grandparent or other dependent relative of a person present and settled there.").

Page 2, line 25, at end insert—
("(4) In this section, "immigration rules" has the same meaning as in the Immigration Act 1971.").
On Question, amendments agreed to.
7.30 p.m.
Clause 4 [Determination of Appeals]:
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 4:
Leave out Clause 4 and insert the following new clause—
DETERMINATION OF APPEALS
(" .—(1) The Special Immigration Appeals Commission on an appeal to it under this Act—

(a) shall determine only the issue relating to the contention that the appellant's admission to or stay in the United Kingdom is not conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for reasons of a political nature; and

(b) if it allows the appeal?—

(i) shall remit it to an adjudicator or special adjudicator as appropriate to determine the remaining issues under the applicable provisions of Part II of the Immigration Act 1971 or the Asylum and Immigration Appeals Act 1993 as appropriate; or

(ii) depending on the circumstances of the appellant may, after allowing the appeal, remit the matter to the Secretary of State to consider the appellant's immigration status.

(2) For the purposes of section 1(a) above the Commission shall allow the appeal if it considers that the decision or action by the Secretary of State or an officer (in the interests of national security
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or of the relations between the United Kingdom and any other country or for reasons of a political nature) is not justified viewed in the context of the facts existing at the date of hearing of the appeal.
(3) For the purposes of section 1(b)(ii) above there shall be a right of appeal under Part II of the Immigration Act 1971 against any further refusal of the appellant's application by the Secretary of State.").
The noble Baroness said: My Lords, I have tabled this amendment to try to resolve a problem created by the wording of the amendment tabled by the Minister in Committee which now forms Clause 4. Having studied the Minister's speech carefully in Hansard, I believe that there are problems not previously identified which follow upon the application of Clause 4 to immigration appeals which fall within the scope of the Bill. In their efforts to prevent the Home Secretary from having a right of appeal from the decision of the commission, the Government seem to have cut away at the existing avenues of appeal available to those who seek to remain here. I hope that this is an unintended result of the new Clause 4 and that the Minister will be able to reassure me on the matter.
I do not in any way impugn the ability of members of the commission to make decisions which may properly fall within its scope of decision. I question what that scope of decision should be. I am aware that at Committee stage the Minister went further than the remarks that I have just made about the commission. He said:
"We have absolute confidence in the independent review".—[Official Report, 23/6/97; col. 1435],
Strong words indeed. I wonder whether the appellants will endorse that view in times to come.
The objective of my amendment is to provide that in all cases, including asylum appeals, once the national security issue is determined in the appellant's favour, the matter should be referred to the appropriate appellate authority to proceed to hear the case on the remaining immigration/asylum issues in the normal way under the scheme of appeal contained within the Immigration Act 1971 and the Asylum and Immigration Appeals Act 1993.
The amendment which now forms Clause 4 of the Bill reproduces the whole of Section 19 of the 1971 Act. The essence of my objection is that to empower the commission to allow an appeal if the decision of the Secretary of State appears not to be in accordance with the law is a far wider remit than for the commission to consider the validity and cogency of the facts upon which the Secretary of State has decided that the appellant's presence is not in the interests of national security, etcetera. Was this really the outcome intended by the Government? In any event, what points of law are envisaged when the decision of the Secretary of State will have been taken on the facts and evidence known to him at the time and his judgment is as to whether they justified the exclusion of the appellant on the grounds of national security?
At the moment there is no provision for the commission to remit other outstanding immigration issues, that is, non-national security matters, to an adjudicator or back to the Secretary of State. Does that mean that the commission would be expected to

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determine such other issues as well as that of the exercise of the discretion of the Secretary of State on the grounds of national security? If so, the appellant is at a disadvantage because there is no right of appeal beyond the commission, unlike to the Immigration Appeals Tribunal and Court of Appeal under the Immigration Act 1971 and the Asylum and Immigration Appeals Act 1993 for other applicants. Even a right of appeal from the commission would not be as satisfactory as the power to remit the issues back to an adjudicator or to the Secretary of State. Is it the Government's intention that the commission should remit such matters? If so, why is that provision not in their new Clause 4?
My amendment seeks to find a possible way to resolve the problem that I have outlined. The amendment provides that when the commission determines appeals under Clause 2 it should deal only with the issue of national security or the relations between the United Kingdom and any other country or reasons of a political nature and whether the Secretary of State's discretion should have been exercised differently in the light of the facts at the date of the hearing. It is my intention that it is only in appeals under Clause 2(1)(g)—cases involving asylum—that the commission should balance the considerations of national security with those of the fear of persecution or torture if the appellant were to be returned to the country of origin, along with any compassionate circumstances relating to the claim for asylum, and allow the appeal if the considerations of fear or persecution or torture override the threat to national security.
Where an appeal is allowed on an appeal which falls within the definitions of Clause 2(1)(a) to (f) the remaining issues should be remitted to an adjudicator to determine the remaining non-asylum issues in the usual way under the provisions of Part II of the Immigration Act 1971. Where an appeal is allowed on a Clause 2(1)(g) appeal the commission should give directions and/or make recommendations as it sees fit in order to give effect to the determination.
I am aware that the Minister may find my drafting wanting in giving effect to my intentions, but I hope that I have made my intentions clear. I hope that this amendment will be seen as opening up a way forward that may be adopted by the Government at Third Reading or when the Bill reaches the Commons. I beg to move.
Lord Lester of Herne Hill: My Lords, the proposed amendment would frustrate the central aim and object of the Bill which I take to be to secure compliance with the judgment of the European Court of Human Rights in Chahal and the European Convention by a method that is orderly and efficient and respects the need not only to secure convention rights but to protect the public interest in national security. The category of appellants whom we are considering is those who fall within Clause 2. I hope that I shall not cause offence if I define them simply as suspected terrorists for short because there will be others, but it makes it clear that we are dealing here with a very exceptional class of people.
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The question that we are considering is: what should be the scope of the jurisdiction of the special immigration appeals commission in relation to that exceptional and special class of cases? We are told that it will involve probably no more than two or three a year. Under Clause 4 as it stands, without the amendment the commission has the jurisdiction to determine all of the relevant issues of law and fact and to give a binding decision upon them on the merits. In my view, that is what is required by Article 13 of the convention—the requirement that there be an effective domestic remedy and that it has been implemented sensitively with a special procedure. I would have thought that the noble Baroness would have been pleased with it because it does not treat the matter as an ordinary criminal trial. Given that we are dealing with suspected terrorists, it seeks to balance the rights of the appellant against the need for national security.
The amendment of the noble Baroness would fracture the commission's jurisdiction into splinters. The commission would be confined to addressing only the "non-conducive to public good" grounds—national security. The matter would then have to be remitted to the adjudicator to deal with the other legal issues or the Home Secretary to make a discretionary decision about the appellant's immigration status. That would be an unnecessarily complicated and fractured procedural framework. I see no good reason why the jurisdiction should be fractured, especially when the commission will be composed of someone with great judicial experience and the chief immigration adjudicator himself—the person at the hierarchy of the immigration appeal system. Moreover, under the amendment as I read it, the commission's decision would not be legally binding on the Home Secretary. By knocking out Clause 4 and substituting this amendment that too would not comply with the convention. Further, the commission would have to consider the appeal wearing blinkers. Because under the amendment it could consider only the facts existing at the date of the hearing of the appeal, which is a defect. I cannot for the life of me understand why this complexity should be regarded as somehow necessary or giving greater rights to the individual in a way that would meet the requirements of the Bill as a whole. For those reasons, I should be sorry to see this clause replace Clause 4 in its present form.
Lord Williams of Mostyn: My Lords, I am grateful to the noble Baroness for her explanation. I have to say at once that I am unable to support Amendment No. 4. As the noble Lord, Lord Lester of Herne Hill, observed, Amendment No. 4 would replace Clause 4 which was introduced unopposed as a government amendment in Committee. It would replace it with new provisions governing the determination of appeals heard by the special immigration appeals commission. The new clause would have a significant effect in some important respects. It is true that there would be few cases per year, but those cases are of extreme importance.
The most significant change which the amendment offers is that under its terms the commission would deal only with the issue of whether the appellant should be excluded from, or be required to leave, the UK for

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reasons of national security, international relations, or for other reasons of a political nature. The felicitous phrase of the noble Lord, Lord Lester—I shall be in trouble with Lady Lester—was the "fractured jurisdiction". I believe that to be accurate as well as felicitous. As the Bill is currently drafted—this is its virtue—the commission would deal with all aspects of an appeal which fall within its jurisdiction, including, most important, any application for asylum.
If the amendment became law, it would provide that the commission would refer appeals which it had allowed to an adjudicator, a special adjudicator, or to the Home Secretary, for further decisions on outstanding matters. That is not an efficient use of resources or an efficient way of coming to these difficult decisions. We do not believe that jurisdiction should be divided in that way. It would be inefficient and unnecessary.
The tribunal of the quality and nature of the one which is to be created by the Bill will be able to deal with all aspects of the case and to conduct a full merits review on all points. There is only a single appeal. I respectfully dissent from the noble Baroness's proposition that that represents any unfairness to appellants. As a general rule, if the national security case is not accepted by the commission, it is likely that the appellant will be found to meet the requirements of the immigration rules and be allowed to come to, or remain in, the UK.
Even if we did accept that the proposed division of jurisdiction was a sensible way to approach these matters, the amendment does not allow for any consideration of the merits of a claim for asylum or any associated Article 3 considerations in any case where the national security case has been upheld by the commission. It is important to remember what was said by me on behalf of the Government on the last occasion. One very important outcome of the judgment in Chahal's case is that it is clear that there can be no question of a balancing act between the risk to an individual and national security considerations. If there are good grounds for believing that a person will be an Article 3 risk then the national security case for his or her removal is effectively—I put this bluntly—irrelevant.
I know from our previous discussions that the noble Baroness, Lady Blatch, is concerned that in the sort of cases which will come before the commission damage may be done to the interests of the nation or the state. However, as I have said, and as the noble Lord, Lord Lester, has emphasised more than once, Article 3 of the convention is an absolute obligation. If there is an Article 3 risk, then that concludes the matter.
That is why we envisage that the commission will resolve any claim for asylum before it considers the national security case. There is no benefit to be gained from considering the national security case for removal if the commission reaches the view that asylum or wider Article 3 considerations apply.
The existing Clause 4 establishes that the commission will undertake a merits review of the cases which come before it. That was warmly welcomed by the noble
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Lord, Lord Lester, on the earlier occasion. The commission will be able to consider whether the Home Secretary was right to reach a decision on matters where he exercises his discretion—such as to deport on national security grounds—on the basis of a consideration of the evidence. It will be able to consider matters relevant to the law and to the immigration rules in respect of its wider jurisdiction. Clause 4(1)(a)(i) makes that plain: the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case.
In bringing forward the original amendment, we used the relevant aspects of Section 19 of the 1971 Act which we found of assistance. I do not think that there is any doubt that the current Clause 4 achieves what is wanted. If the commission takes a different view of the national security case from that taken by the Home Secretary, it will be able to overturn that decision; that is to say, the Bill, if it becomes law, puts into existence a machinery which involves a senior judicial figure, the senior adjudication officer, and one other person. That is the conclusion to which we came—I believe rightly—in those small number of cases. If the explanation I have been able to give assists the noble Baroness, I would ask her to withdraw the amendment.
7.45 p.m.
Baroness Anelay of St. Johns: My Lords, I thank the Minister for his reply. He has been of some assistance, but I still have some reservations. I shall want to read Hansard carefully and reflect upon what he has said. I cannot rule out returning to the issue on Third Reading.
We on these Benches may also wish to return on Third Reading to two central issues identified by my noble friend Lady Blatch in Committee. They are issues which we believe the Minister failed adequately to address at that stage. In fairness to him, I shall refer briefly to those two issues.
I heard what the Minister and the noble Lord, Lord Lester of Herne Hill, said about the Chahal case. We on these Benches have concerns that the Bill goes significantly beyond what was required by that case, and we are concerned for the reasons involved in it.
As the Bill is currently drafted, there is nothing to stop the commission from taking a compassionate view of the appellant's circumstances and deciding that those outweigh the national security aspects, and that the appeal should be allowed on that ground. That, in itself, would appear to go beyond Chahal. There could be bizarre reasons for overturning perfectly rational arguments made by the Secretary of State as to why a person should be excluded or deported for reasons of national security, only to find that the commission, whose decision would be binding on the Secretary of State, took a view that his discretion should have been exercised differently because of personal circumstances.
That could compromise considerably the interests of national security. That possibility emphasises the need for there to be a right of appeal by the appellant and the Secretary of State to the Court of Appeal on a point of law. It means also that the only way in which to deal

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effectively with that is for the commission's task to be restricted to considering the national security aspects, and whether the Secretary of State exercised his discretion correctly in that regard, and for it not to be able to take into account any other matter, such as the compassionate circumstances of the appellant, provided that there would be no failure to comply with Article 3 of the ECHR or other international obligations, in reaching its decision on whether the Secretary of State exercised his decision correctly.
I should also like to remind the Minister that in Committee he gave no answer to the point made by my noble friend Lady Blatch about whether both directions and recommendations of the commission are to be binding on the Secretary of State or merely directions and, if the latter, what might be the status of any recommendation.
Moreover, there appears to be no limit whatever on what directions or recommendations can be made. Could it, for example, include a direction that the appellant should be given indefinite leave to remain or that entry clearance should be granted to other members of the appellant's family who are outside the United Kingdom?
We on these Benches may wish to return to these matters in some detail at Third Reading. Today, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hoyle: My Lords, I beg to move that the House do now adjourn during pleasure until 8.25 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.51 to 8.25 p.m.]

Referendums (Scotland and Wales) Bill
House to be again in Committee.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 52:
After Clause 4, insert the following new clause—
SCOTTISH PARLIAMENT: WHITE PAPER TO BE PUBLISHED AND DISTRIBUTED BEFORE REFERENDUM
(" .—(1) The Secretary of State for Scotland shall publish a White Paper detailing his proposals for the establishment and powers of a Scottish Parliament and indicating the potential constitutional implications of the establishment of such a Parliament.
(2) The Secretary of State for Scotland shall publish a summary of the White Paper.
(3) No referendum on the establishment of a Scottish Parliament shall be held less than two weeks after the summary has been published and distributed to every elector in Scotland.").
The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 53 and 54 which seek to incorporate some new clauses into the Bill. They follow largely the same track, although with some differences.
The amendments can best be described as being in three parts. The first part insists that the Secretary of State shall publish a White Paper detailing his proposals
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for the establishment and powers of a Scottish parliament and a Welsh assembly in the case of Amendments Nos. 53 and 54.
We have been along this road before. I do not suppose that I shall be told this evening when the White Papers are to be published. I understand—and it would be nice if government Ministers could confirm or deny this— that the Welsh White Paper was ready and could be published. In the interests of open government, I am quite sure that the Minister will tell me whether or not that is true. Obviously, it is either true or it is not true that the Welsh White Paper is ready. I can understand that because it is a simpler proposition.
The Scottish White Paper is not ready but I have been assured that the date on which it is to be published will be announced on Report. As Report stage will be a fortnight today, I wonder whether that means that we shall not receive the White Paper until after a fortnight today; or are we to receive it a little earlier? Monday seems an odd day on which to launch a White Paper and I wonder whether Friday, 18th July, might be a better day. Perhaps I may tempt the Minister to tell me on which of those days the White Paper is to be produced. Perhaps I may be told also whether it is intended to produce the Welsh and Scottish White Papers on the same day. If the argument of the noble Lord, Lord Williams of Mostyn, as regards the referendum dates is compelling, I should have thought that the Welsh White Paper should be published a week before the Scottish one so that the Welsh people will have a whole week before the Scots in order to consider the matter untrammelled by the Scottish situation. The media will be able to give their whole attention to that issue. Indeed, if I had thought about the matter earlier, I might have tabled an amendment to that effect. If the noble Lord, Lord Williams of Mostyn, is to answer this debate, he may wish to turn his attention to that proposition; namely, that the Welsh White Paper should be published next week to give the Welsh people an opportunity to have a week free from the distractions of the Scottish White Paper. If that were to happen, I should find the noble Lord's argument about the referendum dates just a little—and only "just a little"—more convincing.
Amendment No. 52 wants the White Paper to indicate the potential constitutional implications. I am not sure whether it will do that, but I hope it will. The Welsh amendment, to which my noble friend Lord Lucas will speak, invites the Government to tell the Welsh people why they are not to have tax-varying powers which the Scots are to have. The amendment in the name of my noble friend Lord Crickhowell invites the Welsh White Paper to indicate the functions and responsibilities of the Secretary of State for Wales, the Welsh Office, Welsh Members of Parliament and Welsh local government. That is fairly straightforward.
The second paragraph of all three amendments—that is, Amendments Nos. 52, 53 and 54—suggests that the Secretaries of State should publish a summary of the White Papers. I believe that there is considerable merit in that suggestion. Indeed, it actually links back to the amendment that we discussed before the dinner break, when we discussed how we collectively can get over

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the message about the referendum, and the pluses and minuses, to the public in Scotland and Wales. For example, do we send out a paper or a leaflet within which both sides would advance their arguments?
I was going to say that the noble Lord, Lord Williams, gave me some assurances in that respect, but I do not believe that he even did that. Nevertheless, he said that he would think about it on a very "maybe" basis. It was on that basis that I withdrew the amendment. However, that does not actually address the question of a summary of the White Paper. That seems to me to be reasonably politically neutral in the sense that it neither advocates the "Yes" campaign or the "No" campaign. I do not know what the White Paper will be like, but I have not yet seen one which would not have merited a summary. I believe that the same will apply to these White Papers. I would never go as far as someone who suggested that everyone in Scotland and Wales should receive a White Paper. I believe that the noble and learned Lord, Lord Simon of Glaisdale, said that it was not on anyone's summer reading list. That certainly is true. It may have to be on mine, but I would not inflict that upon the majority of my fellow countrymen or Welshmen. I believe that a summary is important and I seriously wonder whether the Government propose to produce a summary of the White Papers for Scotland and Wales.
My third point is that that summary ought to be published and distributed to every elector at least two weeks before the referendum date. I believe that to be self-evident. Interestingly enough—and I alluded to this earlier—in 1975 there was a popular version of the White Paper. In fact, I am not sure quite how "popular" it was because that was what it was called—the popular version of the White Paper. That related to the continuing membership of the United Kingdom in the European Community. However, at the same time, "Yes" and "No.' leaflets were produced and distributed at public expense. So, if I can put it in shorthand fashion, the public received in the Freepost a popular version of the White Paper, together with a "Yes" and a "No" leaflet. Although it harks back to a previous amendment, I would submit that that is a fair way to present the arguments to the electorate. I hope that we may be able to consider doing just that at this time.
In 1979 none of those things happened, partly because the campaign groups could not agree and partly because the Government, under the Prime Ministership of the noble Lord, Lord Callaghan, could not agree. Their own Back-Benchers could not agree on the proposition that it should be a popular version because, clearly, who writes the popular version becomes quite important as, indeed, does who writes the accompanying commentary. Therefore, if we have to look back at 1975 and 1979, the precedents are pretty inconclusive: one points in one direction while the other points in another. That is why I wonder what direction we are to follow this time.
In summary, what we are asking for in the proposed new clause is, first, that the White Paper should be produced in plenty of time. Of course, I accept that we have now had the commitment from the Government that it will be announced or else be available by the time
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we reach Report stage. Secondly, we will have six weeks, plus or minus a week or two, in order to debate the White Papers before we vote. Thirdly, the second part of the amendments asks for a summary of the White Papers so that the electorate can actually have a brief look at the position, and the third part of the amendments asks that the summary should be,
"published and distributed to every elector",
in Scotland and Wales at least two weeks before the referendum. As I said, I have been speaking to Amendments Nos. 52, 53 and 54. I believe that they are all important and sensible amendments which I am sure the Government will accept. I beg to move.
Lord Thomas of Gresford: Perhaps I may deal with one of the points which is consistently made by the noble Lord, Lord Mackay. He complains about our referring to the differences in the campaigns in Wales and Scotland in 1979. Indeed, the noble Earl, Lord Onslow, who I am pleased to see is now in his place, described such references as "patronising" during the last Committee stage.
In a Report, An Assembly for Wales, published by The Constitution Unit, which is an independent inquiry into the implementation of constitutional reform under the auspices of the Faculty of Laws, University College London, published in 1996, the following was said:
"The Government's policy [in 1979] on devolution, as transmitted by the media and as perceived by the general public, was largely that concerned with Scotland. The issues of the Welsh devolution debate were given very little coverage outside Wales (despite the differences, the two debates appeared repetitive so the second was deemed not newsworthy). Furthermore, even within Wales, the dominance of the London press with total morning daily sales of 700,000 compared with less than 150,000 for the Welsh morning dailies meant that the Welsh debate failed to reach most Welsh electors. Nor was this deficiency overcome by the broadcasting media. While both BBC Wales and HTV Wales scheduled a wide range of devolution and referendum programmes, the national news programmes reflected the dominance of Scottish devolution in the referendum debate. The different provisions for Welsh devolution, including its limited character compared to Scotland were not fully explained or appreciated".
The references that refer to that research were from a publication by Messrs. Foulkes, Jones and Wilford, the Welsh Veto, in 1983.
When the noble Lord, Lord Mackay, deals with the issue with some hilarity and suggests that perhaps the Welsh White Paper should be published first, he totally ignores what is really a very serious issue; namely, that there is a difference between what is happening in Scotland and Wales and there is a need for it to be fully explained. It is with that in mind that I support the tenor of what the noble Lord said—that is, that the White Paper should be published and distributed before the referendums take place—but the terms in which he expresses it reflect, as I said, some hilarity as regards the Welsh situation and are not something that I can accept.
Lord Lucas: I think perhaps that the need to treat the matter with some hilarity comes from the Government's position which is so obviously unbending on the issue. As my noble friend Lord Mackay has accurately pointed out, if the Government were really interested in giving the Welsh time to think about the issues on their own,

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they would publish the Welsh White Paper now and that would indeed give them the full attention of the media for a period of some weeks.
I do not want to repeat anything said by my noble friend but I do want to pick up the difference between Amendments Nos. 52 and 53; namely, that we seek to ensure that the White Paper satisfies the reasonable curiosity of the Welsh as to why they are being offered less than the Scots. If I were to invite the noble Lords, Lord Sewel and Lord Williams, to supper and tempt them by publishing the menus in advance, I should think that that was a reasonable thing to do. However, if my proposals were to offer the noble Lord, Lord Sewel, a slap-up meal and to stop the noble Lord, Lord Williams, short of the soup course, they might find that a little surprising.
Lord Williams of Mostyn: The noble Lord's last remark is not funny at all, as I spent the dinner hour on other business and did not even have the opportunity to take soup.
Lord Lucas: I believe that it would be a reasonable question for the noble Lord, Lord Williams, to ask as to why I would wish him to stop short of the soup course. I am sure that I would be able to convince him that there was good reason for it. I could not think of it at present but, if I were to do such a thing, I would have a good reason. I think it right that the Welsh should be told.
Lord Sewel: Sooner or later—I suspect it will be sooner—I shall have to deprive the noble Lord, Lord Mackay of Ardbrecknish, of a great deal of harmless fun and tell him when the White Paper will be published. However, that will not happen just yet; he will have to wait a little longer.
The effect of the new clauses as proposed by Members of the Committee opposite would be to require the publication of White Papers which would specifically refer to the,
"potential constitutional implications of the establishment of"
a Scottish parliament and a Welsh assembly. The new clause proposed by the noble Lord, Lord Crickhowell, who is not in his place at present, specifies in more detail the subjects which should be covered in the White Paper.
By virtue of these amendments the White Papers would have to be published before this. Bill receives Royal Assent. Indeed there is a ticklish technical question here. These are not so much wrecking amendments as impossible amendments. If they were accepted, they would create a duty by statute which could be fulfilled only before the statute came into force. That is quite a nice logical somersault. There is a little difficulty there. We await no doubt the algebraic formula that springs us from that trap. However, my principal difficulties with the noble Lords' proposals are more than simply technical.
The new clauses would also require the Secretary of State to publish summaries of the White Papers for Scotland and Wales which would be distributed to every elector in Scotland and Wales respectively. The
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referendums would be held no fewer than two weeks after such distribution. That just goes to show that we try to understand the amendments.
The Government are committed to setting out in the White Paper, to be published shortly, their detailed proposals for the establishment of a Scottish parliament. There is no need to require this in statute; it will happen. It is absolutely clear that that will happen. I think that the noble Lord, Lord Mackay, accepts that. There has never been any doubt about our intentions which were set out in our manifesto. I am therefore a little surprised that that aspect has been focused upon in the new clauses. The Government are as concerned as Members of the Committee opposite to ensure that electors are adequately informed about the Government's proposals before they are asked to vote on them. I am sure that when the people of Scotland and Wales vote they will be well aware of what they are being asked to express their views on. I do not think there is the slightest possibility of an uninformed electorate.
The new clauses also propose the publication of summary versions of the Scottish and Welsh White Papers, to be distributed to every elector in Scotland and Wales respectively. There is little between us on this. I assure the Committee that the Government are giving serious consideration to the question of whether and how further information about their proposals should be made available. I give a full and complete assurance that I am happy to express to my ministerial colleagues the view of the noble Lord, Lord Mackay of Ardbrecknish, that a summary of the White Paper should be distributed.
We shall publish the White Paper shortly. As we made clear earlier, the date of publication will be made clear by or at Report. We shall ensure that there is an opportunity to debate it in this Chamber and we shall ensure that there is ample opportunity for public debate in advance of the referendums. We shall carefully consider what further information should be provided to voters. In the light of those assurances I hope that noble Lords will feel able to withdraw the amendments.
The Earl of Onslow: Before the noble Lord sits down, he gently skirted the subject of the constitutional implications of devolution. Will they be mentioned in the White Paper?
Lord Sewel: I find it difficult to see how two White Papers dealing with the future government of Scotland and Wales will not deal with constitutional issues.
8.45 p.m.
Lord Mackay of Ardbrecknish: I thank the noble Lord, Lord Sewel, for adding to what his noble friend Lord Williams of Mostyn said before dinner as regards a similar but slightly different amendment. I welcome the assurance that the Government are considering producing a summary of the White Paper and perhaps providing further information, I hope along the lines of a yes and a no leaflet to be distributed to every elector. I hope they will decide to do that because I believe that

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will achieve the bigger turnout that they want and it will give us a clear view of what the Scottish and Welsh people want.
It is clear that I shall have some more fun about the date of the White Paper. I am grateful for what I thought was the support of the noble Lord, Lord Thomas of Gresford. If the Welsh White Paper is ready, why not publish it and let it be debated by the UK national newspapers now, in advance of a Scottish White Paper being issued? He and the Government fear that if they are issued together the Welsh White Paper will be subsumed in the Scottish argument. I am grateful to the noble Lord for his comments. The Government might consider that. I notice that they managed to avoid saying whether the Welsh White Paper was ready for publication. However, I suggest that if it is ready for publication they could hold a press conference in Cardiff this Friday. That would give all the weekend papers the necessary Mandelsonian briefing and all of us would be able to read about the Welsh proposals separately from the Scottish proposals. I suspect the latter proposals—as I have not been told anything to the contrary—might be issued the following Friday so that that weekend's papers will be full of the details of the Scottish White Paper. Seriously, there is much to be said for that. It would be a sensible way to deal with this issue.
As regards the proposed new Subsections (2) and (3) of the amendment, I am grateful for the assurances that the noble Lord has given. I am grateful that the Government are considering this matter seriously. I am sure he takes my point that the average Government White Paper is not something that everyone wishes to get hold of, read, mark and inwardly digest. They would prefer a summary. The precedents of 1975 are there for us to follow. While the situation in 1979 did not work like that, we should look at the position in 1975. I hope that the Government will be able to tell us at Report stage what they intend to do about these matters. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 53 and 54 not moved.]
Clause 5 [Expenditure]:
[Amendments Nos. 55 to 57 not moved.]
Clause 5 agreed to.
Clause 6 agreed to.
Schedule 1 [Section 1(2)]:
[Amendments Nos. 58 to 60 not moved.]
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 61:
Page 4, line 9, at end insert ("AS DETAILED IN THE WHITE PAPER").
The noble Lord said: In some ways this amendment takes us back to the issue of whether we should have a pre or a post-legislative referendum. The terms of the post-legislative referendum which was held in 1979 were clear. It asked whether the electorate agreed that the proposals in the Act should be implemented. That seems straightforward and uncomplicated. People knew what the Act contained. It had been debated long and
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earnestly both in this place and in the other place and was well reported in the Scottish newspapers. There was plenty of detail; nobody was in any doubt. A White Paper does not have quite the same authority. It has no legislative authority, for example. As I have said on a number of occasions, there will not be much opportunity to comment on the White Paper in the course of the month of August, a point drawn to the attention of Members of the Committee by the noble Lord, Lord Monkswell, and made by the noble Baroness, Lady Blackstone, earlier today with regard to an education White Paper which the Government have just announced. There will thus be little chance of comment in the Autumn while the Bill is being prepared. The comments on the White Paper will therefore largely be after the referendum during the progress of the Bill through this House and through the other place and there could be changes.
The point of the amendment is to hear what the Government have to say about this matter. As I understand it, Scottish people will be asked to make a generalised decision about whether or not they want an assembly or parliament. We are told by the Government that details of the assembly or parliament, its powers and the way it will operate, will be set out in a White Paper which we have not seen and that the people will be asked to vote on that White Paper. If that is the case and people in Scotland and Wales are to be asked to vote on the White Paper, why not say so? Why not say. "as detailed in the White Paper"? One wonders whether there might be a bit of sleight of hand and that what we read in the White Paper, if the Scottish and Welsh people decide that that is what they want, might not be what appears at the end of the legislative process.
It is not that Members here or in the other place will make life difficult for the Government, I suspect, but that the Government may, in the light of consultation and observations, decide that they have to change some of the things they said in the White Paper that they would do. It seems to me quite difficult, and perhaps the Minister will say that it is difficult, to decide what is a major amendment and what is a minor amendment to the White Paper between the White Paper and legislation. I believe that that underlines the fact that we would be far better with a post-legislative referendum. I do not myself approve of referendums but, if we have to have them, they ought to take place after the legislation has passed through this House or, let us say, in the case of the single European currency, after the decision has been taken in Parliament.
I assume that the Government will resist this amendment. I am interested to know why they resist it and how closely they will feel themselves bound to the White Paper if they obtain a majority in either or both of these referendums. I believe that the Committee and the world outside might be very interested to know the answer to that question. I beg to move.
Lady Saltoun of Abernethy: I should like to add one point to what the noble Lord, Lord Mackay, said. We are being asked to consider this White Paper in the month of August. As I understand it, people will probably be invited to vote in a referendum in

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September. I believe that it is worth putting on record that between the years 1900 and 1992 there has never been a general election in the months of August or September. The earliest one that I know of took place in the second half of October.
The months of August and September are traditionally months in which a great many people are on holiday, particularly professional people who would be of assistance in helping the people of Scotland to understand the implications of a White Paper. It is important to bear that point in mind and that a longer time should be given to the people of Scotland to understand the implications of what they are being asked to vote on.
Lord Williams of Mostyn: I do resist the amendments on the basis that they are not necessary. The questions spell out,
"Parliament has decided to consult people in Scotland on the Government's proposals for a Scottish Parliament",
and similarly,
"Parliament has decided to consult people in Wales on the Government's proposals for a Welsh Assembly".
Those proposals will be contained in the White Papers. My noble friend Lord Sewel and I have undertaken until it is perhaps becoming tediously repetitive that those proposals will be published and Members will have an opportunity to discuss them before the Recess. There is no point having reference to the White Paper, particularly when one remembers that the noble Lord, Lord Mackay of Ardbrecknish, said with regard to the previous amendment that he did not suggest that everyone in Scotland and Wales should have a copy of the White Paper.
As regards the question about timing, I hear what the noble Lady says, but we have made plain on a number of occasions what the hoped-for timetable is. I do not think I can usefully repeat the arguments except to say finally, in answer to the noble Lord, Lord Mackay of Ardbrecknish, that it has been made plain on a number of occasions that it is the Government's position that the referendums are to be advisory and for guidance. The Government's proposals will have been published in the White Papers and, I hope, fully discussed by the people of Scotland and Wales.
If the original purpose of these amendments was to obtain the undertaking that the White Papers will be published before the Recess, I do not think I can say any more often that that will be the case.
Lord Mackay of Ardbrecknish: I think perhaps the noble Lord is keen to get to his supper, having conducted the dinner-hour business, something I remember doing myself, so I have some sympathy with him.
I hear what he says about not needing to put the White Paper point into the question because he believes that the preamble is sufficient. If he is putting on record that "on the Government's proposals" means "the White Paper", that is certainly progress and we have achieved a little. I would still like to see the White Paper referred to in the Bill.
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I did suggest that people would not want to read a White Paper but I also suggested that they might want to read a summary, and I believe they should be given the opportunity of doing so. I hope that the noble Lord, Lord Williams of Mostyn, is not dismissing out of hand the possibility of a summary of the Welsh and Scottish White Papers going to the Welsh and Scottish people. I think it is important that a summary should go to them. As I said earlier, in 1975 a summary was sent out. I do not believe that it is beyond the wit of man, woman or officials to produce a summary. In many White Papers produced by government—I can certainly speak for the previous Government—an attempt is made to produce a summary because we realise that not everyone will have the time, the interest or indeed the funds to purchase and read the original White Papers, but a summary is important.
However, with the noble Lord's assurance that the question means "a Scottish Parliament along the lines of the White Paper", I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 61A to 65 not moved.]
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 65A:
Page 4, leave out lines 18 and 19 and insert ("I AGREE THAT A SCOTTISH PARLIAMENT SHOULD HAVE FULL POWERS OVER ALL AFFAIRS AFFECTING SCOTLAND").
The noble and learned Lord said: I agree with the Liberal Democrats that this referendum, and therefore this Bill, is entirely unnecessary. I, no more than the Liberal Democrats, am impressed by the specious argument put forward in favour of the referendum immediately after the election. Indeed, I go a step further and ask, if the reasons do not stand up to examination, what are the true reasons?
I support devolution and agree with the noble Lord, Lord Sewel, on the question of thresholds. Despite that, I am bound to ask why we are having this referendum and, therefore, this Bill. The only answer I can find is that the Government believe that it is in their short-term and narrow political interest. Indeed, as the Bill has progressed, I have been increasingly feeling with great unease that the Government are playing politics with the constitution.
If we are to have a referendum, we might as well use it to ask useful questions and find out what the people really think and want. That is the purpose of Amendments Nos. 65A and 69A which put the same question, one way positively and the other way negatively. They have to be considered with an earlier amendment; namely, the one that conflated the two questions of a parliament and the powers of a parliament and the revenue raising powers. In effect, the suggested question was: do you want a parliament with powers limited to specifically Scottish affairs and with revenue powers for that purpose? To that, this amendment adds the question: do you alternatively want a Scottish parliament with plenary powers—in other words, plenary legislative powers over every matter that may affect Scotland? I know that the Government do not

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want that. But, equally, I know, because the noble Lord, Lord Hughes, told me so, that that is precisely what the Scottish National Party wants. The Committee will, I think, want to know the strength and whereabouts of that party. Until then we cannot judge how dangerous to the Union are the Government's proposals; nor can we proceed to a devolution Bill if the two issues are jammed and confused together so that an "I agree" vote embraces both the Scottish unionists, who are represented in this Chamber and whose voice carries great weight, and the Scottish National Party, which is anti-Union.
So this amendment asks two questions. Do you want the kind of parliament that the Government propose? Or do you want to go further? We shall only then know whether a truly significant force will try to drive home the wedge whose thin end is being inserted. Only then will we know the danger to the Union.
If those two questions are both answered in the negative, it is an indication that the electorate prefers the status quo. But the noble Earl, Lord Onslow, and the noble Lord, Lord Sempill, want that question put specifically. Indeed, there seems to be a great deal to be said for it. As I said, I shall not press any of my amendments to a Division. They are all probing amendments. The Committee will want to hear whether that third question should be specifically answered. I beg to move.
The Deputy Chairman of Committees (Lord Ampthill): I should remind the Committee that if this amendment is agreed to, Amendments Nos. 65B to 69 cannot be moved.
9 p.m.
Lord Sempill: With the leave of the Committee, I wonder whether my Amendment No. 74B may be brought forward to be discussed at this point? The subject matter is remarkably similar. The noble and learned Lord, Lord Simon of Glaisdale, has already, if I may say so, opened the batting on the issue.
The Earl of Onslow: I should like guidance from the Committee. The grouping is of Amendments Nos. 65A, 69A and 74. I do not know whether we should stick to that grouping or take the amendment of the noble Lord, Lord Sempill, together with it. I agree with whatever the Committee wishes to do.
Lady Saltoun of Abernethy: I am afraid that it is partly my suggestion that we should take the amendments together. It seems to me that they are concerned with exactly the same subject. It may, therefore, be for the convenience of the Committee and save a little time.
The Earl of Onslow: So perhaps we can come to Amendment No. 74, which is very simple. It says:
"I want an independent Scotland".
Lord Sempill: I want to clarify the situation while I feel so strongly about the multi-option referendum.
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Perhaps I may take a few minutes of the Committee's time to make an overall observation about the proceedings in the past three sessions. Those who are cricket fans will be aware today that the Third Test ended in a win for Australia and it was mainly due to the collapse of England's batting. I cannot help but feel that, if the noble Lords, Lord Sewel and Lord Williams of Mostyn, had been opening the batting, England would still be at the crease. Their performance over the past three sessions has been reminiscent of Geoffrey Boycott at his best.
Earl Russell: Is it England that would still be at the crease?
Lord Sempill: A well taken point. If we follow the British Lions' performance, the more of us who play under the same shirt the better. The point is well made by the noble Earl.
As I said, their performance was reminiscent of Geoffrey Boycott at his best. Questions were either blocked or casually flicked through the covers. More importantly, many were not played at all. I refer especially to the maiden overs bowled by the noble Lord, Lord Elis-Thomas—who unfortunately had to go back to Cardiff—in which he addressed preferential voting. I do not believe that his balls were well played and I now wish to try my spin against the Committee.
This spin comes in the form of the multi-option referendum. I was remarkably unsuccessful in tempting either noble Lords in the Second Reading, so I beg the Committee's patience while I try again. In the summation of the noble Lord, Lord Williams of Mostyn, in the Second Reading debate he said that the independence question had been so completely rejected at the election that it would be fatuous to include it in a referendum. But I believe that most of us are aware that if we had a multi-option referendum, between 25 and 30 per cent. of Scots would be likely to vote "Yes" to an independence option. That is a significant number even to those of us with the most basic mathematics.
The noble Lord, Lord Sewel, in opening the debate on the same day, said that the Government seek a broadly-based consensus for change. I have no disagreement with that. He said that the aim is to receive a population-based mandate for the proposals—I still have no disagreement—but then he added the word, "and", to test the settled will of the people of Scotland and Wales. I do not believe that the current referendum does that.
As Mr. Ancrum pointed out in another place, there is a dichotomy in the first question. It is right that a substantial amount of Scots will vote "Yes", but for two different reasons. Some will vote "Yes" to buttress the Union and others will vote "Yes" to break up the Union. He said,
"There are thus two completely different and opposite reasons for voting for the same option. That is a dangerous basis on which to say that there is a mandate to take this matter forward and then to take legislation forward".—[Official Report, Commons, 4/6/97; col. 436.]
It provides a broadly-based consensus, but does not test the settled will.

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Opinion polls consistently highlight that support for independence is higher than support for the Scottish Nationalist Party. A recent poll in the Sunday Times for Scotland showed that support for devolution and independence was equal at 35 per cent. and that the status quo was 24 per cent. That varied significantly from the electoral support for the parties associated with each of those constitutional positions and therefore suggests that, in the general election of 1st May, different factors influenced supporters of every party.
Either the election settled the constitutional issue or it did not. The Government cannot have it both ways. If they consider it necessary to hold any referendum, especially an advisory referendum which is supposed to guide future legislation, then in the interests of democracy that referendum should place all the options before the people.
The Earl of Mar and Kellie: The amendments of the noble and learned Lord, Lord Simon of Glaisdale, and the noble Earl, Lord Onslow, seem to belong to a referendum asking about the setting up of a federal union or an independent state. That is not what is expected to be on offer in the White Paper, which I expect to be a distinctly unionist measure.
The Committee were not impressed with my amendment seeking to change the word "establish" to "re-establish" in connection with the Scottish parliament. The Committee chose to believe that "re-establishment" meant the reconstitution of the independent parliament of Scotland. It was clearly established in Committee that the proposed Scottish parliament will not have any Scottish powers. We are therefore left with a new conundrum: when is a Scottish parliament not a Scottish parliament? The answer of course is when it has executive rather than sovereign powers.
I have a good deal of sympathy with the amendment of the noble Lord, Lord Sempill. The trouble, as I see it, is that more than three options are being thought about. Those include continuing the status quo, various degrees of devolution, various degrees of federal union, and an independent state. All of those should be thought of in terms of the relationship with the European Union. Clearly, this is becoming more complicated and will be beyond most citizens, with the exception of those whose hobby is constitutional variations.
Earlier, the noble and learned Lord, Lord Mackay of Drumadoon, spoke about the stance that those seeking independence would take with regard to a yes, yes vote. I presume that most of those will vote yes, yes as a stepping stone. Perhaps the fundamentalists will not. After all, it is their dissatisfaction with the status quo which causes them to come up with independence as an answer in the same way as it causes others to see devolution as the answer to the unsatisfactory status quo.
9.15 p.m.
The Earl of Onslow: As my amendment, which seeks to insert the words "I want an independent Scotland", is being discussed at the moment, perhaps
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I may say a few words. What this whole issue shows is how unsatisfactory it is when we start producing advisory referenda. The Government start saying, "We shall only take advice on this issue, not that". That shows how referenda can be rigged to get the answer that is required.
I find that the issue of Scotland is in a funny way more simple than what is proposed by the Government. In 1707 the Scottish people, in effect, joined an English union. They joined the club. If they do not want to be in that club, I have no difficulty with that. The Scottish people did join an English union. They joined and they subsumed their powers in the British Parliament and it became the UK Parliament. That is an historical fact. It is no use the Minister arguing because that is self-evidently what happened.
Lord Sewel: I thank the noble Earl for giving way. I think he would cause less anguish on these and some other Benches if he recognised the distinction between the United Kingdom and England.
The Earl of Onslow: That is exactly the point I am making. The English union became the United Kingdom. The English make up 87 per cent. of the United Kingdom. The whole difficulty of this is that a very small minority of the United Kingdom want special rules for themselves. The Irish solved this problem by going their own way. That is easy to accept. If the Scots do not want to be part of the United Kingdom, that is easy. We do not have to send the XX Vintrix Legion back to Hadrian's Wall. Unless this option is on offer we shall get ourselves into a terrible and ghastly muddle because without doubt the English will feel aggrieved. Therefore, it would be easier to have an independent Scotland outside the union than to have an unhappy and nationalist England.
That will arise because the West Lothian question is not answerable. If tax is put up the Scots will say that it has to be put up because the Parliament at Westminster is not giving Scotland enough. If tax goes down the English will then say, "If the Scots think they can take the tax down we shall not give them such a large subsidy". We know perfectly well that the block grant for the National Health Service is 12.5 per cent. higher per head of population in Scotland than it is in England.
All of those threats are on the horizon. All of those threats will make the union more and more difficult. Surely it would be better to point this out, have it said and have it in the open. We could do that by asking, "Do I want Scots independence?" Scots independence is much easier to understand than a devolved Scotland with all the hassle that is bound to bring. If I, with five O-levels—the same number as the Princess of Wales—can understand the hassle, surely the Government can understand it.
Earl Russell: I promise not to take up more than a little of the Committee's time, but the noble Earl is profoundly mistaken in describing what happened in 1707 as the English union. I grant his point that England is a much larger country numerically. However, the

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distinction that has to be made is between the numerical and economic balance on the one hand and the legal relationship on the other. The legal relationship is exactly like the treaty which formed the European Union. It is a relationship between sovereign and equal powers. If the noble Earl cares to read the Act of Union, which is in the Library, he will see that very clearly indeed.
The concern of the Scots has been entirely about the English difficulty in recognising that legal equality. Because they foresaw the difficulty about the inequality of size to which the noble Earl has drawn attention, from the very beginning of the 1707 negotiations they had a preference for a much more federal pattern of union. What we have discovered now is that the Scots in 1707 who wanted that were showing very good political judgment.
Lady Saltoun of Abernethy: The West Lothian question is very important: it is crucial to the working of any form of devolution. It can be resolved only in a federal context. My noble kinsman Lord Mar and Kellie mentioned the word "federal" a few minutes ago in the context of what is proposed. But what is proposed is not a federal solution. If it were I would not be nearly as unhappy as I am.
I go back to the amendments of the noble and learned Lord, Lord Simon of Glaisdale, the noble Lord, Lord Sempill and the noble Earl, Lord Onslow. As I understand it, the Scottish National Party has indicated to its members that in a referendum they would be expected to vote for devolution and for a devolved parliament, as the Government are proposing, with a view to it being a stepping stone to Scottish independence. That is what I understand.
Lord Rowallan: I am sorry to take up so much time at this hour of the night. The noble Lords, Lord Williams of Mostyn and Lord Sewel, have told us time and again that they look upon the referendum as advisory and for guidance purposes only. Yet the questions they are asking will produce very little advice and very little guidance. As a pro-devolutionist Tory I find it almost impossible to answer the two questions they ask if they do not fit anything that I want.
The amendment of the noble Lord, Lord Sempill, was of interest to me, but I do not believe that he has gone far enough. As he correctly said, one option is that there should be no change to the government of Scotland, which I believe is a non-starter because the Scottish people will simply not stand for it. A grand committee having legislative power is the second option. I agree that there should be a devolved Scottish parliament, which is the third option. I agree that we should have a federal system, the fourth option, and I agree that there should be an independent Scottish parliament, the fifth option.
Those are the five options before us. Surely, if you want to find out what the Scots or the Welsh want, they should be asked all those questions and then a White Paper should be produced which answers the questions which the Scots people have provided. It strikes me that
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we have the worst of both worlds. We are looking for advice, but we are not asking the right questions. We are producing a White Paper before we have the advice we are looking for. I cannot see that we are going to gain a great deal from the referendum. We could end up being in an even bigger muddle than we are to start with.
I hope that the Government will look seriously at this because otherwise we could get into a great muddle. As I said at Second Reading, there is no going back once we have made the decisions, even if they are wrong. This is a vital matter not just for Scotland and for Wales, but for England and Northern Ireland also because we are a "United Kingdom" and long may we be so. However, I believe that there must be some form of devolution and the only way forward that I can see is the federal system which the Liberal Democrats have proposed but which, for some reason, they are not proposing now. I am frightened that, given the questions that we are posing at the moment, we could end up with a hotchpotch that causes more and more problems and leads to the break-up of the United Kingdom. I do not believe that that is what the Government want, but that is what we could end up with if we are not careful.
Lady Saltoun of Abernethy: Before the noble Lord sits down, we do not have a White Paper; we are not producing a White Paper; we are still waiting for it.
Lord Mackie of Benshie: Perhaps I may advise the noble Lord, Lord Rowallan, and others that if you ask the way somewhere, it is better to ask a simple question such as, "Which is the way?" rather than to ask, "How many ways can I take to get there?"
The Earl of Mar and Kellie: May I ask the Government to confirm that they regard the Union as similar to a marriage which can be renegotiated?
Lord Mackay of Ardbrecknish: If the noble Lord, Lord Mackie of Benshie, wants a simple question, I invite him, as I have done on a number of occasions, to table the same amendment as was tabled by his honourable friend Mr. James Wallace in another place because that was a simple question. Indeed, there is a lot to be said for that simple question. Your Lordships know that I am not greatly in favour of referendums. I have made that clear all along. I am less in favour of pre-legislative referendums and, if I can do this by degrees, I am even less in favour of referendums which ask multiple questions where the answer to one may be entirely dependent on the result of another. That is why I would be very much in favour of considering an amendment such as that tabled in another place by Mr. Wallace. Such an amendment could coalesce the two questions into one question asking the Scots whether they agreed or disagreed with a tax-raising Parliament for Scotland. I am paraphrasing, but the honourable Member for Orkney & Shetland felt strongly

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enough to put the matter to a vote. Obviously, the Liberal Democrats in this House are not intending to table such an amendment. They are going to leave it—
Lord Mackie of Benshie: My honourable friend tabled his amendment, got his answer but then did not labour the point, as would some Members of this House.
Lord Mackay of Ardbrecknish: Ah! The noble Lord, Lord Mackie, being a countryman, should know that you have to keep at these issues if you want to win in the end. It is a little like fishing, as his noble friend Lord Steel, who is sitting beside him, will tell him. There is no point in presenting the fly to the fish only once; you must keep on presenting it to the fish or else you will never succeed.
We are being invited to look not at one question, but at three options. I hear what my noble friend Lord Rowallan says about there being more than three options, but one needs to be careful about how one expands this. I believe that there are three principal options.
I hope that the noble and learned Lord, Lord Simon of Glaisdale, does not mind if I say that I think that the amendment tabled by the noble Lord, Lord Sempill, better encapsulates the issue than either his amendment or that tabled by my noble friend Lord Onslow because it gives a three-way option.
Lord Simon of Glaisdale: They are not incompatible. On the contrary, what the noble Lord, Lord Sempill, has done is to express what was implied by my two amendments.
Lord Mackay of Ardbrecknish: I agree absolutely with the noble and learned Lord but, as far as the ballot paper is concerned, if we are to go down the road which the noble and learned Lord, Lord Simon, invites us to tread, we would be better to present a three-way option—a little like that proposed by the noble Lord, Lord Sempill—to the Scottish people on 4th September or whenever the referendum is to be. We could even tighten it a little by adding to the middle question the words, "I agree that there should be a devolved Parliament along the lines of the White Paper" although I admit that that may be a previous argument.
I do not want at this time of night to have some sport about last year's Labour Party pantomime. I had my sport at Second Reading and I do not think that the joke will improve any at the second time of telling.
Noble Lords: Hear, hear!
Lord Mackay of Ardbrecknish: I am pleased to hear that your Lordships' agree with that proposition.
Lord Thomas of Gresford: Perhaps the noble Lord would move a little down the pool.
9.30 p.m.
Lord Mackay of Ardbrecknish: I am tempted to do that, but the tail of the pool is always a place where it is worth pausing for a little while. One never knows whether one might find a resting fish—or a Minister.
We are all aware of the confusion of the party opposite last year on this question. It has put itself into a position where it must ask these two questions in Scotland and one in Wales. Interestingly enough, five years ago it said that there should be a three-way referendum. I pointed out at Second Reading that Donald Dewar, the Secretary of State for Scotland, in addressing the Scottish Trades Union Congress in Dundee in 1992, said that support for such a three-way referendum should be shouted from the rooftops. He was reported in the Daily Telegraph of 13th April to have said that the party's 49 Scottish MPs would campaign for a multi-option referendum on the country's political future. Scotland United, which was formed in 1992, certainly made that very clear. It said that one of the big problems with the 1979 referendum was the absence from the ballot paper of the independence option, which meant that a significant section of the Scottish population was denied the opportunity to vote for its preferred option.
I read with some interest the speech by Mr. John McAllion, Member of Parliament for Dundee—I can never remember whether he represents East or West—in the other place at Committee stage of this Bill when he addressed these issues that had been raised in the other place by the Leader of the Scottish National Party, Mr. Alex Salmond. Mr. McAllion made it perfectly clear that the "yes; yes" vote would depend on Scottish National Party supporters. I asked the Minister who is to reply—I did not get a reply then and it would be nice to have one now—whether the Government welcomed the support in this referendum of those people who wanted an independent Scotland; that is, people who would far rather vote for the third option in the three-way option of the noble Lord, Lord Sempill, or for the proposition put by the noble and learned Lord, Lord Simon of Glaisdale. Do they really welcome the support of the Scottish National Party which I understand will organise a campaign on the basis of "yes; yes" as the first step to independence? That simple question was not answered previously. I should like to have an answer to it now.
I accept the point made by my noble friend Lord Rowallan that the majority, but not all, of the Liberal Democrat Party and the majority of the Labour Party in Scotland, although I do not believe all of them, favour a continuation of the Union. I accept what my friends in the Labour Party tell me that they are just as good unionists as I am but they view the way forward slightly differently. But are they happy that at the end of this referendum if they have (in football terms) a result, the Scottish National Party will be able to say—and they will—"You have only got a result because we supported you. Without the support of the people who wanted independence, you would not have achieved this majority"? That would be a very unstable position for Scotland to be in following the referendum. The only way round that is to have a three-way option.

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I believe that the majority of my fellow countrymen, whether or not they want devolution, are firmly unionist. The noble Lord, Lord Steel, the noble Lord, Lord Sewel, the Secretary of State for Scotland, whom I know well, and I agree with that absolutely. I want the referendum to isolate the people in my country—and the people in Wales if it comes to it—who want independence. I believe that that is the best way to proceed. If they are found to be more than half of the "yes; yes" potential vote I fear that my country may move towards independence, but I would rather have that than huge instability for the next 10 years because there was no proper answer to the settled will of the Scottish people. I believe that there is a compelling argument to try to ensure that the very small minority of my fellow countrymen, as I believe they are, who want to break apart from England and destroy the 300-year-old Union are isolated and shown to be the minority that they are. If they are now shown to be the minority that they are, then inevitably the chorus in a couple of years' time will be, "You only got this assembly because the majority who voted yes wanted independence".
I do not have to tell the noble Lord, Lord Sewel, that some people in the Labour Party in Scotland are probably more in that category than not. It is a small minority, but they are there. Every poll shows it. There is a small minority in the Labour Party who would prefer independence. In fact, the 1992 group that I mentioned previously got pretty close to it in Scotland United, but those people wanted it to be clear that there was a proper three-way option.
There is a good argument for a three-way option. The noble Lord, Lord Sewel, will have to address these questions. Do the Government welcome the support of the SNP in their "Yes, yes" campaign as a first step to Scottish independence? Do they really want the settled will of the Scottish people? If they do, should they not be asking something along the lines proposed by the noble Lord, Lord Sempill? Otherwise how will we all deal with the situation some months or years ahead when the SNP says that we have only had this as the first step to independence, and that is why people voted "Yes, yes" in the referendum—if, in fact, they do.
I am not in favour of having a referendum. I am firmly in the Unionist camp. Everyone knows that. Having read the speech of Donald Dewar, the shadow Secretary of State in 1992, saying that he backed a multi-option referendum, I wonder why the Labour Party, now the Government, has changed. If it was good enough in 1992, surely it is good enough now. I should be a great deal happier if I knew that I was going to be campaigning on a referendum which would settle the issue and show which of the three propositions had the biggest support in Scotland. Frankly, I doubt whether any has a majority if we are talking about over 50 per cent. Of course that is what worries the Government.
I should like to know on 5th September how many of my fellow Scots want to carry on in the Union largely as it is constituted, with one Parliament; how many want to go down the devolutionary road with tax raising powers; and how many want to have a divorce settlement, as the noble Earl, Lord Mar and Kellie, said, and end the Union. I would rather look forward to my early old age and my
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later old age knowing that this matter is settled once and for all. I have a great deal of sympathy with the amendments. I look forward to hearing the Government's answer.
Lord Sewel: We all know that this group of amendments seeks to put the independence option on the ballot paper. It is dressed up in slightly different words in the various amendments but, in essence, that is what the grouping is all about. The simple, fundamental point is that independence for Scotland and Wales is not Her Majesty's Government's policy. The referendum is about testing support for the Government's policy on devolution—no more, no less. It is not an opinion poll.
Let us again go over the facts. All government spokesmen have made it abundantly clear that government policy is devolution within the Union. That is the road down which we are going. That is the policy we feel confident in putting to the people of Scotland. We have no confidence in putting the option of independence to the people of Scotland. It would be a misguided policy. It would be irresponsible to have the question of independence on a ballot paper—a ballot paper which would be structured in the context of the debate on devolution. Independence would just be something tagged on at the end. That is not a sane and responsible way of tackling the problem.
As we have made clear, our position is that it is devolution within the Union. That is the way we shall go and that is the proposal that we shall put before the people. We will put our proposals to the people of Scotland on the basis of them being spelt out in the White Paper, which we all know will be published well ahead of the referendum. We do not see the referendum as being about holding an opinion poll; it is about seeking endorsement of a specific policy.
Holding an opinion poll will tell us nothing that we do not know already. We know exactly the views of the people of Scotland on independence. They spoke most recently in the general election; the independence option was rejected and the devolution option was supported. In the run up to that election, the leading spokesmen of the party opposite made the point that we as an opposition were somehow frightened to put our proposals on devolution in front of the Scottish people because, as the then Secretary of State for Scotland claimed, we feared that we did not have the support of the people. The referendum is about nailing the argument that the people of Scotland do not support the policy of devolution.
It would be absolutely clear what advice and guidance the Government would receive if, as I expect, the outcome of the referendum is, "Yes, yes". The advice and guidance is simple; the people of Scotland want the scheme and they will get the scheme that we propose—
Lord Mackay of Ardbrecknish: I do not speak for the Scottish National Party, but what advice does the noble Lord give to a member who wants independence?
Lord Sewel: It is not my job to give advice to members of another party. It is up to members of all political parties to see our proposals and decide whether they wish to support them. There will be some members of the

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Conservative Party who support them—that is, some recently departed members and perhaps more—and there may be some members of my party who will reject them.
Lord Mackay of Ardbrecknish: I am grateful. I shall not ask the noble Lord what his advice to Conservatives would be because he has already given it. However, he is unwilling to give it to the Scottish Nationalists. Is he therefore advising Scottish Nationalists to vote, "Yes, yes"?
Lord Sewel: I am advising the electorate of Scotland to read the White Paper. If it contains a set of proposals which they can support they should vote for it, whether they belong to the Labour Party, the Conservative Party, the Liberal Democratic Party or the Scottish National Party. I shall certainly not say to a member of any party, "Don't vote yes in the referendum if you happen to belong to a particular party". It is up to everyone to reach a judgment on the merits of the case laid out in the White Paper. When, on that basis, the people of Scotland have decided, we will have the advice and guidance that we seek. We will have a clear endorsement from the people of Scotland for the proposals that we are advocating. We are not advocating independence. We are not having independence on the ballot paper because the people of Scotland have spoken already on the issue of independence and have rejected it decisively.
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The Earl of Onslow: If they have rejected it decisively, why cannot it be on the ballot paper? This matter is terribly important. The Government are proposing a limited choice on a constitutional issue. It is a choice which has terrible downsides to it which the Government are determined not to recognise. Therefore, the people should be asked also on the ballot paper whether they want independence. Of course we shall not press this matter to a vote but I do not understand why the Government cannot take this point.
Lord Rowallan: I accept totally what has been said about the last election. At that time, we discovered how many votes the Labour Party, the SNP, the Conservative Party and the Scottish Liberals received. But we did not discover from that how many people within each of those parties voted for them for reasons other than devolution and how many voted for them because of the devolution proposal. That is the difference and that is why we need to have those answers.
Lord Sewel: That is exactly why we are having a referendum—to deal with that argument about the extent of support for devolution. We are not having independence on the ballot paper because that is not government policy. The reason for the referendum is to test popular support for the Government's policy.
Baroness Carnegy of Lour: I do not wish to prolong this discussion but this issue is extremely important. It may be that the people of Scotland vote "Yes" in the referendum and it is known that a majority has been obtained only because of the votes of those who wish to
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use a Scottish parliament in order to break up the Union. Are the Government happy that they may achieve a majority through an SNP vote?
Lord Sewel: I am not a great advocate of psychological counselling so I shall not go down the path of looking into the minds, motives and inner workings of whether people have voted "yes" because they wanted independence or not. It is a very simple proposition: do you or do you not agree with the proposals contained in the White Paper? Nothing could be simpler.
Lord Mackay of Ardbrecknish: The Minister has dug himself into a hole which is even deeper than the one into which I might have been able to dig him if I had been trying. I have read the Scottish press over the past few weeks. The Labour Party has been extremely keen to try to recruit the Scottish National Party to this particular cause and it has even been keen to try to recruit the Conservative Party to it. It is almost as though it does not matter what you think. It is now the conventional wisdom; the establishment has decreed it; and forget about democracy—we should all be on the same side. It seems a bit daft to hold a referendum and to try to get everybody on the same side so that there is no opposition.
But be that as it may, it is definitely true that the Labour Party has been attempting either directly or through its front organisation—the Constitutional Convention—to persuade the Scottish National Party to join in the campaign. I do not blame the Labour Party for that at all. But the fact is that the noble Lord, Lord Sewel, seemed to be badly briefed by the Labour Party—and I am sure that it is not the government machine because that takes no part in such matters—about what it has been trying to do over the past many weeks. It has been trying to recruit the Scottish National Party to the "Yes, yes" campaign. I have no argument with that and it can do that if it likes. But you cannot differentiate between those people who vote "Yes, yes" and who are firmly Unionist, like the noble Lord, Lord Sewel, and the Secretary of State for Scotland, Mr. Dewar, and those who vote "Yes, yes" like Mr. Alex Salmond—to pluck a name out of the air—who wish to use this as the way to independence and who do not believe in devolution for a single second.
Lord Mackie of Benshie: I have seen a couple of polls which show that when the Scottish National Party was asked whether it preferred devolution or independence, about 30 per cent. voted for devolution.
Lord Mackay of Ardbrecknish: That is right. So why not let them vote? The Scottish National Party voting by intention on the referendum question is very significantly in favour of the "Yeses". In fact, 94 per cent. of SNP voters will vote "Yes". That is bigger than any other party's vote for the "Yes". So the bulk of SNP voters will quite clearly vote "Yes". They will not do so for devolution; they will do so for independence. Interestingly enough, only 59 per cent. of Liberal Democrats will vote "Yes" and 34 per cent. of them will actually vote "No". Does that not make the representation in this Chamber a little skewed when one considers the speeches that one has heard? Even the

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Labour Party has 79 per cent. voting "Yes" and 16 per cent. voting "No". Just before any Member of the Committee jumps up to quote it, 26 per cent. of the Conservative vote will vote "Yes" and 64 per cent. will vote "No". So there is some cross-party disagreement when it comes to the question.
I have to say that the Liberal Democrats are the most split of them all. When it comes to the second question— namely, the tax-raising question—the poor old Liberal Democrats are in their normal position of facing both ways. According to the ICM poll of The Scotsman, 46 per cent. will vote in favour of a tax-raising assembly and 46 will vote against a tax-raising assembly. That seems to be a perfect result for the Liberal Democrat Party. However, that is a little aside into which they tempted me, although with not too much trouble.
I return now to the main point; namely, that we have this amazing disagreement. The noble Lord, Lord Sewel, seems to be totally unprepared to give Scottish nationals any advice on how they should vote, yet everyone who reads the Scottish press knows that both the Labour Party and its front organisation the Scottish Constitutional Convention, are very keen to recruit the SNP to the "Yes, yes" campaign.
The second point to which I wish to return is the dismissive way in which the noble Lord, Lord Sewel, dealt with the question of a three-way referendum. I should have taken note of what he said, but I believe he more or less told us that no one in his right mind could ever propose a three-way referendum. I have to tell him that I have with me a report by Mr. Ian Bruce, a correspondent of the Glasgow Herald, dated 23rd April 1992 reporting on the Scottish Trades Union Congress in Perth. In that report, someone called Donald Dewar—and it may well be a different Donald Dewar for all I know—was actually advocating a "multi-option referendum". Indeed, he said quite clearly that he wanted such a referendum. I do not have to answer any of the questions; indeed, I now find myself in a new position. The question is quite simple: was Donald Dewar wrong then or is he wrong now?
Lord Sewel: Very simply, the advice that I would give to the people of Scotland, no matter which party they belong to—and, indeed, even if they do not belong to any party—and regardless of whether or not they have voted before, is to vote "Yes, yes" in the referendum. That is the advice I would give them because I have confidence in the scheme that we will be proposing to the people of Scotland. As I said, it does not matter which party they come from. I would give the same advice to the noble Lord, Lord Mackay, although I do not believe that he will take it on this occasion. I should add that I do not have to give such advice to my right honourable friend the Secretary of State for Scotland.
There is something that I would really like to know, although I do not suppose that I will get an answer. If the independence option was put on the ballot paper, as a
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matter of pure speculation is it expected that the argument about independence should be contained within the White Paper?
Lord Sempill: As I spoke to one of the amendments, the answer to my noble friend Lord Sewel is, no. As the noble Lord, Lord Mackay pointed out, it would make sense for us to put in a second option that it is a devolved assembly as laid down by Her Majesty's Government. I believe that that gets round the problem.
Perhaps I may take the attention of my noble friend the Minister for a moment longer to ask a further question. One of the advantages of a multi-option referendum is that the Government have obviously been given a substantial mandate by the people of Scotland to give the Scots a form of government where they can have larger control over their own affairs. It must be of some interest to the Government therefore to understand exactly where the Scots are coming from. If, in a multi-option referendum, nearly 40 per cent. vote for some form of independence, would that not influence the legislation that is likely to be produced in a devolution Bill?
Lord Thomas of Gresford: I hope I may venture into the Scottish scene from a Welsh perspective. It seems to me that the official Opposition regard voters as members of armies who are in some way controlled or owned by political leaders. They talk about voters as Scottish nationalists, Labour supporters and so on, as if they were always within one grouping and always wore the same tabard. What we are talking about are people in Scotland and people in Wales. In Wales the nationalists achieved rather less than 10 per cent. of the vote in the previous election. That was of course less than the Liberal Democrats, and even less than the Conservatives. The vote in Scotland for independence, as expressed in that way, was small. However, one does not regard those who vote for the Welsh nationalists as seeking independence 100 per cent.; there are all sorts of views expressed within that party.
In this referendum one must be as inclusive as possible and draw together as many people as possible behind a "Yes" vote. That is what we are seeking to do in Wales. We do not care how people have voted in the past—even if they have voted for the Conservatives and have now seen the light—so long as they support the principle that the status quo cannot remain and that there must be change. We do not seek the distant scene; one step is enough for us.
Lord Simon of Glaisdale: I am most grateful to all who have taken part in the debate. I say with respect that I found the speech of the noble Lord, Lord Mackay, most effective and indeed most moving. I entirely agree that there are three main options ahead: status quo, devolution within the Union, and devolution outside the Union. The only difference between my amendment and my position and that of the noble Earl, Lord Onslow, and my noble friend Lord Sempill, is whether the third question should be expressed or implied. I am inclined to think that they are right and that it should be expressed. Having said that, naturally I shall want to consider the speech of the noble Lord, Lord Rowallan. Perhaps there are more options which ought to be put before the electorate.

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We are going through a severe phase of gesture politics and the gestures are almost always to distract attention from a fudge. The matters we are discussing at the moment embody two of the biggest fudges—the two questions that are being put—because what the Government want is to have a vote approaching the size of that which Hitler achieved in his plebiscite. Therefore they ask two questions that will attract the vote both of the devolutionists who are Unionists and the devolutionists who are anti-Unionist.
The first question is, "Do you want a Scottish parliament?". The answer of the government supporters will be, "Yes, we want a Scottish parliament on the lines that are defined", or, if the noble Lord prefers it, on the lines that the Government will put forward in their White Paper. But they will also receive the support of the Scottish nationalists, who will say, "Yes, we want a parliament but a parliament with plenary powers over all matters affecting Scotland". It is a fudge in order to get a maximum figure in the plebiscite.
The second question is also a fudge: "Do you want to vary taxation?". The Government's case is, "Yes, we want powers to vary the basic rate of income tax", although I think they are having second thoughts about the phrase "basic rate". At any rate, it is income tax. But that is not the way that the Scottish nationalists will interpret it. They say: "Yes, we want to vary customs and excise duties and VAT; we want a customs barrier on the Border". That is the great danger.
The noble Lord, Lord Sewel, who has answered this debate, as so many, with enormous skill, says: "We are having a referendum"—I nearly said "plebiscite" because that is really what it is—"because the Conservatives opposed devolution at the general election and we want to show that they were wrong. We do not find it necessary to put the question of independence on the ballot paper because that was rejected at the general election by the electorate in Scotland". Yet in the very same breath he says: "But so were the Conservatives".
When we find an extremely able Minister arguing in that way we must be filled with suspicion as to the real motive. The real motive is for political advantage, to obtain the maximum government vote on both questions.
However, I said that I would not pursue any of my amendments to a division and I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 65B:
Page 4, line 18, leave out ("AGREE THAT") and insert ("WANT").
The noble Lord said: I shall be very brief. In the 1979 referendum the question was, "Do you want the provisions of the Scotland Act 1978 to be put into effect?". It is interesting that the questions in this referendum will be, "Do you agree?". I wonder if there is any significant difference. I can see that some people may want the proposition; I can see that others may have been bullied by all the pressure in the media and elsewhere into feeling that they must agree to it. I was going to use this opportunity to point out the ICM poll for The Scotsman
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and the interesting dilemma that the Liberal Democrats were in, but I have already had that opportunity so I can be even briefer than I had intended to be.
The Government ought to explain why they have changed the word from "want", as it was in 1979, to "agree". If they say that it is because of the difference between a pre-legislative referendum and a post-legislative referendum, I must say to them that I would prefer the post-legislative referendum and the simple question "Do you want?". That seems to me a much more active question than "Do you agree to?", which is the kind of thing that a salesman asks you when he tries to sell you something that you do not really want but perhaps you do not really not want; whereas to ask, "Do you want this?" is a much more positive statement, which, I suspect, would probably get a slightly different answer than the softer question, "Do you agree?". Maybe I am too suspicious about the Government's use of terminology. However, perhaps the noble Lord, Lord Sewel, can explain the change. I beg to move.
Lord Sewel: I wonder whether a post-legislative referendum would have the independence option as well—but that is another matter. As indicated by the noble Lord, Lord Mackay, the amendment would change the wording from "I agree" to "I want". I have to admit that we puzzled and worried over this point for some time. We wondered what it was all about. The noble Lord's intentions are usually admirably clear, even though I rarely find myself agreeing with them. Clarity is one of his great strengths. On this occasion, we were completely bemused by the argument of why "agree" should go out and "want" should come in.
I take the amendment at face value and assume that the noble Lord seeks quite legitimately to probe the reasoning behind the way in which the ballot papers are constructed. I feel that that is what is behind the amendment. Therefore, it may help if I explain why we settled on the wording on the ballot paper.
Let me say at the outset that this is an important point. The wording of all questions is very important. I spent well over 20 years of my life devising opinion questionnaires on all kinds of social and political issues. I am very well aware of how changing a few words can easily help, if not determine, the outcome. It helps to determine the outcome. It is important to take expert advice on the wording of questions, and we did so. We took it from the returning officers, the Association of Electoral Administrators, specifically on how to make the questions fair, clear and unambiguous. I am pleased to say that the general reaction to the ballot papers suggests that we have it right, although I accept that, at the end of the day, one has to reach one's own judgment on these matters.
We firmly believe our judgment to be right. All reputable polling firms devising opinion questions adopt the construction "I agree" and not "I want" because it has been found over the years that "I agree" is a much better way of getting the underlying opinion construct. We took advice, knowing this to be an important matter, and we have the support of independent practitioners that our proposal is the right way forward.

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As I said when we debated earlier the tax varying question, it is important that the proposition is put at the level of principle. I accept that the amendment is consistent with that notion. I also made clear that it is the combination of the proposition on the ballot paper and the details set out in the White Paper which together produce the clarity that we seek. That is a very important factor because all the questions on the ballot paper are phrased in terms of agreeing to the Government's proposals contained in the White Papers. That would be lost under the rather crude "I want" construction. It would not refer back and embed the answer in the Government's proposals in the White Paper. On the basis of that clarification, I hope the noble Lord will feel able to withdraw his amendment.
Lord Mackay of Ardbrecknish: I think I am grateful for that explanation. I am not sure whether it convinced me of the case for changing the wording from the 1979 referendum. But there we are. The noble Lord, Lord Sewel, tried to explain it. In fact, I suspect that the people who occasionally send me or my wife a form with about 60 questions on various issues, in order to try to ascertain my opinions, and who usually offer me a free holiday in some draw which chances are nobody will ever win, frame the answers in exactly that way in order to attempt to get you to agree with the proposition they are putting. It is a proposition which can vary all the way from things like smoking to what kind of whisky one drinks and all sorts of other things.
Lord Sewel: We all accept that the decision is a vitally important one for the people of Scotland, and we all make important decisions in our lives. Can I ask the noble Lord what words he used when he got married? Were they, "I agree" or "I want"?
Lord Mackay of Ardbrecknish: I said, "Yes, of course dear"! That was a good try by the noble Lord, Lord Sewel, and is the best argument he has advanced for the word "agree" rather than "want".
Leaving that aside, the practitioners he consulted are no doubt the same practitioners that send out those copious forms. I was about to say that I accept his explanation, but I do not. I understand his explanation; I do not accept it. I find it interesting that the 1979 referendum, which was quite clearly "want"—a much firmer word—has now been superseded by "agree". That shows the wobbliness of the Labour Party in relation to putting this question to a referendum for the second time.
With that little bit of interesting discussion, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 66 to 74 not moved.]
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 74A:
Page 4, line 22, at end insert—
("PART III FORM OF THIRD BALLOT PAPER
Parliament has decided to consult the people in Scotland on the Government's proposals for a Scottish Parliament:

Put a cross (X) in the appropriate box

I AGREE THAT, IF THERE IS A SCOTTISH PARLIAMENT, MEMBERS OF PARLIAMENT AT WESTMINSTER FOR SCOTTISH CONSTITUENCIES SHOULD TAKE NO PART THERE IN PROCEEDINGS WHICH DO NOT EXTEND TO SCOTLAND

OR

I DO NOT AGREE THAT, IF THERE IS A SCOTTISH PARLIAMENT, MEMBERS OF PARLIAMENT AT WESTMINSTER FOR SCOTTISH CONSTITUENCIES SHOULD TAKE NO PART THERE IN PROCEEDINGS WHICH DO NOT EXTEND TO SCOTLAND

The noble and learned Lord said: This amendment, together with Amendment No. 77A, invites the people of Scotland and Wales particularly to express their views on the important West Lothian question. That phrase was invented by an extremely able and independent-minded Scottish Member of the other place. He said, "How can I possibly justify refusing to let an English Parliament participate in matters that are purely Scottish when I assert my right as a Scottish Member of Parliament at Westminster to participate in matters that are purely English?" It is an extremely difficult question to answer; as a devolutionist and as an opponent of the threshold, I find it impossible.
The question that is proposed to be included in the ballot paper is at the bottom of page 6 of the Marshalled List and reads:
"I agree that, if there is a Scottish parliament, Members of Parliament at Westminster for Scottish constituencies should take no part there in proceedings which do not extend to Scotland".
The second amendment puts that question the other way round, in the negative.
I hope the Minister will not say, "That is not our policy". Whether or not it is—I suspect that it is not—I am not asking him to say tonight because I fear that I should get the "South Sea Bubble" answer again. All I am asking is for an exercise in democratic participation and popular consent, and that it should be the people of Scotland who answer that question. I do not know how they would answer it but I do know that it will be extremely important to our final deliberations to know what they think. I beg to move.
10.15 p.m.
The Earl of Mar and Kellie: I approve of this proposed referendum question. For me it supplies the best and most satisfactory answer to the West Lothian

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question. The alternative, which would be reducing Scottish representation at Westminster, would be far less satisfactory. Although it would have been drawn from experience of the Government of Ireland Act 1920, a reduction would not be an improvement of the British union. Scotland would need to retain its influence over the powers reserved to Westminster. Somehow I do not think that that would be accepted. However, it would be a better second question— disposing of the question of taxation powers.
Lord Rowallan: I like the amendment proposed by the noble and learned Lord, Lord Simon of Glaisdale, except that I think it is addressed to the wrong people. The Scots will not be affected by it one way or the other. If they can get representation in Scotland and down here in the Mother of Parliaments, they will think that this is wonderful. The question should be addressed to the people of England, who, under the system being proposed, will, when and if we have a Scottish parliament and when and if we have a Welsh assembly, be the only people not to have one. They will be desperately under-represented. That is where the independence problem will arise. That is why the federal system is the only way out.
Everyone must have the same. Each country should have either nothing or a parliament. Everyone will then be quite happy. What we have at the moment is a hotch-potch. A parliament with certain powers in Ireland, a parliament with tax-raising powers in Scotland, a talking shop or a parish council in Wales—and in England, nothing.
Lord Lucas: Perhaps I may be allowed to cast one last fly over the Dispatch Box opposite. It is late at night and we have not had much success so far. However, I suspect that one of the Ministers lurking behind it may be hungry and may be tempted to have at least a swirl at it.
I wonder whether the Minister can enlighten me as to whether this question also affects Wales. It very much depends on how the Government are thinking as to whether the powers they intend to grant the new assembly amount to depriving MPs at Westminster of control over substantial parts of legislation, thereby effectively making it Welsh legislation, or whether things will be structured in such a way that, as they would be at the moment with the continuation of the Welsh Office, the ultimate authority and responsibility continues to rest with the Westminster Parliament. Can the noble Lord enlighten me on that point?
Lady Saltoun of Abernethy: What the noble Lord, Lord Rowallan, has just said is absolutely right. This is a far wider question than just a question of whether Scottish MPs should vote on English domestic matters. I support him on that point.
Lord Mackay of Ardbrecknish: In the three days of Committee I have resisted moving ahead of ourselves, so to speak, into a devolution Bill (if that is what we eventually end up with) and have kept pretty tightly to discussing the referendum. The noble
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Lord, Lord Sewel, would agree with that. However, I have been tempted slightly wider by the amendment. As it is one of the last amendments, I do not see the point of resisting temptation for ever. I might get the reputation of being very boring if I did that.
This is a difficult question and it is one to which we shall return if and when we come to the devolution Bill. I refer to what Scottish Members of Parliament will do here at Westminster. One can argue that perhaps we ought to have slightly fewer of them. I have no doubt that we shall go into that when we come to the Bill. I have a pretty firm view that in the Union Scotland ought to have more MPs than England pro rata, but I am not entirely convinced that there should be quite as many more as we have now. There could have been a good argument in favour of Scotland having many more when travel was not what it is today. People usually pray in aid the scattered nature of much of Scotland, but a closer look will show that, apart from two or three constituencies, the small constituencies in Scotland are in the City of Glasgow. As I now live there, I have to tell the Committee that getting from Glasgow to Westminster is extremely easy. I imagine that it is a good deal easier than it is getting to Westminster from many constituencies in England. Therefore, I believe that these arguments are out of date. When devolution arrives there is no doubt that the number and role of the Scottish Members will have to be questioned.
Perhaps I may explain the West Lothian question like this. Today we had a Statement on education. I sat open-mouthed and wide-eyed. Members of the Committee who followed the Committee stage today will realise that in a former life I taught mathematics; that was about 20 years ago. Then I had an uphill battle—indeed, a last-ditch struggle—to prevent mixed ability classes. That was considered the thing to do. The whole left-wing progressive education establishment was ranged against me. I had to concede the principle of mixed ability classes for the first year. I fought a rear-guard action and stopped it going any further in the school where I taught. Thereafter, I believe, mixed ability classes increased up the school and across subjects. It always seemed to me to be a fairly daft idea and I am amazed to learn now that the party opposite believes that it was a daft idea. Frankly, some penitence would come nicely from the party opposite and the left-wing education establishment, every training college, every lecturer and inspector.
A noble Lord: What has all this to do with this amendment?
Lord Mackay of Ardbrecknish: I shall be coming to that in a moment.
Let us consider this proposition. Let us assume for a minute that in Scotland the power of the educational institutes of Scotland and the progressive establishment were still to be considerable after devolution and that in Scotland they were not going to make this policy change, but were to stick resolutely to mixed ability classes. Here, however, the

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Government decided that for England and Wales there should be change. What role does a Scottish Member of Parliament take? Does he agree to a change, which in his view is detrimental to pupils, otherwise it would be happening in Scotland? Does he just go along with the fact that he is down here, voting on an English matter, and therefore he should go along with the majority of English Members? Or does he vote with his convictions and against the change being proposed in England, keeping mixed ability classes in England?
That is the West Lothian question. I thought today when listening to the noble Baroness, Lady Blackstone, that this education point puts the matter in stark reality. The noble and learned Lord, Lord Simon of Glaisdale, makes the very valid point that we ought to know. If we are going to know where we are with tax raising powers— the Government have left themselves open on this matter—after the referendum, why should we not know where we are with the West Lothian question? Indeed, why should we not know about a lot of other matters after the referendum?
The West Lothian question is very important. It is well encapsulated in education, health and so on. Scottish Members of Parliament could come to Westminster and influence decisions affecting England which they would not be able to influence in Scotland. Often the West Lothian question is portrayed wrongly. It is looked at from the point of view of English Members. It is nothing to do with them but with Scottish Members and, if it comes to it, Welsh Members. It affects more particularly Scottish Members because the Scottish parliament will have much more power than the Welsh assembly. Will those Scottish Members be able to take decisions for English people that they cannot take for their own constituents? If so, the responsibility link between a Member and his constituency will be broken.
We shall return to this when we get the devolution Bill—if it comes to a Bill—but, for the moment, I think that the noble and learned Lord, Lord Simon of Glaisdale, has posed an interesting and valid question. The Government ought to consider taking it on board and posing to the Scottish people the question of what they, the Scottish people, want to do about their MPs' continuing role at Westminster.
Lord Desai: I find this doctrine rather strange. I had always thought that, irrespective of where MPs come from, they will make up their minds on an issue according to its merits. Therefore, Welsh and Scottish MPs can speak on English topics while English MPs can speak on Welsh or Scottish topics. I am sure that the noble Lord will agree with the Burkean aphorism that an MP is there to give his or her views on any question. However, that is no longer the case. We now have regional representatives. Perhaps I should say that we have "national" representatives in view of the sensitivities of the noble Earl, Lord Mar and Kellie, with regard to calling Scotland a "region". The noble Earl gets quite excited about that. I can see that if there were so many MPs from Scotland that they could overwhelm or out-vote the English MPs
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on an English topic, that might be cause for a sleepless night or two. We shall return again and again to that question.
I have always felt that the West Lothian question is put in a very peculiar way. It is as if Scottish MPs could have nothing to say about England just because they do not represent an English constituency. English MPs have had a lot to say about Scottish matters for a long time. In some matters I believe that we should still think of this United Kingdom as a single entity about which, wherever they come from, people have a right to speak on different matters.
To follow the example given by the noble Lord, Lord Mackay of Ardbrecknish, perhaps I may say that had the noble Lord been a Scottish MP, he may well have felt oppressed by fellow Scottish MPs in Scotland, given his views towards mixed ability teaching, but he could have come down here to vote against it. Wouldn't that have been nice for him? We should think about this matter not in terms of regional representation, but in terms of what we are asking our MPs to do. Is it not their job to speak about matters in general? If mere numbers were all that was important and if English MPs felt oppressed because Scottish MPs were against them, could we not consider having qualified majority voting? Those days may well come.
Lord Mackay of Ardbrecknish: As this is a Committee stage, perhaps I may join in some discussion of this point with the noble Lord, Lord Desai, in order to clarify the position for the Minister who will have to reply. The noble Lord, Lord Desai, and I normally cross swords on weightier matters, if I may put it that way, relating to economics. I am only sorry that in the past few days the Government have not given us the opportunity to discuss the Budget and, among other matters, the penal taxation policies that are being imposed on important Scottish and English pension funds. However, I gather that towards the end of the month we shall have an opportunity to discuss such matters when the Second Reading of the Finance Bill will be brought to your Lordships' House. I am sure that the noble Lord and I are greatly looking forward to that. Certainly, I am looking forward to it because I want to know whether the noble Lord will manage to support his own Government. The noble Lord is what I might call a radical and free thinker. He is not usually bound by the Whips or by anybody else.
The noble Lord rightly said that we should continue to be one United Kingdom. I absolutely and wholeheartedly agree. That is why I think that all the propositions that are before us are fundamentally flawed. I believe that one United Kingdom should be governed from one Parliament. However, if it is not, the question really is: does a Scottish Member of Parliament fall within the Burkean view that a Member's constituents are owed his judgment, if I recall it correctly? The answer is: yes, if at the general election his judgment will make any difference to his constituents. However, if the kind of scenario that is painted in this amendment comes about and there is devolution along the lines proposed that MP will not have any responsibility to his constituents. Therefore, his judgment will be of no interest to them, because in the case to which I referred he will have no say

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in the United Kingdom Parliament in mixed ability classes as far as concerns his constituents' children. That decision will have been taken by the Scottish parliament. It will have decided whether education in Scotland should continue to be run in this entirely loopy way of mixed ability or whether it should change to whole class teaching. They appear to be quite straightforward options.
10.30 p.m.
Baroness Farrington of Ribbleton: Can the noble Lord, Lord Mackay of Ardbrecknish, explain to the Committee how it is that a Member of Parliament for a Scottish constituency, for example that of the former Secretary of State, in a country where by agreement between the employers, the local authorities and teachers there is a maximum class size, can come down to Westminster and vote on proposals affecting the funding of education in England and Wales and deliberately thwart the desire of people in England and Wales to have maximum class sizes? This has occurred in the past 18 years. I believe that the Scottish term is "the red book". There has been an agreement on maximum class size. Perhaps the noble Lord can tell us a little more about why in Scotland the maximum class size is a good thing, but in England and Wales it is not.
Lord Mackay of Ardbrecknish: The only red book of which I am aware, along with the noble Lord, Lord Desai, is that which is published at the time of the Budget, except that it now seems to have changed to the white book— perhaps because the colour red has connotations for the Labour Party that it now wishes to put behind it. The point made by the noble Baroness is an interesting one. The reason why it has been perfectly reasonable in the past to do it is that the Scottish Member on issues like education, which are different north and south of the Border, has along with his English colleague had a say in education both north and south of the Border. Therefore, if Parliament decided, as it did, to impose certain class sizes in Scotland—
Baroness Farrington of Ribbleton: My understanding—perhaps the noble Lord will correct me if I am wrong—is that the English Member of Parliament has had no say. It has been a Scottish Secretary of State who has given approval to an agreement internal to Scotland.
Lord Mackay of Ardbrecknish: Up until 1st May and even today the Scottish Secretary of State holds that office by virtue of the majority in the United Kingdom Parliament where all Members are the same. Therefore, if one goes to the other place which is considering a piece of Scottish legislation at Second Read or Report stage—not Third Reading, because the other place does not have a Third Reading as we do—all Members of Parliament can vote. Therefore, the Scottish Member of Parliament can vote on English education matters and the English Member can vote on Scottish education matters. If we go down this road that will change. That is the point that I seek to make. The Scottish Member of Parliament will come down to England and will be able to vote on English matters. Let us suppose that he can vote to ensure that
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classes in England will not be mixed ability. He will have no say over such issues as far as concern his own constituents. It is that break of responsibility between a Member and his constituents that forms the West Lothian question.
Lord Monkswell: I believe that we are in danger of departing from the Bill before the Committee. The noble Lord, Lord Mackay of Ardbrecknish, makes a very interesting case about what may or may not he in the devolution proposals. We have before us a Bill to determine a very simple referendum asking the Scottish and Welsh people whether or not they want some form of devolution as yet unspecified. We have heard from the Government that there will be a White Paper to determine the form of that devolution once we have finished dealing with the Bill. People will then be able to make up their minds.
I raise two points. I take issue with the amendments tabled by the noble and learned Lord, Lord Simon of Glaisdale. To be quite honest, they are very complicated. If one reads the amendment, by and large—
Lord Simon of Glaisdale: Does not the noble Lord underestimate the intelligence and expertise of the Scottish electorate?
Lord Monkswell: I do not underestimate the intelligence and experience of the Scottish electorate, but we must recognise that within the electors there is a vast range of experience and expertise in terms of judging public affairs.
One of the difficulties with the amendments is that they prejudge what will be suggested in the White Paper. The noble Lord, Lord Mackay of Ardbrecknish, introduced the West Lothian question in a rather convoluted way. There are two plausible mechanisms for dealing with it. The first is to ensure that the people elected to the Scottish parliament are MPs for Scotland, in which case there would be no question that MPs for Scotland should not determine Scottish affairs. As representatives of UK constituencies they would be fully entitled to determine UK affairs. That is one solution to the West Lothian question.
Another solution to the West Lothian question is that the proposals put forward for Scotland and Wales (and, I believe in a different context, for Northern Ireland) should be made available also to the English regions and London. Although the noble Lord, Lord Mackay of Ardbrecknish, is an astute and capable debater in this place, I suspect that he has mislaid his direction when considering the substance of the matter before us, which is the referendum Bill.
Lord Mackay of Ardbrecknish: I am grateful to the noble Lord for that intervention. We are debating the amendment moved by the noble and learned Lord, Lord Simon of Glaisdale, on Scottish MPs. I have probably said as much as I needed to say about education and the education question posed this afternoon, at least to me, by the noble Baroness, Lady Blackstone, when she announced that mixed ability classes had been a massive mistake. I wonder whether all those people who told me

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that I was wrong and they were right, and that I should have mixed ability classes, are all crawling on their hands and knees, or whatever you do if you have to do penance for a serious educational mistake you have made in the past.
The point is still a real one, because education is one of the devolved subjects. It could cause difficulty. It will cause difficulty for Scottish MPs in a way I shall come to in just a second. It could also cause difficulty in a Parliament where, as has happened, the majority of English MPs represent one party, but that is changed by the representation from Scotland and Wales. I know that it has not happened yet. We have to look at what happens if it does.
The other point I make in conclusion is the point made by Mr. Robin Cook in 1992 when he was Shadow spokesman on health. He said that if devolution came about he, as a Scottish MP, could not be the Health Secretary in England and Wales, because he would have no responsibility for the health service in his own constituency of Livingston. That is a telling point. I wonder how many members of the Government currently who are Scottish MPs—it almost looks like a Scottish mafia—will have to make the same decision. That is why the question is so serious. I am not sure that the noble and learned Lord is right that it should be addressed in the referendum, but it most assuredly must be dealt with in any substantive Bill.
Lord Sewel: This has been an interesting and, if I may say so, finely timed debate. It takes me back to the first amendment we discussed in Committee; that the ballot paper should be limited to one sheet of paper. I am grateful that we did not lose that amendment because the questions contained in this amendment would result in ballot papers almost the length of those experienced in the United States.
Lord Simon of Glaisdale: This is my amendment. I did not vote in favour of the amendment that there should be only one piece of paper.
Lord Sewel: I appreciate the point that the noble and learned Lord makes. The length of the propositions contained in the ballot paper, which read:
"I agree that, if there is a Scottish parliament, Members of Parliament at Westminster for Scottish constituencies should take no part there in proceedings which do not extend to Scotland",
and,
"I do not agree that, if there is a Scottish parliament, Members of Parliament at Westminster for Scottish constituencies should take no part there in proceedings which do not extend to Scotland",
present a danger that we might be moving away from questions into essays. I do not know whether the electorate are supposed to vote with a cross or give a mark out of 10.
There is a serious issue, which I recognise, called the West Lothian question. I shall not go into its wider details at this stage; I shall focus purely and simply on the terms of the amendment. It is important to remember that the Parliament of the United Kingdom has firmly and historically set its face against the concept of a two-tier
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parliament; the so-called "in and out solution". It is the idea that some Members of Parliament should not vote on some matters but others should vote on all of them. That proposition has found no favour in the way in which our constitution has developed. Indeed, the precedent which exists is the period of the Stormont government when there was a devolved parliament in Stormont but Ulster MPs were fully free and able to vote on all matters coming before the House of Commons, whether or not they affected Ulster. If we went down that route it would represent a major constitutional departure from accepted practice.
Furthermore, it would create some incredible practical political problems for the management of the business of government. In such a situation we could easily see a government with a majority in the House of Commons, and therefore enjoying the confidence of the House, but being totally unable to secure their legislative programme over a large number of areas. Of course, that would be an extremely difficult matter to resolve in the longer term.
There is one other point which arises from the wording of the question. The wording is:
"should take no part there in proceedings which do not extend to Scotland".
What I ask Members of the Committee and in particular, given his background, the noble Lord, Lord Mackay of Ardbrecknish, to consider is a situation in which, for the sake of argument, and only for the sake of argument, social security were not a devolved subject. But social security would clearly be a matter which would affect Scotland. Who would vote? Would Scottish MPs vote on social security in a Westminster Parliament, despite the fact that social security had not been devolved and had been reserved to the UK Parliament? According to this amendment, they would not. I hope that in those circumstances, at this stage, the noble and learned Lord would feel able to withdraw the amendment.
10.45 p.m.
Lord Simon of Glaisdale: Again, I am grateful for the debate. I believe that I detected that it is not government policy to satisfy the West Lothian question.
It was a Scotsman who taught us that it is demeaning to ascribe to others motives less generous than one's own. But I have made it plain for some time now that in spite of my having been—and in fact still being—in favour of devolution, I have been increasingly concerned that a noble theme is being besmirched by the very lowest of an immediate political consideration. Therefore, I am bound to ask why the Government should oppose something which is so obviously as fair as the solution to the West Lothian question. The answer appears to me to be obvious. How attractive it is to have a Labour majority in the Scottish Parliament and at the same time being able to use those constituencies' votes in Westminster on purely English matters.
The noble Lord postulated social security not being devolved. If it is not devolved, it is not an exclusively Scottish matter; and quite obviously nor is it an exclusively English matter; and quite obviously Scottish MPs can participate and make their influence felt.

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And then the noble Lord said, "What about a government who have a majority in Westminster? Think of the practical difficulties". But a majority in Westminster sustains a government because it grants supply to the government and nobody has proposed that supply should be a devolved subject. So there is nothing in that.
I am not asking for a solution to the West Lothian question, although I think it has appeared this evening. I am merely asking for an exercise in democratic participation, in popular consultation. When the West Lothian question comes before us, I want to know what the Scottish people think about it and what the Welsh
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people think about it. That is all I am asking. However, as I promised not to press any amendments, I beg leave to withdraw this one.
Amendment, by leave, withdrawn.
[Amendments Nos. 74B and 74BA not moved.]
Schedule 1 agreed to.
Schedule 2 [Section 2(2).]
[Amendments Nos. 74C to 78 not moved.]
Schedule 2 agreed to.
[Amendments Nos. 79 to 83 not moved.]
In the Title:
[Amendments Nos. 84 to 90 not moved.]
House resumed: Bill reported with an amendment.
House adjourned at seven minutes before eleven o'clock.