§ 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 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
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 417 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 418 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.419
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 420 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 421 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 422 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.
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 423 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—
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. 424 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 425 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 426 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 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 427 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 428 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.429
§ 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.
§ 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 430 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 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 431 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 432 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 433 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 434 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
The noble Lord may not be a member of the Government but I do not wish to delay the Committee 435 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 436 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.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.