Scotland: Constitutional Future

Lord Davidson of Glen Clova Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord Davidson of Glen Clova]

I thank the noble and learned Lord for repeating the Statement and add my gratitude for its notice. I trust that this will be a precedent for future practice.

The Statement is welcome, clear and, up to a point, informative. It opens discussion of what for too long has been either ignored or suppressed—namely, the legality of the Scottish Government’s proposals for a referendum. It should also have the benefit of obliging the Scottish Government to engage in open discussion on this important constitutional issue. It appears already to be succeeding at least in getting the First Minister to say that he will reveal within days his constitutional plans, which people have been asking him to reveal for quite some time. There is no doubt that the referendum will take place and what we must now do in all parties is work together to ensure that it is fair, legal and commands the respect of people in Scotland.

The democratic rights of people resident in Scotland have recently been prayed in aid by the Deputy First Minister. Democratic rights throughout the UK of course rest on the rule of law. That such an important issue be dealt with in a clear and lawful manner is something that all interested in democracy have a right to expect. The legal position should surely have been clear to all for some time but this has apparently not been accepted in certain quarters. On such an issue, frank and open discussion is the lifeblood of democracy. Secrecy and obfuscation may be clever gamesmanship, but they help no one, least of all the Scottish electorate, to understand complex constitutional issues.

The Government are to be congratulated on expressing their legal understanding openly and clearly, and we wait to see whether that openness is reciprocated by the Scottish Government. What, it may be asked, is the position of the Scottish Government on the legality of the Scottish Parliament proposing a referendum? There have been curious twists and turns as to how a referendum might be likened to an opinion poll and somehow have nothing to do with the constitution. That has been recognised as obvious nonsense.

The Scottish Government have a duty to make clear their position in relation to the legality of their own referendum, opinion poll or whatever. Anything less leaves them open to accusations of dissembling and trickery. The Government have made clear the view of UK law officers on this issue. Surely we are now entitled to know the view of Scottish law officers. If there were any genuine dispute, the issue might be taken to the Supreme Court for resolution. If there is no such genuine dispute, we can all get on with discussing, in a mature and less rancorous manner, how the referendum is to be organised for the benefit of all concerned.

I have five questions for the noble and learned Lord. First, if the Scottish Government produce contrary legal advice regarding the legality of the referendum, will the Government take the issue to the Supreme Court?

Secondly, Her Majesty's Government propose a Section 30 process to devolve powers for a referendum as their preferred option. But that, as with a Legislative Consent Motion, might give the Scottish Parliament a veto. Are the Government not anxious to avoid any such veto and has that been considered? Thirdly, as the noble and learned Lord will be aware, the First Minister says that he wishes to extend the franchise for his referendum—but only that—to 16 and 17 year-olds. Will the proposed consultation look at this issue and at whether only those resident in Scotland may vote?

Fourthly, the time limit within which the referendum was to be held appears to have been dropped. This seemed important. The Prime Minister said on Sunday that 18 months was to be the time limit, but during the week that appears to have been departed from. Why was that?

Finally, on the consultation itself, it surely has to be done properly rather than quickly. Eight weeks seems to be a somewhat abbreviated period for consultation on such an important issue. Why was that period chosen? As the Minister knows well, Calman provided a good model for consultation. Will Her Majesty's Government follow that model?

[Lord Wallace of Tankerness]

I am very grateful to the noble and learned Lord for his welcome of this consultation. I share many of the views that he expressed, not least that any Government of any Parliament on any mandate must operate within the rule of law. That is one of the fundamentals of our democracy. Clearly, too, simply having a straw poll on the day of someone's choosing would not amount to what we understand properly to be a referendum. That is why the Government take the view that any proper referendum is outwith the competence of the Scottish Parliament. That is why we have set out our view on how we might move forward.

I certainly agree with the noble and learned Lord that it would be in everyone's interests, particularly in Scotland but also in the wider United Kingdom, if these matters could now progress, in his words, “in a mature and less rancorous way”. That is certainly our hope and our intention by publishing this consultation.

The noble and learned Lord asked whether, if the Scottish Government produce conflicting legal advice, it would be referred to the Supreme Court. As he knows, the reference to the Supreme Court would fall on any legislation. The whole purpose of this consultation is to try to avoid that situation so that any legislation passed by the Scottish Parliament is within the competence of the Parliament because provision will have been made for it. That is the way of progressing in a mature and less rancorous way. It is in everyone's interest to avoid any legal uncertainty. In White Papers that were produced during the previous term, the Scottish Government themselves recognised that there was some uncertainty. What we are proposing in the consultation with our preferred Section 30 order is a way of ending that legal uncertainty.

The noble and learned Lord asked whether we had considered the possibility that the Scottish Parliament could veto our Section 30 order. That is obviously the case. A Section 30 order must be passed by both Houses of this Parliament and by the Scottish Parliament before being presented to Her Majesty in Council. Clearly, there would be an opportunity for that not to be passed by the Scottish Parliament. However, the whole point of having the consultation and of engaging not just with the Scottish Government and Scottish Parliament but with wider interests in Scotland is to try to avoid that situation, so that if a Section 30 order is brought forward it is one that can command consent and support.

With regard to the franchise, the noble and learned Lord will note that in the consultation document a question is raised about the franchise. It has been suggested by the First Minister that 16 and 17 year-olds may vote. The view of the Government is that the preferred franchise for the referendum is the one that we currently use to elect the Scottish Parliament. It seems perfectly reasonable, if that is the franchise to elect the Scottish Parliament, that it should be the franchise used for a referendum. Obviously, there are wider issues about whether 16 and 17 year-olds should have the vote. No doubt they will be properly debated in time, but it is not a matter to be debated in the context of this referendum. We asked the question but our view is that the franchise for the Scottish parliamentary elections makes the best franchise for a referendum.

With regard to time, the Government have always said that the referendum should happen sooner rather than later. If the Scottish Government work with us during the consultation process and we go down the route of the Section 30 order, it is possible that these powers can be used to deliver a legal referendum sooner rather than later. But this is a consultation and we are seeking the views of people about how best to deliver a legal, fair and decisive referendum, including when the referendum should take place.

Finally, it is explained in the eight-week consultation document that it is eight weeks because while our preferred option would certainly be to use a Section 30 order there is also the possibility of using primary legislation. The obvious vehicle for primary legislation is the Scotland Bill currently before your Lordships’ House. The House will recognise that there are time constraints on that, but we think that the issues here are very clear. It is not as if the points brought together in the consultation document are ones that nobody has been discussing, although the Scottish Government have perhaps not contributed too much until now. If they are about to produce their own response to this, that is a good outcome already from the consultation document. I think that the issues are clear and one would hope that we could get a wide range of Scottish opinion within the eight weeks and still allow the opportunity, if that should be the case, for the Scotland Bill to be used.