The Economic Implications for the United Kingdom of Scottish Independence

Lord Forsyth of Drumlean Excerpts

Wednesday 26th June 2013 Lords Chamber

[Lord MacGregor of Pulham Market]

I cannot speak for my committee as a whole—although I suspect I am doing so—but that exact point occurred to us as we went through all the evidence. Many of the responses that we were getting, or not getting, did not deal with the points that I am raising now. I put my emphasis on the UK Government’s position today because we are in the UK Government’s Parliament, but I hope that many of the issues that we have raised—and, incidentally, that have been raised by Scottish business and some Scottish local authorities, such as the Glasgow City Council—will get a better answer than we have had so far.

As I was saying, we have spelt out many of the consequences of Scottish independence in our report. On defence in particular, there are potentially huge cost implications. Also included are such major issues as the division of assets and liabilities, negotiations on sterling and monetary policy, and so on. That is all very well. On the other hand, so much hinges on the subsequent negotiations. It is not enough, it seems to us, to leave it to those advocating independence to make the case, as the Chief Secretary to the Treasury has argued. He argued the case on our questions on the need to have the negotiations clarified as follows:

“The UK Government believes that people in Scotland will vote to remain part of the United Kingdom and therefore is not making plans for Scottish separation from the UK. This is not complacency but rather based on a strong belief that the UK works, and works well. Scotland contributes to, and benefits from being part of the UK”.

He goes on to say:

“It is for those advocating independence to set out a clear and well evidenced case to people in Scotland about what the implications of leaving the UK would mean for them—including some of the unavoidable choices that will have to be made”.

We do not think that that is a sufficient response because, in fact, the implications for the rest of the UK are very substantial as well. That is why we have argued the particular point that I stress now. We have argued in our report that:

“Scotland needs and deserves a fully informed debate, based on fact and free from rancour, well before the referendum vote”.

It continues with the following key point:

“To help bring it about the Scottish and British Governments should be more open about how they see the outcome of negotiations after a ‘Yes’ vote; each should indicate the ‘red lines’ of its negotiating stance on such crucial issues as currency, defence, division of assets and debts and negotiations with the EU before the referendum so that voters can make an informed choice”.

I regard this as a critical point. The debate is becoming much clearer and better informed, particularly since we took evidence and completed our report. The UK Government have produced very helpful and detailed analyses of some key issues and we look forward to more. However, there is still this issue about not discussing the negotiations in advance of the referendum. One argument has been that that should wait until after the negotiations, but one problem is that could make it very easy for many of the people intending to vote in the referendum to vote “yes”, on the assumption that all the negotiations would take place afterwards and that there would then be a second vote afterwards, once they were completed. That is not satisfactory and it is not the way it should operate. That is why we have urged—

[Lord Forsyth of Drumlean]

I am most grateful to my noble friend. Does he not think that the Government are facing two ways on these issues of referenda? On the one hand, on Scotland they say that we should have the referendum and then look at the detail afterwards, whereas on Europe the argument is that we must have the negotiations first so people know what they are voting for.

[Lord MacGregor of Pulham Market]

Well, yes. That is exactly why we must be much clearer about the negotiations before the vote takes place. I have explained the UK Government’s position on this and we do not think that that is sufficient. That is why we made the recommendation for the red lines to be clearly established beforehand so that no one is in any doubt as to where both Governments, but particularly the UK Government, would stand firm on some key issues.

To conclude, since we took evidence and completed our report, the UK Government have produced very helpful and detailed analyses of some key issues and we look forward to more. But it is critical that they also address this issue of the red lines and they should undertake to do so well before the referendum. That is the upshot of our report. There is some very helpful analysis in it and it will continue to stand the test of time as we get towards the end of the negotiations. It is on the point of the red lines, which the Government in their response to our report have so far sidestepped, that I would particularly welcome the views of the noble and learned Lord on the Front Bench in the wind-up. I commend the report to the House.

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[Lord Forsyth of Drumlean]

My Lords, it is a pleasure to follow the noble Lord, Lord Rowe-Beddoe. We have served together not only on this committee but on the Barnett committee. I also pay tribute to my noble friend Lord MacGregor, who chaired this committee absolutely brilliantly. I have never known so much work to go into producing the final draft report of any committee. I certainly enjoyed it, although I did find it a great discipline avoiding being too partisan on the committee. The report is not partisan—it sets out the issues fairly and objectively—and I hope that the House will indulge me now if I get just a little partisan, because I spent many weeks on good behaviour. My noble friend played an important part in bringing this document to bear.

I am certainly a nationalist in the sense that I give way to no one in my passion for Scotland, but if I were a Scottish nationalist, by which I mean a separatist, I would be absolutely horrified on reading this report. I would be saying, “What on earth are Mr Salmond and our leadership up to? They have had 50 years to think about the answers to some of these questions, but not only do they not appear to know the answers to the questions but it would appear that no thought whatever has been given to these issues. Yet here we are embarking headlong on a referendum, which will take place in 2014, and what are my people”—if I am a nationalist—“thinking of? How do they expect to go into a referendum for that?”. That is to show that I am fair and balanced, looking at the issue from their point of view.

The noble Lord, Lord Rowe-Beddoe, talked about the climate of fear, as did the noble Lord, Lord McFall, and my noble friend Lord MacGregor. Talking to businessmen and to the leader of the city council, we had evidence of that climate of fear. However, I do not need to tell my noble friend about it; he knows all about how Alex Salmond and the Scotland Office operate.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

I hope that my noble friend will accept that it is the Scottish Government, not the Scotland Office.

[Lord Forsyth of Drumlean]

As my noble and learned friend knows, I am still stuck in the past on some of these devolutionary aspects. He is absolutely right. I am referring to the Scottish Government—or the Scottish Executive as they were quite rightly called until he changed that in an Act that I spent quite a lot of time opposing in this House—and the way they behave. My noble and learned friend—I am sure he will not be embarrassed if I say this—was invited to speak at, I think, the 25th anniversary—

[Lord Wallace of Tankerness]

It was the 50th.

[Lord Forsyth of Drumlean]

He was invited to speak at the 50th anniversary of Loganair. My noble and learned friend must have been a very good customer of Loganair when he represented his constituency so well. He was asked to do that but an official from the Scottish Government rang Loganair and said, “We understand that you have Lord Wallace speaking at this dinner; we think it should be a Scottish Minister”, and it withdrew the invitation. I have no doubt it was thinking about the financial support it receives for its airlines from the Scottish Government. This is the kind of brazen way in which the Scottish Government operate. Are we surprised that few businessmen were prepared to come to give evidence to the committee? The only great nationalist-supporting businessman with any credibility in Scotland who agreed to come and speak to the committee was Brian Souter, who has built a very successful business, but at the last moment—literally days beforehand—he cried off because he did not feel able to do so.

A climate of fear is operating in Scotland. It comes from having a single party dominating a Parliament, without an upper Chamber of this kind and without very much accountability from the Scottish media. Despite that, the First Minister has found it extremely difficult to get cheerleaders for his campaign. He started off with celebrities, all of whom seemed either to live abroad or pay no tax in this country. He has got so desperate to find celebrities for his cause that he is now having to recruit the dead. Only this week we heard from Alex Salmond that Robert Burns would vote yes in the referendum. He quoted these lines from Burns as conclusive proof:

“We’re bought and sold for English gold—

Such a parcel of rogues in a nation!”.

The “rogues in a nation” are not in this part of the United Kingdom; I think they may be north of the border. Of course, that is a reference to how the union came into being in the first place. We should remember how that happened. It came into being because of a financial crisis: something like a quarter of the money in circulation had been invested in the Darien scheme and the Scottish economy was no longer able to sustain that level of financial shock. The Scottish economy could not get access to the single market that was England and her Commonwealth. It was a trade deal. From the English point of view, it was a way of ensuring the succession of the Protestant monarchy, which was a matter of some controversy and of great national security because of the Jacobites.

This union came into being on the basis of maintaining financial security and defence. They are the two matters that come out of this report as being threatened absolutely by the break-up of the United Kingdom now—from Scotland’s point of view, not England’s. The size of the Scottish economy relative to the English one makes it less important for England. Why would Scotland want to give up access to a single market—the rest of the United Kingdom—where most of its goods and services are sold? Why would it, after what we have been through since 2008, wish to remove itself from the security of the Bank of England, the Treasury and a larger country? Why on earth would it want to become so dependent on the revenue from North Sea oil, which, as the report points out, is a very substantial part of the revenue for Scotland as an independent nation, whereas as part of the United Kingdom it is a smaller part and therefore less vulnerable to fluctuations in the oil price? If that sounds like an academic argument, the tax revenue in 2012, as set out in the report, was £6.5 billion. That is 40% less than the previous year. The lack of stability, which dependency on North Sea oil would bring, makes the economic consequences for people living in Scotland very uncertain indeed.

Then we have financial services—financial services that depend on the rest of the United Kingdom for most of their customers, and which also depend on having the security of the Bank of England and the whole apparatus that we have seen working so effectively. As my noble friend pointed out, the Royal Bank of Scotland and the HBOS part of Lloyds account for 1,254% of GDP for Scotland as an independent country. That makes Iceland look as if it was in a very secure position when the financial crisis came along.

When confronted with these issues, answers come there none. On the question of the security of the Bank of England, we are told that it will be fine because, “We will have a representative on the Bank of England and the Bank of England will still stand guarantee”. Why would any English taxpayer wish to put their money on the line for a foreign country called Scotland? This is Walter Mitty economics coming from the First Minister of Scotland, who refused to come to the committee to justify his view.

For those who think that there is some easy way out of this from North Sea oil, there is also the whole question of the decommissioning costs, estimated at some £30 billion and which have to be met by relief on the tax that would otherwise be levied on those oil revenues. Again, answer comes there none, except that the English should pay for the decommissioning because they had the benefit of the revenue in the early years. The lines that are being put are, “We can keep the monarchy and be independent, we can keep the welfare system and have the pensions and welfare administered by the English but be independent, and we can keep the security of the Bank of England”. They are nonsense lines and they are not being properly debated in Scotland as they should be. That is the danger, as the noble Lord, Lord Rowe-Beddoe, pointed out, when things happen on the basis of emotion.

For those who want to see the future, the Minister very unwisely championed the Scotland Act through this Parliament. We are already seeing the first effects of what will happen. The Scottish Government now have the power to set stamp duty. They have just issued a consultation document in Scotland. They are refusing to say what the levels of stamp duty will be until after the referendum—I cannot think why. Everyone in the House will know that stamp duty on houses up to a threshold of £250,000 is 1% in the United Kingdom. In the consultation paper, the Scottish Government propose, as an example, that stamp duty should increase to 7.5% on any amount over £180,000 and 9.5% on properties worth more than £250,000. That is the first effect of these tax-raising powers. To say that an independent Scotland, with the volatility of North Sea oil revenue and all the other matters that I have pointed to that would damage the economy, would be able to reduce tax and not add to it is extraordinary.

The Scottish Government are also, even now, setting up their own inland revenue called Revenue Scotland. We will have two sets of bodies collecting tax north of the border. It is being set up specifically to collect this new land and property tax—this mansion tax that is being imposed on the Scottish people.

I am conscious that time is moving on. I started with a quotation from Robert Burns, which Alex Salmond claimed as his own. I have my own quotation, which I will try to translate later for those who may find some of it a little obscure. It is from the address to the Dumfries volunteers:

“O let us not, like snarling curs,

In wrangling be divided,

Till, slap! come in an unco loun,

And wi’ a rung decide it!

Be Britain still to Britain true,

Amang ourselves united;

For never but by British hands

Maun British wrangs be righted!”.

That echoes the sentiments that are included in this report and is a clear endorsement that Burns was on the side of the Unionists.

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[The Earl of Mar and Kellie]

My Lords, the noble Lord, Lord Lipsey, was very lucky that he still had his slippers on when climbing the Ben, because for me this is an even grimmer debate. I read this report with interest and found it helpful. The committee and the United Kingdom Government presume a victory for the “no” campaign. The committee has considered its angle on possible economic implications which, while significant, are of course not the central point of the referendum. I will talk more about constitution than economics.

The committee did not consider the central issue, that of Scottish democracy and self-government. In a sentence: with political independence the people of Scotland always get the Government of their choice. The “no” campaign has not brought forward enough about Scotland’s possible future within the United Kingdom. The “no” parties have probably not finalised their positions. The presumption is of greater powers for Scotland, though I wonder whether there is much more that could be devolved if the four pillars of reservation are to be retained: defence, foreign affairs, macroeconomics and welfare. I hope that my Liberal Democrat noble friends will develop and promote their federal proposal, similar in many ways to that successfully established in Germany after 1945. This federal solution would at least secure a limited sovereign status for the powers of the Scottish Parliament and also define and limit the powers of the United Kingdom Parliament as the federal Parliament.

King James VI was, I believe, keen to become the emperor of Britain in 1603, arguing that he presided over three sovereign states thereby creating an empire. He failed to win his argument. Unfortunately, he also failed to secure sufficient entrenchment for his Scottish kingdom. That made possible the disappointing development of the incorporating union agreed in 1706, led and driven by the Earl of Godolphin.

Heading back to the report, the committee produced a list of the risks of leaving. I ask that the risks of staying be considered. Some of these are as follows. First, as the noble Lord, Lord Lipsey, mentioned, there is involvement in wars which more meet England’s need to be a major power. Secondly, there is the risk of being removed from the European Union because people in south-east England think they will be better off outwith it. Thirdly, the United Kingdom Government might continue to act without consent from Scotland, as happened over the development of the Clyde naval base. Fourthly, consider this: if the people of Scotland wished to develop into a Scandinavian-style social democracy, they would not be allowed to do so. I am sure there are many more risks.

I turn to the use of campaign metaphors. The “no” campaign would have us use the divorce analogy while “yes” campaigners use the metaphor of the family growing up and going their own ways. Noble Lords will generally be familiar with the risks of entering into a marriage and of selecting a career. Neither can political independence be risk free. There seems to be a presumption in the report that the SNP will form the Scottish Government in 2016. I suspect that Labour may well form the Scottish Government, somewhat perversely, after a “yes” vote. In that case, today’s Scottish Government can hardly make hard and fast predictions about what will be negotiated.

It concerns me that the committee seemed to approve of the idea that after a “yes” vote the remainder of the United Kingdom Government should act in a generally hostile fashion towards Scotland, despite the continuation of the regnal union. I know there is the precedent of the trade war with Ireland, which has at least been worked through. That is curious behaviour for the mother of Parliaments. It smacks of “Leave me and I’ll make your life miserable”—surely a relationship with a poor foundation.

[Lord Forsyth of Drumlean]

I am most grateful to the noble Earl for giving way. Where in the report is there any suggestion that there would be hostility towards an independent Scotland? The report goes out of its way to avoid any language of that kind. Surely the noble Earl is not suggesting that it is hostile to say that if Scotland became independent it could not expect the Bank of England to look after its interests. That is a matter of fact, not of hostility or gentility.

[The Earl of Mar and Kellie]

My noble friend is probably right but I read the report and that is what I felt.

Finally, Scotland needs to emerge from its 300-year constitutional sleep. Clearly, the limited powers granted in 1998 were the early stages of that awakening. Our neighbour and comparator country, Norway, emerged in 1905 from a 400-year constitutional sleep. After becoming one of the poorest countries in western Europe, look at it now. The key is that it achieved democracy before it obtained wealth. It decided in 1990 to set up a sovereign wealth fund. The United Kingdom decided not to do so, thereby depriving Scotland of any choice in the matter. I am confident that there will be more constitutional developments in favour of Scottish autonomy irrespective of the actual referendum result. After all, the status quo is not on offer as the Scotland Act 2012 will be implemented between now and 2016. There must be more such developments because a sustainable, permanent settlement is needed. Economics, though significant, must follow the new settlement.

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[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, first, I welcome today’s debate discussing the important report from your Lordships’ Economic Affairs Committee. I thank all committee members, but I thank in particular the committee chairman, my noble friend Lord MacGregor of Pulham Market, who introduced the debate. Although I pay tribute to all who have contributed to the debate, perhaps I may pick out the noble Lords, Lord Rowe-Beddoe, Lord Hollick, Lord Lipsey, Lord West and Lord Davies of Oldham, on the basis that they are non-Scots. In making the case of the United Kingdom, I think it is very important that we hear voices from outwith Scotland saying how important the union is for all of us.

We have heard valuable contributions. I share the view of the noble Lord, Lord Davies, that it is perhaps unfortunate that there is no representative of the Scottish National Party in this House. That is the party’s choice and a matter for it, but it would have been useful, not least to answer some of the legitimate questions put. My noble friend Lord Steel of Aikwood interrupted my noble friend Lord MacGregor to say that it was odd that, having had two years since we knew that this referendum was coming, the Scottish Government had not come up with the answers. My noble friend Lord Forsyth hit the nail on the head when he said that it has been Scottish National Party policy for more than 50 years. One might have expected that, as it has been its policy, it might have had some answers, rather than either the deafening silence or the change of position which we sometimes get.

Perhaps I may say something about the tone of the debate that we expect in Scotland. It is important that we have a rational and well reasoned debate. I have heard the concerns expressed by a number of your Lordships from all parts of the House about the fears expressed to the committee. I will not comment further, but I can confirm the withdrawal of my invitation to a 50th anniversary dinner referred to by my noble friend Lord Forsyth.

It is healthy when we get contributions from people who do not necessarily have any axe to grind. My noble friend Lord Lyell declared his interest as a member of the Institute of Chartered Accountants of Scotland. That institute, with its distinguished history, has indicated that it will not come out on one side or the other but has already shown its willingness to ask pertinent questions, not least with regard to pensions. It is important that bodies such as that, which have a track record and can be seen as having professional status in Scotland but are not backing one side or the other, make such a contribution.

As we approach the referendum in September next year, it is important that both sides of the debate are robust in their arguments but conduct them with respect and, echoing what has been said, with information. I welcome the fact that a number of your Lordships who have contributed to the debate have commented on the Scotland analysis papers. The three that have been published so far are fairly heavy tomes. I can confirm that another will be published in the next few weeks. To inform the debate, we as a Government have undertaken that programme. There will be further papers on the United Kingdom’s position in the world, the protection of our citizens and defence, the economic benefits of the United Kingdom, and as my right honourable friend the Chief Secretary said in replying to the committee, on issues such as energy and welfare, as well as the important issue of pensions, mentioned by my noble friend Lord Lyell.

In addition, I have heard the disappointment expressed about the Ministry of Defence, but it has contributed to a number of other Select Committees. My right honourable friend the Secretary of State for Defence is to give evidence to the Defence Select Committee next week. There have been reports by the Scottish Affairs Committee, to which evidence has been given. The noble Lord, Lord Rowe-Beddoe, mentioned postal services. I understand that the Business, Innovation and Skills Select Committee in the other place is conducting an inquiry into the implications of Scottish independence for business, higher education, research and postal services. Undoubtedly the Government will give evidence to that committee.

With the possible exception of the constitutional issues raised in the comments of my noble friend Lord Mar and Kellie, there was general unanimity across the Chamber about the importance of Scotland as part of the United Kingdom. Also mentioned in one or two contributions was that it is important that we are not complacent. I assure your Lordships that the Government are not complacent. Earlier today I heard my right honourable friend the Secretary of State for Scotland refer to the referendum in Quebec. It is difficult to draw too many parallels, but he reflected on the fact that the federalists thought that it was in the bag and won by 1% only. We had the benefit of a lecture in Dover House last month by Monsieur Jean Chrétien, who was Prime Minister of Canada, and we certainly got the message from him. That will keep us on our toes. We know that this is a battle that we must win with both head and heart.

[Lord Forsyth of Drumlean]

Does my noble and learned friend not think that it is a trifle complacent of the Ministry of Defence, taking up the point made by the noble Lord, Lord West, to say that it is not looking at any contingency plans for the future of Trident, because it takes the view that Scotland is going to remain part of the United Kingdom?

[Lord Wallace of Tankerness]

My Lords, the Ministry of Defence, as I am sure the noble Lord, Lord West, knows, makes contingencies for many things. As for saying any more on issues of our nuclear deterrent and matters of national security, I am not prepared to go there.

The noble Lord, Lord McFall, referred to Michael Ignatieff and his point that we can have different identities. There is a British identity, although I appreciate that some, if not all, feel a European identity, and there is a Scottish identity. Having made my adopted home in Orkney for the past 30 years, I can share and feel affinity with that Orcadian heritage. I am sure that the point that was being made was that we do not want to choose between these. What we wish to secure by winning this referendum is that we are not forced to make that choice—something that I reflect on after my noble friend Lord Caithness’s comment as to whether I would have to choose between an Orcadian and Scottish identity and a British identity and affinity. Issues of the heart will be involved, but this debate has focused on the importance of the arguments of the head as well.

There are important things that we can say. The United Kingdom Government are producing an increasing amount of information, and I will say more about the communication of that later. We know that the United Kingdom is one of the most successful monetary, fiscal and political unions in history. It is a union that has brought economic benefits to all parts of the United Kingdom, because taxation, spending, monetary policy and financial stability policy are co-ordinated across the United Kingdom.

We know that Scotland and the rest of the UK are economically well placed as members of a single market and a single currency area in the current United Kingdom arrangements. Data published by the Scottish Government suggested that in 2011 nearly 60% of Scottish exports went to the rest of the United Kingdom and that 70% per cent of Scottish imports came from the rest of the United Kingdom. We know that Scottish independence would create an international border between Scotland and the rest of the United Kingdom. International experience shows that there is a border effect. It reduces flows of product, money and people.

We know that the current currency and monetary policy arrangements within the United Kingdom serve Scotland well. Perhaps I can take issue with what my noble friend Lord Caithness said about the First Minister setting out his case very clearly. As my noble friend Lord Forsyth pointed out, within the past five years the Scottish National Party has supported the euro. We were told that sterling was a millstone around Scotland’s neck, but then it supported sterling, either by a currency union or by so-called sterlingisation. Some people in the yes campaign have called for an independent Scottish currency.

The paper that we produced on the currency identified the four options. First, there is an independent Scottish currency. Secondly, there is the euro. Thirdly, there is a sterlingisation, where the Scots keep sterling but are not part of a formal monetary union. Fourthly, there is formal monetary union. None of these is as successful and workable as having our current arrangements within the United Kingdom. The alternative currency arrangements open to an independent Scotland would be less economically suitable for Scotland and the rest of the UK.

We know that the Chancellor, when launching the Treasury paper on currency, said:

“The SNP asserts that it would be in everyone’s interests for an independent Scotland to keep the pound as part of a Eurozone-style sterling zone. … Let’s … look at the evidence… Could a situation where an independent Scotland and the rest of the UK share the pound and the Bank of England be made to work? Frankly, it’s unlikely”.

While the Scottish Government might like to tell people what they think that they want to hear, we are focused on telling people what the evidence says, what the options are and what the consequences of those options are. You do not have to know too much about economics or look too far to see that the eurozone cannot exactly be described as a dream currency union. This was reflected in what my noble friend Lord Maclennan of Rogart said. It was mentioned too by the noble Lord, Lord Hollick, who said that you cannot have monetary union without fiscal union. Countries with the euro are witnessing closer fiscal integration at a time when the Scottish Government would have you believe that you could sign up to a currency union and achieve political and fiscal independence.

It is not just Scotland’s overall economy and currency that we know about. We know that in Scotland we have a strong and vibrant financial services industry as part of the United Kingdom. Financial services contributed £8.8 billion to the Scottish economy in 2010, more than 8% of Scottish onshore economic activity. The sector directly employs 85,000 people in Scotland and a further 100,000 indirectly, which is around 7% of total Scottish employment. We know that our firms and individuals benefit from a world-leading financial services sector and a large integrated domestic market. Our consumers benefit from the UK’s protection and compensation bodies that are able to pool risk across a large and diverse market.

Noble Lords who have contributed to the debate have reflected on the fact that the United Kingdom Government came to the rescue when the Royal Bank of Scotland and HBOS experienced their catastrophic difficulties. In evidence to your Lordships’ committee, Mr David Nish, the CEO of Standard Life, said that what he benefited from today was having a single regulator in a geographical area and that he did not think that there was a working model of cross-border regulation that he could find.

I pick up on the point made by my noble friend Lord Lyell that 70% of pension products bought by Scottish consumers are from firms based in the rest of the United Kingdom, and work by the Institute of Chartered Accountants of Scotland shows that if Scotland were to become independent, the,

“potential impact on funding requirements for employers operating defined benefit or hybrid schemes across the UK is likely to be substantial”.

Another important industry for Scotland is oil and gas. My noble friend Lord Shipley and the noble Lords, Lord Lipsey and Lord Hollick, referred to this. They made the point that wherever this valuable resource is, the revenues are volatile and in long-term decline. The UK has a broad and diverse enough economy to be able to absorb this volatility, but it would loom larger in a Scottish economy that would be less able to absorb it. My noble friend Lord Forsyth asserted that the First Minister would clearly want the United Kingdom to bear the decommissioning costs and quoted the Minister who, when asked on 25 April last year whether Scotland would take these costs on, said that the answer was yes. That contrasted with what his Energy Minister, Fergus Ewing, said on 17 April, which was that the UK had a moral and certainly a legal obligation to be responsible for the decommissioning of these rigs. Within a period of 10 days, there had been a diametrically conflicting view of what the position would be on these costs. It is incumbent on the Scottish Government to be a bit more direct in giving answers to these questions.

[Lord Forsyth of Drumlean]

I apologise for interrupting my noble and learned friend again, but is it not a matter of choice because the decommissioning costs are given by tax relief on the tax revenues? If the oil becomes part of Scotland’s assets, it is not a matter of choice whether it meets the decommissioning costs; they would have to be met because they would be part of the tax regime. Otherwise, it would be too expensive to take the oil out of the ground, in which case the revenue would be zero.

[Lord Wallace of Tankerness]

My noble friend makes an important point. I am simply pointing out that the Scottish Government do not seem to have worked out which way it is. I am not trying to offload a moral or legal obligation on to the United Kingdom.

A number of noble Lords, including my noble friend Lord Caithness and the noble Lord, Lord Hollick, mentioned the assets and liabilities. Clearly the division of liabilities and assets would be a significant part of any negotiations to create a new state. In the case of Scotland and the rest of the United Kingdom, it would have to be settled by negotiation. Unpicking the United Kingdom’s institutional and governmental infrastructure framework would be a huge task, and it is impossible to say with confidence what the outcome would be. Although there are some general principles of international law that could impact upon this matter, there is no clear set of rules in international practice about the precise allocation of national debt in these circumstances, but there would be an expectation that an independent Scottish state would take on an equitable share of the UK’s national debt. How an equitable share would be calculated is open to question, although I think the Finance Secretary, Mr John Swinney, accepted that there would be that obligation when he gave evidence to your Lordships’ committee.

Europe and Scotland’s place in Europe also featured in the report and in our debate. Again, we know that if Scotland left this union, the rest of the United Kingdom would be a continuator state. That was set out very clearly in the first Scotland analysis paper that we produced. The United Kingdom as a continuing state would maintain the same set of terms and conditions, rights and responsibilities that we enjoy today in Europe, NATO and the G8. Scotland would be a new state and would have to seek to join all those international bodies. That is a fact that the Scottish Government initially sought to deny. With regard to Europe, they said it would be seamless, automatic membership. Now, in the face of the evidence, they publicly accept that they would have to negotiate their way in. We could debate this. There are differing views about how that negotiation would take place, but there can be no doubt that it would be a very difficult negotiation. As the noble Lord, Lord McFall, pointed out, there would be no guarantee of an exemption from euro membership, or from Schengen, as the noble Lord, Lord Kerr of Kinlochard, stated. My noble friend Lord Caithness asked about the share of the rebate. It is impossible to say what the share of the rebate would be or whether the European Union would even grant any rebate to the Scottish Government. It would be a matter of negotiation not with the United Kingdom Government, although as a member state we would have a part to play in it, but, after the accession of Croatia next week, with 27 other Governments, and there is no guarantee about the outcome of such negotiations.

Defence was quite properly raised by a number of noble Lords. In our responses to other Select Committees we have sought to give some indication of the number of defence-related jobs in Scotland. How many would be lost would to some extent depend on the configuration of Scottish defence. My noble friend Lord Shipley mentioned the report this week from the Scotland Institute, which did not really offer much about what the profile of Scottish Armed Forces would be. As at 1 April 2103, there were more than 11,000 regular armed forces and 4,000 Ministry of Defence civilian personnel in around 50 sites throughout the country. Following the Defence Secretary’s announcement on 5 March about the Army basing plan, by 2020, there will be some 12,500 regular armed forces based here and Scotland will be home to all the Royal Navy’s submarines, one of the Army’s seven adaptable force brigades and one of the three RAF fast jet main operating bases.

With regard to civilian defence jobs, the Scottish Government’s agency Scottish Development International estimates that the defence sector in Scotland employs more than 12,600 people. The building of the Queen Elizabeth class carriers, initially on the Clyde and with further construction in Rosyth, underlines the commitment to defence jobs in Scotland. We can confidently say that that could not by any stretch of the imagination be maintained at that level in an independent Scotland.

I recognise that calls for more information have come in this debate. We are committed to setting out facts and evidence to ensure that people take an informed decision. I take the point that we, not just as a Government, but all of us who support the union, have an obligation to go out and sell the message. It may be that these weighty tomes are a bit weighty for leaflets or for a snappy column in some of our newspapers. Certainly, that has been represented to us, and the tenor of some of the contributions to this debate was that we should think of ways in which we can put out a more popular version. We are aware that these requests have been made, and we will give consideration to that.

Ministers have a particular responsibility, but others can get out and talk. On Friday, I will be speaking to the Scottish Council for Development and Industry in Aberdeen on constitutional issues. I know when my right honourable friend the Secretary of State for Scotland saw the report about the Scottish Chambers of Commerce and those who did not think that they were informed enough, he said—he will probably not like me for this—that he would be happy to go to talk to some of the chambers of commerce up and down Scotland. If anyone is listening from the various component parts of what I think is a federation of SCCs, there is an opportunity there to invite the Secretary of State for Scotland, but others of us would be willing to do so.

I heard the request that we should engage in pre-negotiation. I am not going to side-step it, and I know it will be a disappointment to my noble friend Lord MacGregor, but the United Kingdom Government have made it clear that we are not going to enter into pre-negotiations. My noble friend Lord Caithness said that the First Minister had said that we should. In fact, in a letter to my right honourable friend the Deputy Prime Minister, the Deputy First Minister said:

“The Scottish Government has not asked you to pre-empt the referendum vote in that way. Indeed, I was clear in my speech at Strathclyde University on 3 December that ‘independence negotiations [... ] will follow a yes vote’”.

There are a number of reasons for this. Many people in your Lordships’ House are involved in business, and I do not know how many of them would go into a negotiation showing their negotiating hand and their red lines. Perhaps more fundamentally than that, I belong to a Government who represent the whole of the United Kingdom. If we were to have that kind of pre-negotiation, I suspect it would not be possible for my right honourable friend the Chief Secretary to be part of it because, in the event of independence, he would have a different standpoint. He is a Scot. You would then have part of the United Kingdom Government perhaps debating against another part. My noble friend Lord Caithness might expect me, as someone who is resident in Orkney, to have an interest in that too, and I might not be able to take part either. I cannot think of anything that would better suit the argument of those who want to break up the United Kingdom than that those who want to maintain the United Kingdom spend the next 15 months arguing with each other about what the negotiating position would be. This Government believe in a United Kingdom. If there are negotiations post a referendum, someone will need to represent the interests of England, Wales and Northern Ireland, but that cannot happen before the referendum. We believe in the integrity of the United Kingdom, and once you start unstitching the threads of the United Kingdom by that kind of approach, I fear that we would be in a very difficult position indeed.

When my noble friend Lord Forsyth was quoting the First Minister quoting Robert Burns, I sent a note to the Box asking for the words of a poem that starts:

“Does Haughty Gaul Invasion Threat”.

The Box came back with the verse:

“Be Britain still to Britain true,

Amang ourselves united;

For never but by British hands

Maun British wrangs be righted!”.

I got the words from the Box, but my noble friend quoted the poem by himself. There is so much truth in it. If we want to put out a very clear position, there is a way in which people in Scotland can have the same currency as people in the rest of the United Kingdom, the same financial regulations, the same passports, the Bank of England as lender of last resort, the same welfare provisions and the BBC. It is called the United Kingdom, and I hope people will vote for the United Kingdom on 18 September next year.

Scotland: Independence

Lord Forsyth of Drumlean Excerpts

Monday 13th May 2013 Lords Chamber

[Lord Wallace of Tankerness]

I very much agree with the initial comments of the noble Lord that Scotland is better within the UK and the UK is better with Scotland in it. I take his point, too, that it is important that the tone of the argument is set, and that it is positive, because there is a very positive case to make. However, pointing out some of the difficulties and challenges of independence does not mean that we are scaremongering or being negative. For example, the paper recently published on currency showed the disadvantages of a number of other options but also showed, beyond peradventure, that the best option of all is for Scotland to remain part of the United Kingdom.

[Lord Forsyth of Drumlean]

My Lords, will my noble and learned friend indicate what the Government’s position will be on the West Lothian question and on the Barnett formula? Surely, if people are going to vote in the referendum and wish to remain in the United Kingdom, they need to know what the position of their representatives at Westminster will be, and what the funding position in the future will be.

[Lord Wallace of Tankerness]

My Lords, as my noble friend will know, the commission established to look at the so-called West Lothian question, under the chairmanship of Sir William McKay, reported a couple of months ago, and obviously the Government are looking at and considering the detail of that report. It has been made clear on a number of occasions that the Government do not have any plans to reform or revise the Barnett formula, as our primary objective is to get the UK government finances back into a healthy situation.

Scotland: Referendum

Lord Forsyth of Drumlean Excerpts

Tuesday 26th March 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I have indeed heard the First Minister’s call for a head-to-head debate with the Prime Minister. I also recall the First Minister warning London-based politicians such as the Prime Minister to keep out of the referendum campaign, so he cannot have it both ways. While I accept the challenge and would be delighted to take part, one might also ask whether the First Minister will go head-to-head with the leader of the Better Together campaign, Mr Alistair Darling, who at least has a vote in the referendum, unlike the Prime Minister. However, let me make this clear: the Prime Minister will argue very vigorously for Scotland’s continuing place in the United Kingdom.

[Lord Forsyth of Drumlean]

My Lords, will my noble and learned friend acknowledge that the Prime Minister is not a London-based politician? He is Prime Minister of the whole of the United Kingdom. Will he not agree that the referendum on independence for Scotland is clearly a matter for Scotland? However, if we were to move to devo-max or some form of federalism, that would be a matter for the whole of the United Kingdom, which would need to be settled by a referendum that involved everyone in the United Kingdom.

[Lord Wallace of Tankerness]

I certainly agree with my noble friend, and I think I made it clear that the Prime Minister believes in the integrity of the United Kingdom. I believe it was others who suggested that he was a London-based politician. I also hear what he says about so-called devo-max, which is a brand without a product at the moment. I also recognise that that has implications for the other parts of the United Kingdom and that, were we to go down such a road, it would be very important to secure buy-in from those other parts of the United Kingdom.

Succession to the Crown Bill

Lord Forsyth of Drumlean Excerpts

Thursday 28th February 2013 Lords Chamber

[Lord Luce]

My Lords, I support the objective of the amendment moved by the noble Lord, Lord Cormack, although I have reservations about its wording. I should say hastily that I am speaking for myself and not as a former member of the Royal Household. The House may have noticed that earlier there was a small cluster of former members of the Royal Household, but we have now widened the gaps between each other.

My view is based on the limited scope of this Bill and the assumption that we are not talking about the establishment of the church or about changing the position of the monarch being the Supreme Governor of the Church of England, and thus the requirement that the Supreme Governor should join in communion with the Church of England. That, to my mind, is not the issue, rather it is much more limited to the proposal in the Bill. At Second Reading, I asked the Minister whether we could seek greater clarity on the requirement that those in the line of succession must be brought up within the Anglican faith. All I am seeking to do is to minimise misunderstandings that otherwise could arise from the passing of this Bill in connection with Clause 2.

There is a disparity between what the then Archbishop of Canterbury, Rowan Williams, said, and what the Archbishop of Westminster said at the time of the Perth agreement in October 2011. Archbishop Rowan Williams said that,

“there needs to be a clear understanding that the heir is brought up in”,

the Church of England environment. The Roman Catholic Archbishop of Westminster said:

“I fully recognise the importance of the position of the established church … in protecting and fostering the role of faith in our society today”.

That is a helpful message, but the two are not clearly in line, and in my view there is something of a lack of clarity in this. Of course, this is something that may never happen in our lifetime, but nevertheless it could happen. It is in order to minimise the risk of misunderstanding that I believe the noble Lord, Lord Cormack, is moving the amendment.

In my Second Reading speech I suggested that the Minister should agree to have some further discussions with the Roman Catholic leadership in this country to see whether we cannot get a clearer understanding, and I would be grateful if, when he comes to respond to the debate, he would let us know if he has anything to report at this stage.

[Lord Forsyth of Drumlean]

My Lords, I apologise for being unable to be here earlier, as I had a long-standing engagement, and also for not being able to participate in the earlier stages of this Bill. I am afraid that unusually, because I have the highest regard for my noble friend, I do not feel able to support this amendment at all.

I have some history on this matter. I believe that the provisions contained in the 18th century legislation with quite vile language about Roman Catholics should be removed from the statute book. As Secretary of State, I think I described it as the constitution’s grubby little secret. When I first came to this House, I was unwise enough to bring forward a Private Member’s Bill to deal with this issue. I was ambushed at the very first stage by my late and much missed friend, Lord St. John of Fawsley, who by use of procedure, prevented me from even being able to speak to my Bill or to introduce it again for a year. As a result, I realised that this was a much more complex issue which required considerable discussion and was not suitable for Private Members’ Bills.

It is therefore a great disappointment that this legislation has been rushed through the House of Commons as it has, without proper debate, on a timetable which we normally reserve for Bills concerned with terrorism or some immediate national interest. For the life of me, I do not see why these matters have been dealt with so quickly. In opposing this amendment, for the reasons that my noble friend Lord Deben spelled out so clearly—I will not repeat the arguments—I would like to say as a member of the Church of Scotland, although I worship in the Episcopal Church of Scotland, so I am a kind of hybrid, I find it extraordinary that the opportunity was not taken in this legislation to remove the prohibition on the monarch themselves being a Catholic.

I have a specific question for the Minister to deal with, on which my noble friend Lord Deben touched. As I understand it, the role of the monarch as head of the Church of England is not a canonical role, and therefore there is no reason, as my noble friend said, why the monarch has to be a member of the Church of England. There may be other issues that arise from that, and I appreciate that the example of James VII or James II—depending on your perspective—may not have been an entirely happy one. However, it did not end in tears because he was a Catholic and head of the Church of England; some other issues resulted in it ending in tears.

The Deputy Prime Minister has brought forward this legislation on the basis of extending equality, although it is rather ironic that we should be talking about equality in the context of the monarchy. It seems to me quite extraordinary that we have not been able to take that further step and remove the prohibition on the monarch being a Catholic. In the 18th century, there were very good reasons for having this language; it was about the security of the nation. Indeed, the very Act of Union itself occurred as a deal; the Scots were bailed out from the huge losses which had been created by the Darien scheme, and in return the Protestant succession was secured. That was what it was about. Therefore, to leave on our statute book words which cause great offence to many Catholics and non-Catholics in our country is shocking and it is sad that the Bill does not deal with it.

In support of his amendment, my noble friend Lord Cormack has suggested that some deal would be done with the Vatican. Of course, we have to have regard to our constitutional history but, as my noble friend Lord Deben pointed out, the independence of the monarchy is fundamental to our constitution. Although the Vatican is no longer a foreign power which will encourage the French or anyone else to usurp the Throne—those days are long since past—it would be totally inappropriate to have an amendment of this kind. However, I agree with my noble friend in so far as moving this amendment highlights the anomalous position of this legislation.

I should just make it clear that I would not want to see the Church of England cease to be the established church. My goodness me, secularism is rampant in our country at the moment; this is not the moment for something of that kind and I would not support it. The heir to the Throne has talked about being “Defender of Faiths”, and it is a mistake for the Church of England to appear to take a position that has the unfortunate effect of making people believe that it cannot continue to be an established church while removing that discriminatory language from our statute and constitution.

[Lord Trefgarne]

My Lords, I have some sympathy with the objective of my noble friend Lord Cormack’s amendment, but I have considerable doubt as to whether it will achieve what he seeks.

I rather doubt whether the Vatican would be willing to give the sort of undertaking that my noble friend suggests. It sounds as though that would be very difficult indeed for it. Whether or not our sovereign might be of some different faith, not of the Church of England and perhaps even Roman Catholic, is a wholly different but of course crucial issue. I have tabled subsequent amendments that touch upon that, although I suspect that we have discussed it pretty fully under this amendment. I think that my noble friend’s amendment will not achieve what he desires and I hope, therefore, that he will not press it.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Cormack for introducing this amendment. It has generated a passionate debate and raised important issues, not least ones also reflected in our Second Reading debate about the upbringing of children should there be a mixed marriage. The noble Lord, Lord Luce, quite properly indicated that this Bill is limited in its scope and does not deal with the established church or the monarch as Supreme Governor. I know the passion with which my noble friend Lord Forsyth takes a view—which I share—on the wording of some 17th century legislation. That wording is offensive, but as the noble Lord recognised from his early attempts with a Private Member’s Bill, these matters are hugely complex and I do not believe that this Bill is the appropriate place to deal with them.

As the noble Lord, Lord Luce, indicated, at Second Reading he and the noble Lord, Lord Janvrin, asked if I would meet representatives of the Catholic Church. I did so earlier this week. I can inform the House that I came away with a clear message that in the instance of mixed marriages the approach of the Roman Catholic Church is a pastoral one. It was considerably stressed to me that the Catholic Church will always look to provide guidance that supports and strengthens the unity of the partnership and the indissolubility of marriage. It is in this context that the Catholic Church expects Catholic spouses sincerely to undertake to do all they can to raise their children within the Catholic Church.

However, where it has not been possible for the child of a mixed marriage to be brought up as a Catholic, it has been drawn to my attention that the Catholic parent does not fall subject to the censure of canon law. The clear signal was that the overriding concern in Catholic pastoral guidance to couples in mixed marriages—it was drawn to my attention that there are many mixed marriages today in England and Wales—is the unity and indissolubility of the marriage. I assure the House that it is not the case that the children of all mixed Protestant and Catholic marriages must be brought up in the Catholic faith.

It is also important to note the important concept within the Catholic Church of subsidiarity. As a Presbyterian I do not pretend to understand it, but it is one that I have certainly heard associated with the Catholic Church. We perhaps debate the word in another context, but within the organisation of the Catholic Church, subsidiarity is an important concept and much decision-making is devolved to a local level, including decisions relating to mixed marriages. Quite simply, the Vatican does not get involved. My noble friend Lord Deben highlighted both the constitutional implications and significance if the amendment moved by my noble friend Lord Cormack were to be carried. It would raise constitutional issues and would put the Pope in a very difficult position, one that I suspect the Vatican does not aspire to have thrust upon it. In its recent letter to Members of your Lordships’ House on this issue, the Church of England stated:

“The present prohibition…is not necessary to support the requirement that the Sovereign join in communion with the Church of England”—

that is, the prohibition on marrying a Catholic—and therefore:

“Its proposed removal is a welcome symbolic and practical measure consistent with respect for the principle of religious liberty”.

The Archbishop of Westminster, as quoted by the noble Lord, Lord Luce, welcomed the decision of the Government to give heirs to the Throne the freedom to marry a Catholic, and recognised the importance of the position of the established church in protecting and fostering the role of faith in our society today.

[Lord Forsyth of Drumlean]

What was the Government’s motivation in removing the prohibition on the heir to the Throne marrying a Catholic? Was it to enable the heir to the Throne to marry a Catholic, or was it to remove the discrimination against Catholics?

[Lord Wallace of Tankerness]

My Lords, it was both. It was to allow someone in the line of succession to the Throne to marry a Catholic and to remove that discrimination. I know that the noble Lord’s subsequent question would be, “Why don’t you remove the ultimate discrimination?”. However, as he acknowledged, from his own efforts to do something, this is a much more complex issue. He says that he does not wish to disestablish the Church of England. Many would argue that if we went down that road, it possibly would lead to the disestablishment of the Church of England. There is a proper debate to be had there, but this emphasises that that is not the purpose of this Bill. However, where an opportunity has arisen to remove at least one area of discrimination, it has properly been seized.

My noble friend Lord Deben made the point that, if this genuinely is an issue, it already exists in another context. My noble friend Lady Falkner of Margravine raised the point at Second Reading which my noble friend Lord Deben made about Islam. My noble friend Lady Falkner asked whether the perceived,

“constraints on the children of Catholics being bought up—and the Catholic Church’s perspective on that—would be different if the monarch was married to a Muslim, as is currently permissible? Muslim children are, likewise, expected to be brought up in mixed marriages as Muslims. So the anomaly exists in the case of other faiths, but perhaps not in the case of Catholics”.—[Official Report, 14/2/13; col. 805.]

That was the point that my noble friend was making. Therefore, the amendment of my noble friend Lord Cormack seeks to address one problem but does not extend to include every faith that currently exists. It is certainly not the Government’s plan that we should do so.

We will obviously return to this issue of establishment and whether the sovereign could be a Catholic in some of the later amendments. However, I readily appreciate the very human concerns. When you are dealing with affairs of state and issues of the constitution, you must remember that you are also talking about two people who want to get married. That is why it is appropriate that there is a pastoral dimension to this and that it is done at a pastoral level. I hope that, with these reassurances, my noble friend will withdraw his amendment.

--- Later in debate ---

[Lord Northbrook]

My Lords, I support my noble friend Lord Trefgarne in his amendment. I first raised the issue in my speech at Second Reading, so I claim a little credit for the idea. As my noble friend has said, it sidesteps a key problem if the heir is a Catholic and keeps a link between church and Crown.

[Lord Forsyth of Drumlean]

My Lords, I shall speak briefly to this amendment and pick up a point which my noble and learned friend Lord Wallace made in his response to the previous amendment when, with typical skill, he used something I said as an argument against me. I had said that the issue was too complex to be dealt with by a Private Member’s Bill. I was persuaded by the late Lord St John of Fawsley that this was not a matter suitable for being dealt with by a Private Member’s Bill and was best left to the Government to deal with. It is not really good enough for the Government to say that this is a very complicated area and it would mean having to deal with the whole issue of maintaining an established church and therefore we have gone for half a loaf. In my speech on the previous amendment I asked my noble and learned friend Lord Wallace to explain why it is not possible to devise a basis on which the monarch can remain head of the Church of England but not actually be of the Anglican faith. This amendment, moved by my noble friend Lord Trefgarne and supported by my noble friend Lord Northbrook, is a particular approach.

I do not think it is necessary to create a regency in order to do so. We did not have the opportunity to hear the view of the Church of England in respect of the previous amendment. Even if the Government’s position is that they will not do it in this Bill, it is disappointing that they are not able to explain what the options and difficulties are about it. My noble and learned friend did not fall into the trap when I intervened in his speech and asked him what the Government are trying to do here. Are they trying to end discrimination against Roman Catholics or are they just trying to enable the heir to the Throne to marry a Roman Catholic? I would be horrified if it is the latter. Of course, that is a good thing to do—if two people want to get married they should be able to do so—but I thought that this was part of a wider agenda of ending discrimination against Catholics. We need to understand why the Bill has not provided for that and why the idea contained in the amendment could not provide a way forward.

--- Later in debate ---

[Lord Wallace of Tankerness]

I apologise if I did not make myself clear. I did not mean to suggest that it was as Supreme Governor of the Church of England that she made the oath with regard to the Presbyterian Church Government in Scotland. I was in fact suggesting the opposite; it would not be appropriate for someone who was appointed as a regent—a Supreme Governor—to make that oath. I think that that would be wholly inappropriate. It raises the question of whether a monarch who was indeed a member of the Roman Catholic Church would be in a position to make any commitment regarding the maintenance of the Protestant religion and the system of Presbyterian Church Government.

[Lord Forsyth of Drumlean]

Why?

[Lord Wallace of Tankerness]

My noble friend Lord Forsyth asks why. I think that it raises some very interesting issues that have not been thought through. This is why I say that we should not go down this road. I do not propose to go down this road; I suggest that there is a host of issues, and that is why we should not go down the road proposed by the amendment.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, before my noble friend Lord Trefgarne replies, perhaps I may pick up on a point where I do not believe that the argument of my noble friend Lord True holds. Under the law as it stands—and there is no proposal here, nor do the Government have any proposals to change the law—the sovereign may not be, nor have been, a Roman Catholic. Therefore, the situation which my noble friend Lord True suggested, where the sovereign comes to the Throne having to agonise as to whether to renounce the Catholic religion, just would not arise, because, having been a Catholic, he or she would not be eligible to ascend to the Throne.

I entirely concur with my noble friend’s opening remarks: these are very much human matters at the end of the day. There is a human dimension to it, and that is why, in response to the earlier debate, I sought to reflect the discussions which I had with representatives of the Bishops’ Conference of England and Wales so that this is looked at at a pastoral, human level, which seeks to reflect the importance of the union of a partnership and the indissolubility of marriage. It is against that background that decisions should be made and advice given with regard to the upbringing of a family. I accept that there is a human dimension to this, but I should perhaps clarify that the dilemma that my noble friend was suggesting cannot occur because the position is that the sovereign must not be, or have been, a member of the Roman Catholic Church.

[Lord Forsyth of Drumlean]

My Lords, I had not appreciated this until my noble and learned friend said it: he said that not only would a Catholic not be able to ascend to the Throne but that someone who had been a Catholic but had then converted to be an Anglican could not ascend to the Throne. That has nothing whatever to do with the position of being Supreme Governor of the Church of England. That is a simple discrimination against Catholics. My noble and learned friend said, “Oh, the reason that we have made this Bill focus on just these three areas is because the issues are so complex”. It is clear that he will not accept the amendment, and I accept some of his arguments for that—but, in listening to this debate, can he not see that there are a number of issues? The noble Lord, Lord Stevenson, suggested that we should have a Select Committee, or some kind of body to look at these issues, and park the Bill while that is going on. What is the rush here? What is the reason for our needing to rush forward with this legislation at this pace?

Perhaps at the end of the day, it might be concluded that it was impossible to reconcile maintaining an established Church with removing this discrimination against Catholics. However, if the Government say, “Oh well, this is just a Bill that’s dealing with these matters”, bear in mind that this legislation has to be approved by all the other Parliaments around the world. Would they not think it very odd if we came forward with this Bill now and then a short while later came forward with the other bit of it? Or is the proposition that this is just too difficult? If it is too difficult, why on earth did the Government embark on this journey in the first place?

--- Later in debate ---

[Lord Lyell]

My Lords, perhaps I may chuck a very small pebble into this debate. My noble friend Lord Lang gave the most marvellous dissertation, but I would advise your Lordships to take care to skip along to the Library to take a glance at either Burke’s or Debrett’s Peerage. Your Lordships should look, above all, at the consanguinity and the very long chance of the arm of the blood relationship. Your Lordships may not be aware that Queen Elizabeth the Queen Mother was the ninth child of the Earl of Strathmore. The eighth child was the grandfather of the current Earl of Strathmore. In that bloodline, it shows that there is a very long list of candidates, which might even rival that of my noble friend Lord Lang. I do not think that six is enough and perhaps one day, my noble and learned friend will be able to explain to me what I seem to remember from my earlier studies of Scottish law, when women come into the law of succession, which may have been changed. Would my noble and learned friend, let alone my noble friend Lord Lang, please take note that six is not enough?

[Lord Forsyth of Drumlean]

My Lords, briefly, I support my noble friend Lord Lang, who has proposed a perfectly sensible amendment. I am sure that my noble and learned friend will be able to accept it if for no other reason than that his right honourable friend the Deputy Prime Minister has indicated that the choice of six was purely arbitrary. My noble friend has made a strong and powerful case and what struck me most about his speech was the sheer serendipity of this matter. If this Bill had been in place—as someone in the other place pointed out during the somewhat truncated debate on the matter—the Kaiser would have ended up sharing the throne of the United Kingdom. These changes are unpredictable; the only difference I have with my noble friend Lord Lang is why he chose 12, not six.

I hope that my noble and learned friend Lord Wallace of Tankerness will not resort to the usual trick of saying, “Well, on the one hand, there is an amendment that says it should be fewer and on the other there is an amendment that says it should be more; I think it’s probably right that we got it somewhere in between”. I hope I have not taken his speech from him, because that would be a disgraceful response to what was a very well argued case, which demolished the basis on which the Government had reached their conclusion. If, however, my noble and learned friend finds that he cannot accept the number 12, it makes the case even stronger for having a special committee to look at these matters and consider them more carefully, so that we can get a number which actually makes sense.

[Lord Trefgarne]

My Lords, I would like to make a short intervention at this point; it is a serious point. We are not approving marriages: we are saying whether the people who marry can remain in line to the Throne. There are some categories of marriage that we might consider would make it inappropriate for the person concerned to remain in line to the Throne. Others have mentioned the single-sex marriage legislation that is going through Parliament. It might well be that a future sovereign would feel disinclined to approve a marriage of that kind, lawful though it might otherwise be. I put that serious proposition to the Minister. Like my noble friend Lord Lang, I favour an increase in the proposed number.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Lang for this amendment, and not least for the way in which he moved it. Although it was entertaining in many respects, I fully recognise his points. I am not being disparaging—I enjoyed his speech. It was a very good speech and his points were interesting. It is important to point out that none of the people who were in and out actually ascended the Throne. I take his point, which is a pertinent one. Reference has been made on more than one occasion—in another place, too—to the issue of Princess Victoria, as she was known when she was born, being fifth in line to the Throne. There has not been a monarch since the 1772 Act who has been any further out at birth.

Perhaps my mind was working along similar lines to that of my noble friend because I also asked whether it is worth considering when the provision actually bites—which, of course, is at the point of marriage. Since the 1772 Act came on to the statute book, the person who was furthest away from the Throne at the time of consent to a marriage being sought and given was, indeed, around the same time as my noble friend was talking about: King William IV was third in line to the Throne when he married and when he sought and was given consent for his marriage under the 1772 Act. So, in the 240 years since the Act was passed, William IV has been the furthest away from the Throne at the time of his marriage. Again, I am not pretending that there is perfection in this, and I do not believe that a Select Committee could attain perfection in this either. The proposal for six therefore still allows a considerable amount of leeway—which is probably not the right word, but it is the most appropriate word that comes to mind at the moment.

It is important to remind ourselves that a balance needs to be found between mitigating against catastrophic but remote hypothetical events of a line being wiped out and the risk of impinging unnecessarily upon the lives of those who are distant from the Throne. Clearly, my noble friend Lord Lang would prefer to give greater weight to the former; my noble friend Lord Northbrook gives greater weight to the other end of the spectrum. I will not found my argument on that. As three is the farthest away from the Throne at the time of marriage, I believe that six is reasonable. This is bearing in mind that, on the other side of the coin, it can impinge unnecessarily upon the lives of those who are that much more distant from the Throne.

[Lord Forsyth of Drumlean]

My Lords, what representations have the Government had from anyone about their lives being impinged unnecessarily in this matter?

[Lord Wallace of Tankerness]

We have not had the representations that one would expect to receive. I suspect that under the present law there are people who, understandably, do not know that, as a descendant of King George II, they are expected to get consent from the sovereign if they wish to marry. Indeed, we seek in this Bill to address the issue of those who have, as it were, unwittingly married.

The other important point perhaps addresses the point made by my noble friend about the European Convention on Human Rights. There are two issues here. First, the European Court of Human Rights has generally been very reluctant to engage in issues which go to the heart of a nation’s constitution and who should be their head of state. Secondly, unlike the 1772 Act, which made a marriage void if the consent of the Sovereign was not forthcoming, this does nothing so significant. It simply removes the person from the line of succession and the marriage will still be valid. It means only that the person who had not received consent would not take their place in the line of succession.

My noble friend Lord Lang asked where the number six arose from. Ahead of the Perth agreement my right honourable friend the Prime Minister wrote to each realm Government proposing changes to the law of succession principally with regard to the removal of male bias and the bar on the heir marrying a Catholic. At that point the realm Governments were also made aware of the issues surrounding the Royal Marriages Act and the view of this Government that it was outdated. Subsequent discussions with the realm Governments were led by New Zealand which concluded that it was in the public interest and reasonable and proportionate for those who are genuinely close to the Throne to seek consent to marry. To avoid the same problems presented by the Royal Marriages Act in attaching a monarchical consent requirement to the descendants of a specific monarch—at Second Reading I think that someone suggested that we could make it the descendants of George VI rather than George II; that was thought to store up problems for the future—the number six was proposed and agreed. My right honourable friend the Prime Minister then wrote to each of the realm Prime Ministers to confirm their consent to this provision.

I apologise that I was unable to respond to my noble friend Lord Trefgarne at Second Reading when he asked whether consent had ever actually been refused under the 1772 Act. So far as the Government are aware, there has been no instance when the sovereign’s consent to a royal marriage has been refused. My noble friend Lord Northbrook asked in relation to Amendment 14 whether the common law still applies to monarchical consent in cases such as the remarriage of a dowager queen. There is a good argument that the 1772 Act replaced all common law provisions on royal consent to marriages, but it also could be argued that because the 1772 Act applies to the descendants of George II, the common law requirement might conceivably still apply to members of the Royal Family who are not descendants of George II, for example in the remarriage of a dowager queen or a prince consort. But these instances would not affect the line of succession and it is important to recognise that what we are doing here relates only to that. The Bill is concerned with people who may become the sovereign, not with members of the wider Royal Family. It has a specific purpose.

As I say, no number will be perfect, but if one considers that, in the 240 years since the 1772 Act went on to the statute book, the furthest away in line from the Throne at the time when consent for marriage was sought was three; we are allowing for three more. I believe that the figure is a rational one and I would invite my noble friend to withdraw his amendment.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Elton for his amendment, which gives me a welcome opportunity to explain why the amendment that he is seeking to delete was inserted in Committee in the House of Commons.

The effect of the Bill as originally presented, as indeed would be the effect of my noble friend’s amendment, would be to disqualify all descendants from any marriage of a person when a marriage of that person was not consented to. For example—and in fact the other way round from what my noble friend suggested—if a person in the line of succession married with consent and had children, their spouse died and they remarried without consent and had children, the children of the first marriage, which had been consented to, could be disqualified.

The intention of subsection (4) is to disqualify from the line of succession any royal descendants from a marriage not approved by the sovereign. It would go too far also to disqualify descendants from a previous marriage for which consent had been obtained. For these reasons, the amendment to include the words “from the marriage” was tabled and accepted in another place. That is entirely consistent with the agreement that was reached with the other realms and removes a possible ambiguity. The other realms were fully informed of this drafting change before it was proposed.

We will come later to an amendment in the name of my noble friend Lord Trefgarne that relates to the bringing into effect of the Bill. There is no date set. I do not want to pre-empt that amendment and that discussion, but if my noble friend Lord Elton looks at Clause 5, “Commencement and short title”, he will see that provision is made for it to come into force,

“on such day and at such time as the Lord President of the Council may by order made by statutory instrument appoint”.

The purpose of that is so these measures can all come in together on the same date and, I think, at the same time, in the 16 different realms.

Some realms are dealing with this in different ways. Some, such as New Zealand and Canada, will legislate to ensure that the changes take effect in their country. I believe that the Bill was brought into the New Zealand Parliament last week. Other realms, such as Papua New Guinea and Jamaica, have found that they do not need to legislate. The intention is that when all realms have done what is necessary regarding their arrangements, the measures will be brought into effect at the same time. There is no date set.

It has been said that the Bill was rushed through the other place. As I have said on more than one occasion, the Bill did not even take up the time allocated to it in the other place, so I am not sure what could have been done if more time was allocated. It is a simple fact that the time was not taken up.

[Lord Forsyth of Drumlean]

To argue that it did not take up the time and to try and present this as treating an important constitutional measure properly is quite unfair. The point is that all stages of this Bill were carried out over two days in the other place. The conventions have been that constitutional Bills are dealt with over a proper passage of time so that people can make points, the Government can think about them and perhaps even come back with a suggestion for change. By tradition, constitutional Bills have always been taken on the Floor of the House of Commons. To try to argue that this Bill was not rushed through the other place in an untimely manner, with many Members’ speeches protesting about the way it was handled, is a little misleading.

[Lord Northbrook]

Perhaps I may add to my noble friend Lord Forsyth’s comments. At least 17 amendments were put down in Committee in the other place. Only two were actually discussed. I am sorry, but to say that all the amendments put down in Committee were discussed is not the truth.

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[Lord Forsyth of Drumlean]

Why did the Government choose to go about this in this rather unconventional way? Why did the Executive agree with other heads of government a process rather than asking Parliament to consider legislation and then seek agreement from the other interested states, which would also have given their parliamentarians an opportunity to be involved in the process?

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[Lord Wallace of Tankerness]

My Lords, different realms do it in different ways. To pick up the point of the noble Lord, Lord Northbrook, with regard to the amendment raised by my noble friend Lord Elton—on the same subject matter we are discussing now—it does not change the substance of the agreement but rather seeks to remove a possible ambiguity. It was circulated among the other realms, their comments were sought and they were satisfied with that.

With regard to the point made by the noble Earl, Lord Erroll, I understand different realms are dealing with this in different ways. At least one of them, I think, is saying that it approves of the law passed by the United Kingdom Parliament. Others are approving more substantive legislation, and some believe no legislation is necessary at all. It varies, but at the heart of it was an agreement on the substance—namely, the removal of male bias in terms of succession to the Throne; the removal of the barrier of the person in line of succession marrying a Roman Catholic; and the abolition of the Royal Marriages Act 1772 and its replacement with the sovereign’s consent for the first six in line. Earlier, in my response to my noble friend Lord Lang, I indicated that I do not think that that was in the original Perth agreement but was subsequently agreed. The number of six was agreed with the realms.

[Lord Forsyth of Drumlean]

I am most grateful to my noble and learned friend. Will he be kind enough to write to those of us who have an interest detailing how each of the realms concerned will deal with this matter? Would there be any merit in us trying to persuade those parliaments perhaps to accept my noble friend Lord Lang’s injunction to change from six to 12? If one of them did so, what would happen then? Would we have to go back and look at it again? How would it be resolved?

[Lord Cormack]

Further to that and, in a sense, even more pertinent, if this Bill should pass Report stage in this House and the other place endorses the change of six to 12, is my noble friend saying that that would invalidate this international agreement? Does this Parliament have authority in this matter or not?

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[Lord Elton]

My Lords, I think that that falls outside the terms of the amendment. If I could return to my noble friend’s question, surely the answer to his worry is quite simple: at the end of line 31, insert the words, “subject to approval by both Houses”.

[Lord Forsyth of Drumlean]

My Lords, I was quite struck by an argument that my noble and learned friend used in an earlier amendment when he chided me, in arguing that it was important that Parliament was able to take account of the arguments of other parliaments, and suggested that I might be presenting this Parliament as dictating—as opposed to the Executive; it is okay for Ministers to decide things over lunch, but it would be dictating if Parliament made decisions. I see that he has a point there; if we had brought this legislation through both Houses, there might be a feeling in the other realms that we had it all cut and dried.

I have been reflecting on that in a humble way, and have been so persuaded by my noble and learned friend’s argument that I think that the noble Lord, Lord Stevenson, has got it 100% right. If, as my noble friend Lord Elton has just suggested, we were to amend the commencement provision to require approval by both Houses after the other realms had considered these matters, then we would have an opportunity to demonstrate to all those other realms how we were taking account of the views not just of their Ministers but of their parliamentarians. This proposal is actually a clever and ingenious way of delivering what the Minister himself said was appropriate only a few moments ago.

[Lord Northbrook]

My Lords, my queries actually applied to Amendment 17, which I think is grouped with this one.

--- Later in debate ---

[Lord Wallace of Tankerness]

As I indicated, it is up to each country to do it. We are not telling each country what to do and no one is suggesting that. It will be up to each country to determine, according to their own procedures, how that should be done. The key point is the flexibility built into the commencement clause: it will not be given effect to until we are satisfied that all realms have, by whatever procedures they consider proper and necessary, reached that position.

[Lord Forsyth of Drumlean]

I need to be absolutely certain that I understand what my noble and learned friend has been saying. Is he saying that this legislation will not come into effect until it has been approved by all the realms? Is he also saying that this legislation will not come into effect unless and until all its provisions have been approved to the letter by all these realms? In other words, is he saying that if there is a difference of a minor degree between one realm and the legislation then the legislation would not be taken forward?

[Lord Wallace of Tankerness]

My Lords, as I indicated at Second Reading, the intent is that it should be simultaneous commencement in each realm and therefore, by definition, it will not be brought into effect here. Clause 5 will come into effect on the day on which the Act is passed, but that is the commencement section. Otherwise, that then gives effect to what else is there in terms of the commencement order. If there is a material difference we would clearly not be in a position to commence. I think it was my noble friend who made the point that it would not be a very satisfactory position if two generations down the line the Crown went in one direction in one realm and in another direction in another realm. That is what we are seeking to avoid, that is why there was such an effort made to reach agreement and that is why it is important that, in translating that agreement, each realm does that by whatever means it thinks is appropriate according to its own procedures. When these are all done and delivering on the agreement has been reached, the commencement order would be made to ensure that commencement started simultaneously in each realm, delivering the same things.

[Lord Forsyth of Drumlean]

I do not want to detain the House or split hairs but my noble and learned friend said, “If there is a material difference”. I would not say that my noble friend Lord Lang’s amendment, which suggested changing from six to 12, made a material difference to the import or impact of the Bill. I would say that it was a perfectly sensible, minor adjustment. However, if one of the other realms, overwhelmed by the power of the argument put by my noble friend this afternoon, decided to change it from six to 12, would that mean that commencement would not proceed?

[Lord Wallace of Tankerness]

There is an agreement reached and it is up to each realm to implement the agreement. If that agreement is, somehow or another, not implemented in a realm, then we do not have the unanimity to permit commencement.

Succession to the Crown Bill

Lord Forsyth of Drumlean Excerpts

Thursday 14th February 2013 Lords Chamber

[The Lord Bishop of Worcester]

My Lords, I welcome the Bill. The Church of England, as has been intimated, is, broadly speaking, content with the Bill as drafted. We understand the concerns expressed by some about the fast-tracking of constitutional legislation and would usually share them, but the Government are entitled to point out that these proposals have been worked on over a long period, discussed carefully with the church and, as has been observed, agreed with other realms.

The vast majority of people would surely agree that male primogeniture is not appropriate and it is right that this should be changed. The Bill marks a necessary stage in the evolution of the relationship between the monarchy and the people of this country. Such evolution has helped to ensure that the monarchy has been sustained in the affections of the people of this nation. We are all delighted about the impending birth of a child to the Duchess of Cambridge, and it is timely that this change should take place now.

As for male primogeniture, so for the prohibition on marrying a Roman Catholic and remaining in the line of succession to the Throne. The relationship between the Church of England and the Roman Catholic Church, as has been pointed out in your Lordships’ Chamber, has changed drastically, I am pleased to say, since the 15th and 16th centuries, but it is worth noting that there has been a sea change in ecumenical relations between the two churches in recent years, as evidenced by the warmth of the relationship between Pope Benedict and the former most reverend Primate the Archbishop of Canterbury, Rowan Williams, a warmth that I would say extends over the realm. For example, the Archbishop of Birmingham has recently accepted my invitation to become an honorary canon of Worcester cathedral. This means that the prohibition on an heir to the Throne marrying a Roman Catholic is somewhat out of time.

This change would not undermine or replace the requirement that the sovereign join in communion with the Church of England or threaten the establishment of the Church of England—something, as has already been pointed out, that the Archbishop of Westminster has stated publicly that he values, saying that he fully recognises the importance of the position of the established church in protecting and fostering the role of faith in our society today.

[Lord Forsyth of Drumlean]

I am most grateful to the right reverend Prelate for giving way. As a member of the Church of Scotland, could he help me with why it necessarily follows that if the sovereign were allowed to be a Catholic, the position of the established church would be undermined? This may not be the happiest of precedents, but James I was both a Catholic and head of the Church of England. Is it beyond the wit of modern men and women to devise a scheme that would allow the sovereign to be a Catholic and the head of the Church of England?

[The Lord Bishop of Worcester]

Our position would be that it is very important that the monarch, as Supreme Governor of the Church of England, should be a member of it. I am not sure that I want to go into that whole area at the moment; rather, I shall confine myself to what the Bill actually does and does not imply.

Her Majesty the Queen takes very seriously her position as Supreme Governor of the Church of England, and it is important to us that nothing in this legislation threatens that. The established church brings so much to our nation, as Her Majesty herself observed at Lambeth Palace last year. She said:

“we should remind ourselves of the significant position of the Church of England in our nation’s life. The concept of our established Church is occasionally misunderstood and, I believe, commonly under-appreciated. Its role is not to defend Anglicanism to the exclusion of other religions. Instead, the Church has a duty to protect the free practice of all faiths in this country.

It certainly provides an identity and spiritual dimension for its own many adherents. But also, gently and assuredly, the Church of England has created an environment for other faith communities and indeed people of no faith to live freely. Woven into the fabric of this country, the Church has helped to build a better society—more and more in active co-operation for the common good with those of other faiths”.

I support this Bill wholeheartedly, and I wish the Government well in it.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, my noble friend makes an important contribution to that debate. I hope that he will recognise that it would not be appropriate to open up that whole issue, not least given the conflicting views that we have heard in the course of your Lordships’ deliberations today, for the purposes of this piece of legislation. However, I have no doubt that, as the noble Lord, Lord Stevenson, indicated—indeed, the noble Lord, Lord Dubs, had a Private Member’s Bill on this subject at one point—this issue is not dealt with, nor do the Government believe that it should be. We believe in the maintenance of the established Church of England. It is an issue, though, and when that debate takes place my noble friend’s contribution will be an important one for people to consider.

[Lord Forsyth of Drumlean]

I thank my noble and learned friend for giving way. When he says that it is not an issue for this debate, surely the very reason why the prohibition on the heir to the Throne marrying a Catholic being removed is to end that discrimination. My noble friend Lord Deben’s suggestion of a regency would work with the way in which the Bill is presently constructed—that is, the heir to the Throne may be a Catholic but cannot be one. For those of us who do not wish to see the Church of England being anything other than the Established Church, this would be a way of removing the discrimination against Catholics. I have to say that we are not repealing the vile and offensive language, from our modern-day view, which is contained in the 18th-century statute and which causes great offence to Catholics throughout the United Kingdom. Would it not be sensible to consider my noble friend’s suggestion?

Scotland Act 1998 (Modification of Schedule 5) Order 2013

Lord Forsyth of Drumlean Excerpts

Wednesday 16th January 2013 Lords Chamber

We also sought views on the—

[Lord Forsyth of Drumlean]

I am most grateful to my noble and learned friend for giving way. On the point that 86% of the respondents supported the UK Government’s position, this position was that the referendum process should be looked after by the Electoral Commission. Why did the UK Government not insist on that being part of the Edinburgh agreement?

[Lord Wallace of Tankerness]

As I shall come on to explain, it is very much part of the Edinburgh agreement. The Electoral Commission is crucially and centrally involved in the oversight of this referendum.

--- Later in debate ---

Moved by

[Lord Forsyth of Drumlean]

At end to insert “but that this House calls on Her Majesty’s Government not to make the draft order until the proposals for the date of the referendum, the proposed question and the rules governing the conduct of the referendum have been published and until both Houses of Parliament have debated those proposals”.

[Lord Forsyth of Drumlean]

My Lords, if I am ever facing a murder charge, I very much hope that the noble and learned Lord, Lord Wallace of Tankerness, will, as a good Scottish advocate, be there to defend me. He has made a very convincing case out of quite a thin brief, if I may say so.

It may be convenient for the House if I speak to both my amendments. Neither amendment is fatal. If the House were to pass them, they would make absolutely no difference to the order, because they are simply advice to the Government. For that reason, I am not proposing to press my amendments to a Division—and out of respect to the other place, which agreed the order unanimously without a Division.

However, that is not to let my noble and learned friend off the hook, because there are some very serious issues. What are we doing here? We are passing responsibility for a referendum that will determine the future of the United Kingdom to the Scottish Parliament, my noble and learned friend would say. But in fact the Scottish Parliament is one man: Alex Salmond. He completely dominates the Scottish Parliament. We are passing responsibility for the conduct of the referendum to a man who has made it his life’s work to destroy the United Kingdom. We are doing so without knowing the question, without knowing the date of the referendum, without knowing the rules on expenses for the conduct of the referendum and without even knowing who is going to be allowed to vote in the referendum. That is after—how many months?—seven months of negotiation between the Government and the First Minister.

We have no commitment whatever from the First Minister that he will abide by the advice of the Electoral Commission. As my noble and learned friend Lord Wallace pointed out, every other party in the Scottish Parliament has said that it will abide by the advice of the Electoral Commission on the question, and on the rules of engagement and expenses—but not Alex Salmond. I wonder why that should be.

To cap it all, in November the First Minister produced his question. The question that he has suggested, which is contained in my second amendment, is:

“Do you agree that Scotland should be an independent country?”.

There is no more committed unionist in this House than I am, but I would be tempted to answer yes to that question. Scotland is an independent country. In 1707, we did not give up our status as an independent country. Indeed, the Act of Union guarantees those aspects of Scotland that make it an independent country. We have our own legal system and our own education system. We have a completely different tradition in many respects. We even have our own languages. If the question were, “Do you agree that Scotland should be an independent state?”, then of course I know the answer. It is perfectly clear that it is no. By the way, any question that starts “Do you agree” is by definition a loaded question.

It is extraordinary that you have to get to Article 4(5) of the order, on the very last page, to see any mention of independence. It says:

“In this article ‘independence referendum’ means a referendum on the independence of Scotland from the rest of the United Kingdom, held in pursuance of provision made by or under an Act of the Scottish Parliament”.

The order makes it clear that a question framed in terms of whether you think Scotland should be an independent country is, to say the least, utterly misleading.

The Electoral Commission costs a great deal of money. In fact, it costs about half what the Royal Family costs. It has a staff of 129 people but it seems to be incapable of providing the advice on the question, which it has had since 12 November, in time for the House of Commons and this House to have this debate. That is an absolute disgrace. We should have had the advice from the Electoral Commission on the question. In the very fine debate in the other place yesterday, speech after speech centred on the issue of the question, its fairness and whether the Electoral Commission’s advice would be obtained. I asked the Electoral Commission why it could not provide us with the advice and it said that it was allowed 12 weeks and that, with the Christmas period, it was very difficult for it to do so. I have to say that for the Government to bring this order before these Houses before we have that advice is just not acceptable.

As I pointed out to my noble and learned friend, 86% of the responses to the consultation said that the Electoral Commission should be responsible for overseeing the poll. Why have the Government not insisted on that? My noble and learned friend is very good with words and he gives the impression that the commission is overseeing the poll. It is not; it is in a position where it gives advice and the Scottish Government, the Scottish First Minister or the Scottish Parliament may ignore that advice.

We have also heard from my noble and learned friend the suggestion that the determination on the part of the Scottish First Minister to extend the franchise to 16 and 17 year-olds will have no implications for the rest of the UK. I find it extraordinary that this order can have rules included that make the position on broadcasting expenditure and on free post absolutely clear but that it apparently cannot make the position clear on the franchise or indeed the role of the Electoral Commission.

--- Later in debate ---

[Lord Forsyth of Drumlean]

I have considerable respect for the noble Lord. Of course I take his point, but what conceivable reason could Alex Salmond have for not agreeing, along with the other parties, that the Electoral Commission’s advice should be followed unless it was that he wanted to rig the question? The noble Lord says, “Ah, but there will be a political price”, but shall we spend the rest of the referendum campaign saying, “Ah, but the question is unfair”? What happens if we win or lose by a tiny margin? There will be arguments forever after about whether it was a fairly conducted referendum campaign. That is why we need to lance this boil at an early stage. It is no good setting off from the starting line and throughout the race saying, “By the way, this is not a fair race”. We have to win this race if we are to save the United Kingdom.

Just in case the noble Lord thinks that I am being partisan, I should say that I was quite struck during the debate on the order in the other place by what Mr Alistair Darling, the Member for Edinburgh South West, who is playing such a fantastic role in leading the campaign for the union in Scotland, said about passing responsibilities to the Scottish Parliament. He said:

“There is absolutely nothing wrong in that”.

However, he went on to say:

“In practice, the transfer is not just to the Scottish Parliament but to the SNP, which runs the thing as a pretty tight ship—opposition is not usually tolerated—and not just to the SNP, because, as we know, the SNP is very much run by one individual. We need to be aware that that is what we are doing”.

It is absolutely essential that we understand that. Talking about the Edinburgh agreement, he said:

“That suggests that both parties were clear that the Electoral Commission’s role was impartial and that there was an assumption that they would accept whatever it proposes. It is, therefore, disappointing that before the ink was dry on the signatures, we heard from senior members of the SNP that the Electoral Commission could say what it wanted, but it would ultimately be the SNP’s call. That would be unfortunate, in relation to both the wording of the question and the spending limits”.—[Official Report, Commons, 15/1/13; cols. 762 and 764.]

The only thing in that with which I would argue is the use of the word “unfortunate”, for which I would substitute “disastrous”.

There is within elements of the Government and elements of the unionist campaign a creeping complacency which I find really worrying. I keep hearing people saying, “Oh, there is only 33% support for independence”. I ask them to have a look at Quebec. In the referendum for secession there, the position started off with 70% to 75% opposed to secession; in fact, it was 67:33—almost exactly where we are now. By the end of the referendum campaign, the vote against was won by 0.6%. Let us not be cavalier in giving away things that could make all the difference, such as the weighting of the question and the ability of people to get their messages out at this stage.

I point out to my noble and learned friend the causal way in which the Government regard the extension by the Scottish Parliament of the franchise to 16 and 17 year-olds, with all the implications that that will have. I do not have a particularly strong view—actually, I do have a strong view. I do not think that 16 and 17 year-olds should have the vote, but I am open to persuasion. However, what I cannot be persuaded of is that they should have the vote for some elections but not for others. Frankly, saying that the Scottish Parliament has given them elections for the Crofters Commission and that that somehow indicates that there is no precedent for the United Kingdom is an argument of a quality to which I hope the noble and learned Lord will not stoop when he is defending me.

We are suggesting that people in Scotland should not be able to buy a packet of fags or, as someone said in the other place, a packet of sparklers, or a drink in the pub, but that they can decide the future of the United Kingdom. We are suggesting that all of this can be done on the basis of what Alex Salmond decides when he gets out of bed in the morning. This is utterly frightening. If ever there was an example of the tail wagging the dog, then this is it. The franchise should be a UK matter.

My noble and learned friend, in echoing the Secretary of State, is talking nonsense when he expounds this view of devolution. The Secretary of State for Scotland said of the order:

“This devolution of power will ensure that the details of the referendum process itself are made in Scotland, in the Scottish Parliament. That is a principle of great importance to the devolution settlement. Furthermore, the approach here respects another key feature of devolution—namely, that once a matter is passed to the Scottish Parliament, it is for that Parliament to determine the details of the legislation that follows”.—[Official Report, Commons, 15/1/13; col. 745.]

That last is a point made by my noble and learned friend. This is not about devolution. The future of the United Kingdom is not a devolved matter; it is for the United Kingdom. It is true that the United Kingdom Government have decided to amend and use the powers in the Scotland Act to overturn the limitation in order to give the Scottish Parliament that power. I do not have a problem with that, provided that we know what we are getting ourselves into. I believe that we are at risk, given the way in which we are proceeding and the trust that we are putting in Alex Salmond. It is a bit like putting the fox in charge of the chicken coop and arguing that the chickens will protest if it all goes wrong.

The Scottish Government, simply in any fairness, cannot be a participant and the referee at the same time, especially given that this First Minister has form. He was caught out telling porkies about whether he had had advice on whether we would have to rejoin the European Union if we were independent. He spent taxpayers’ money on preventing people getting, under freedom of information legislation, the facts, which turned out to be that what he had said was not true at all. He has already had a red card. I think that we should be concerned about trust.

Another point on the uncertainties that remain is about the timetable. It is absolutely ridiculous that we do not know the date of the referendum. It has to be by 2014, but everyone says that having to wait until 2014 will be hugely damaging to the Scottish economy and hugely damaging to business, will create enormous uncertainty and will bore us all to death, because we will be talking about this for far too long. We need to get on with it.

My noble and learned friend said that he was anxious to avoid talking about process and to get on with the arguments. If he is anxious to get on with the arguments, why on earth are we leaving these issues of process—the question and the rules of the referendum—open to more and more argument over a longer period? The Scottish Government are not even proposing to publish their White Paper until the end of the year—and presumably the Bill will be published after that—so we will be focusing on process because these matters have not been addressed.

Of course, the First Minister agrees with the Electoral Commission that the Scottish Government will need to be in purdah for only four weeks before the referendum. Given the disgraceful and partisan way in which the Permanent Secretary in the Scottish Office has behaved, and given the way in which Alex Salmond clearly is using his role in the Scottish Government to pursue a political agenda, I think that four weeks is far too short a time.

My noble and learned friend is right to say that we need to resolve these matters and get on with discussing the issues. I have to say to him that the UK Government have got some questions to answer as well. We cannot go on with a situation where, for example, the Ministry of Defence is saying, “No, we are not making any contingency plans as to what to do about the Trident nuclear deterrent if Scotland becomes independent and the SNP keeps its commitment to throw the nuclear weapons out of Scotland. We are not doing anything because we do not think that it is going to happen”. That is not good enough. The department should be setting out what the consequences would be in terms of the jobs lost—around 10,000 in Scotland—what the cost to the English taxpayer would be and what the future of our deterrent would be. That applies to every single government department. They should stop sitting there thinking that it is not going to happen. We have a duty to ensure that the voters know exactly what the consequences of voting for independence would be.

The SNP has a role, too. It needs to make its case. It is extraordinary that we will have to wait until the end of the year to hear how the proposal will work. It has had about 30 years to think about it.

[Lord Wallace of Tankerness]

Eighty years.

[Lord Forsyth of Drumlean]

My noble and learned friend says 80 years. Yet we have no response. The First Minister is known as something of a gambler. Ironically, his campaign will be funded on a lottery win, on which, of course, no tax will have been paid. The other part will come from overseas supporters, such as Sean Connery. The noble Lord, Lord Foulkes, made an important point. The Electoral Commission thinks that it is inappropriate for foreign money to be deployed in the campaign, but, once again, Mr Salmond is taking the view that he will not rule that out. Even now, overseas funds are being raised in America. I do not know what it is about the SNP that it has great stars, such as Alan Cumming and Sean Connery, who will do anything to support independence except live in the country that they are arguing should be independent.

I said to my noble and learned friend that I would not press this to the vote but, as I have listened to myself talking, I have been tempted to do so because the case seems absolutely overwhelming. Today, I want an assurance from the Minister that the Government will put pressure on Mr Salmond to answer these issues and to come forward and tell us what the question will be. Most important, we need an absolute commitment that the Electoral Commission will act as referee and its advice will be accepted.

[Lord Foulkes of Cumnock]

The noble Lord has called on the Government to put pressure on Mr Salmond. From time to time, it is better for some of us who are perhaps long-term opponents of Mr Salmond to keep quiet about him, but would it not be helpful if the supine Scottish media looked at the SNP and its policies, started to put them under scrutiny and started to ask serious questions about what Scotland would really be like under independence? Should we be asking them to show us that they can do their job properly?

[Lord Forsyth of Drumlean]

I have to say to the noble Lord that I am quite ambitious, but to suggest that I could get him to keep quiet probably is stretching reality. The media are only as good as the information that they are given. If we are honest with ourselves, the pro-union campaign has been a little slow in getting off the mark—by that, I mean the Government—and setting out the facts. We still are arguing about questions, rules and dates, all of which should have been resolved long ago. We should be talking about the consequences for jobs, employment, investment, defence and our future in the European Union. These are the matters that should be discussed. They are the very last things that Alex Salmond wants to discuss because he and his party do not have any answers as to how our financial institutions would be regulated, how we would be able to operate in a modern world and where they would be in terms of asking to join the European Union from a position of weakness.

I fear that I have gone on for far too long. The Secretary of State for Scotland said that this was the most important question in United Kingdom politics for more than 300 years. I find it sad that the involvement of both Houses of this Parliament should be so limited in a question that is so important—he is absolutely right in that respect. It seems to me odd that the mother of Parliaments is being excluded from this process. My noble and learned friend and his colleague, the Prime Minister, went to Edinburgh. They did a deal in a room, which was never discussed by Parliament. There has been no opportunity for us to do anything. I am reduced to moving an amendment that will make no difference whatever. Even then, Alex Salmond is distorting what we say. I know that Members opposite worry about Alex Salmond and the way in which he seeks to present our commitment to the United Kingdom as being in some way anti-Scottish. It is not anti-Scottish to seek to defend Scotland’s right to remain a part of the United Kingdom and to play a proud and honourable role in this process. I beg to move.

[Lord Reid of Cardowan]

My Lords, it is a great privilege and challenge to follow the noble Lord, Lord Forsyth, on a subject such as this. On this occasion he probably has more support from more people in Scotland than he ever did when he was Secretary of State for Scotland. When he started his reminiscences, it showed how long he has been involved with these matters. He mentioned that he was a leading member of the students’ union at the University of St Andrews in the days when Gordon Brown was rector of Edinburgh University. I was student president at Stirling University and a certain Mr Alistair Darling was student president at the University of Aberdeen. As he pointed out, in those days—no doubt because of his own prowess—there were some 1,500 members of St Andrews Conservative Association and only four members of the SNP. This is presumably why St Andrews did not belong to the National Union of Students but followed the policy of absolute separatism in those days. I agree with a great deal of what the noble Lord said but I am glad he is not pushing the amendment to a vote for reasons that I will explain. It also liberates me to agree with him more than I would have done.

Two distinct questions are being debated around this order. The first is whether the Government made a good fist of the negotiations, the handling of the communication of their argument and the consultation with Parliament. The noble Lord has just given a pretty devastating critique of all three. The second is how we, as parliamentarians, were to respond, and whether our tactical differences over the mishandling of an amalgam or ensemble of tactical questions were sufficient for us to take a strategic decision to vote to renege on that agreement. That would have placed us in an extremely difficult position because, although I agree with a great deal of his criticism, had we taken such a vote, it would have played into the hands of those in Scotland who wish to portray the Westminster Parliament as somehow opposed to this whole exercise.

I just want to make one correction. It was never promised that devolution would stop the aspirations of the Scottish people for independence or separatism or anything else. What was said was that, all other things being equal, it would minimise the chances of the people of Scotland separating themselves from the people of England. That is still absolutely true, although you would have to speculate where we would now be if, throughout the period of Mrs Thatcher and afterwards, we had never given Scotland any degree of devolution, which is the correct way of balancing that.

I will give way to the noble Lord who, in his normal, non-partisan fashion, will deal with questions concerning devolution.

[Lord Forsyth of Drumlean]

I just wonder whether the noble Lord can tell me what, “devolution will kill nationalism stone dead” meant.

[Lord Reid of Cardowan]

It meant that the nationalist aspiration of separating Scotland from the rest of the United Kingdom would be defeated. It meant that we would remain a partner in the United Kingdom for much longer than we would if we failed to give an inch to the aspirations of the Scottish people to meet their national consciousness through a degree of control over it. In order to prove his point, the noble Lord would have to argue that, had we not done that, the demand for separation in Scotland would be less than it is now, and I would strongly disagree. However, today I want to try to stress what unites us here, rather than historical differences.

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[Lord Browne of Ladyton]

My Lords, I am content to be associated with the challenge of the noble Lord, Lord Sutherland, to the Scottish Parliament and I am delighted to follow him. The earlier part of his contribution, in which he went through the elements of the proposed question and the criticisms that his expert group had made of it, was helpful and instructive. It complemented nicely the contribution of the noble Lord, Lord Crickhowell, who spoke with the authority of the Constitution Committee and its helpful report.

That report, although properly directed to a Minister of the UK Government, should really be directed to the Electoral Commission. The fact that the Constitution Committee of this House, with its modest resources, although it has a very distinguished membership, produced such an authoritative and well argued report in a comparatively short time reinforces the criticism from the noble Lord, Lord Forsyth, that the Electoral Commission, with all its significant resources, could not produce a report on the same issue in a time that was in step with the important decisions that needed to be made in relation to the process of this referendum.

It will be of no surprise to the noble Lord, Lord Forsyth, that even were he to divide the House, I would not have voted for his amendment. That is not because he is not a powerful advocate—he knows the view that I hold of his ability to make an argument—but for the reasons that my noble friend Lord Reid of Cardowan set out. I just think it would be bad politics at this stage in this process to support such an amendment to the Motion before the House. That is not to say that I do not have a lot of sympathy with many of the arguments that the noble Lord rehearsed, and which have been reflected in other contributions.

As I am speaking so late in the debate, I am in the fortunate position of not needing to repeat many of the points about the question, the role of the Electoral Commission or expenses. There is both the amount of expenses that the Electoral Commission proposes to allow for the conduct of the referendum and the fact that it appears that we have allowed foreign money to interfere with our domestic politics, contrary to everything that I think we would all agree on about not allowing that to happen. There are people taking advantage of that to bring in foreign money to influence significantly the conduct of this decision in Scotland. I say to the noble and learned Lord, Lord Wallace, that if our regulatory legislation on the conduct of elections has such an obvious lacuna in it that we are allowing foreign money to be used in this way to affect political decisions in this country, it is incumbent on us quickly to close that loophole. As it appears that it is planned that the referendum will take place in late 2014, we have the time to do that. If we can do something to achieve the closing of a lacuna in our electoral regulations to stop this happening, it is incumbent on us to do it. We all agree that we should not allow foreign money to be used in this way and should do something about it.

I intend to concentrate on a small number of points which I think are genuinely additional to what we have already heard. My first point is in support of the noble and learned Lord’s argument that this is being done properly in devolving the power to the Scottish Parliament. I was interested in the irony of the argument that my noble friend Lord Reid of Cardowan deployed for this: the analogy of those leaving the club being entitled to make this decision for themselves, while those who stay and want to change the rules have to do that with everybody in the club. I may be wrong, but I think the first time I heard that analogy was when it was deployed by the noble Lord, Lord Forsyth of Drumlean, in making the argument that there should be only one question in this referendum and that if we went on to the issue of devolution max—a phrase that has slipped away from this debate, thank goodness—that was a matter for everybody in the United Kingdom, not just one for the people of Scotland, and that it therefore had no part in this referendum. I agreed with him then. The noble Lord, Lord Forsyth, may be sitting there thinking that there is a degree of irony that this argument was deployed so skilfully by my noble friend Lord Reid to undermine the argument that the noble Lord was making.

However, there is an additional argument as to why it is right, in the circumstances that we find ourselves in politically and democratically, that we should devolve this power to the Scottish Parliament. The current Scottish Government won an overwhelming majority, a majority that overwhelmed all of the other unionist parties in the Scottish Parliament in 2011 on a manifesto that pledged to deliver a referendum on the issue of independence. Of course we can say that was beyond the competence of that Parliament and we can make all these clever arguments, but actually we were left with a democratic problem. The answer to that problem—we have to face up to the political reality of that—is to give the Scottish Parliament the power to run this and then deal with the issues in that context.

My second point is about the way in which we are proceeding. I agree with all of the points that the Constitution Committee has made, which are essentially criticisms of the way in which the Edinburgh agreement was concluded and presented and the lack of parliamentary involvement, scrutiny and engagement in that. But that agreement has now been made. We have to decide whether to respect that agreement made by the UK government leadership and the leadership of the Scottish Government. We have chosen to respect it, and I think that is right. It appears that we have here an order that we have a role to play in, which is what we are doing now. We also have an interesting constitutional linkage between the order and the agreement, the status of which appears to be a matter of dispute. I say that because I understand that the principal legal adviser to the Scottish Government is describing the agreement in a very particular way that is in contradiction to the way in which it is being described here. What is the legal status of the Edinburgh agreement? Can it be used by those who seek now to use it as some sort of legal platform to allow them to do other things, or is it, to paraphrase what the Secretary of State for Scotland said, simply an agreement between the UK Government and the Scottish Government as to how the referendum is to be run?

That leads me on to my third point, which is directly about the question. I will be astonished, as I think everybody will be, if the Electoral Commission does other than advise the Scottish Government that the draft question that they have proposed is inappropriate and will have to be changed quite radically, for all of the reasons that we have heard. The noble Lord, Lord Forsyth of Drumlean, in an excellent speech, described it as a misleading question. The fundamental problem with it, from my point of view, is not that it is misleading but that it is leading—leading in the way in which lawyers deploy that word: it is a question that begs its answer. A question that can instinctively be answered yes, as the noble Lord, Lord Stephen, suggested, is a leading question. In certain parts of the conduct of legal proceedings, we have a history and a tradition of not allowing those sorts of questions to be asked because they lead the witness to an answer. We do that for the very good reason that in certain circumstances, when people are engaged in that kind of a relationship with an interrogator, they incline to say what the person wants to hear. So it is a leading question, and I cannot for the life of me believe that the Electoral Commission will say that it is an acceptable question.

The real issue is whether the combination of this order and the agreement that the UK Government have extracted from the Scottish Government lead to the Scottish Government putting before the Parliament that they control effectively a proposal in a Bill for a question that reflects the advice that the Electoral Commission has given. In other words, will they respond properly to that advice? Whether we can have confidence that the man who leads the Government at the moment can be trusted to do that or not, we need to know that there is some form of audit or enforcement of that process that goes beyond our ability to be able, at some future election, to make the nationalists pay the price for what they did then, as the noble Lord, Lord Forsyth, said.

In those circumstances, is it legitimate to consider that a refusal to take that advice and an insistence on a question—a question which the Electoral Commission said was entirely inappropriate and leading and misleading for that reason—is reviewable in a legal sense in the light of the agreement that the Scottish Government have entered into with the UK Government? I ask that not because I am such a clever lawyer that I have worked it out for myself, but because I had an informal conversation with one of the leading legal brains in this country, whom I will not identify, who suggested to me that such a decision would be reviewable. If there is a preponderance of that view among other leading lawyers in the United Kingdom, that will be enough to ensure that the Scottish Government behave in the way in which we want them to.

That is an example of exactly the sort of thing that it is quite legitimate for us as politicians and the UK Government to be exploring publicly in this environment. When we debated the Scotland Bill we had concerns about what the Government would agree with the Scottish Government. We set them off, in a sense, with a mandate not to do certain things. They have to be congratulated on coming back and meeting a substantial part of that mandate. The noble and learned Lord who will be responding to this debate deserves a significant degree of credit. The way in which he conducted himself in the early stages of this controversy, particularly the speech he made at the University of Glasgow, changed the whole tenor of the debate in Scotland. He carefully and calmly pointed out the legal basis of the powers of the Scottish Parliament and of the UK Government in the devolution settlement. He did the same thing on Scotland’s potential membership of the European Union, in a speech he skilfully gave in Edinburgh, and changed the debate.

However, there are still some issues for which we could use the same sort of devices to shift in a way that would allow us to have the confidence that this referendum would be legal, fair and decisive when it is conducted.

[Lord Forsyth of Drumlean]

I am not a lawyer and I wonder whether the noble Lord might give me some free legal advice. I asked my noble and learned friend why the Edinburgh agreement was not linked to the order. Perhaps naively, I assumed that it was to avoid any litigation. This whole process was started on the basis of trying to get a legal base that would avoid any legal challenges interrupting the process. Is the noble Lord arguing that there would be the opportunity for litigation if it was linked, or is he arguing that there might be an opportunity even if it was not linked?

[Lord Browne of Ladyton]

There is at least an issue worth exploring as to whether, with the current arrangement of an agreement—a public agreement, which raises a level of expectation—and the order, if the Scottish Government behave in a particular way, the decision to do so might be judicially reviewable. I do not look forward to the prospect of getting bogged down in litigation which might end up in the Supreme Court, for the obvious reasons of the relationship between the Supreme Court and the Scottish Government. I do not want to resurrect all that, but if there is something in this—I think there may be—the very fact that it is being aired in the public domain with reliable, informed and trustworthy legal advice, such as the sort of advice that the noble and learned Lord, Lord Wallace, gave publicly on previous issues of controversy, could well settle these issues so that we could have confidence that we were moving forward. That is my point.

My final point is that at one stage not too long ago we were led to believe that the UK Government would deploy their resources in such a way that we would get a series of papers that would set out their view on the implications of independence for Scotland and its separation from the rest of the United Kingdom. That information is crucially important to the debate. I hope the noble and learned Lord, Lord Wallace, will take the opportunity when he replies to the debate to indicate to the House where we are in the expectation of that. We know that the Scottish Government are deploying all of their resources towards the objective of a yes vote in the referendum in 2014. There is no reason at all why the UK Government, whose policy is to keep the United Kingdom together, should not deploy extra resources in order to achieve that objective. We should be utterly open about that. The sooner the Government are able to do that, to disaggregate that information from the information that only they hold for the rest of us to be able to deploy in this debate, the better. I am delighted that we have this order now because we are getting to the meat of the issue. I am desperate to get to the meat of the issue, but I want to be in a position where I can make arguments that are convincing.

--- Later in debate ---

[Lord Steel of Aikwood]

My Lords, when my noble friend Lord Forsyth began his speech he said to my noble friend the Minister that if he were on a charge of murder he would happily employ my noble friend as his defence counsel. I hope my noble friend is honing his skills because they may be needed. I get the impression that my noble friend Lord Forsyth has a completely unhealthy obsession with the First Minister of Scotland, and it is not one that I share. It may go back to the fact that they were at university together, but I thought that his otherwise powerful speech was spoilt by too many references to one individual of whom we should not be afraid.

[Lord Forsyth of Drumlean]

I am certainly not obsessed with the First Minister but I think it is legitimate to point out that when my noble friend talks about the Scottish Parliament and so on, we all know that the Scottish Parliament is completely dominated by the First Minister. None of the members of the SNP is able to say a word but by his leave. So it is important to realise that, when we think we are devolving power to the Scottish Parliament, we are talking about giving power to Alex Salmond because he calls the shots.

[Lord Steel of Aikwood]

My noble friend has just repeated the point I am trying to make—that he is totally obsessed by one individual. I agree with the noble Lord, Lord Browne, who pointed out that, whether we like it or not, the SNP secured the democratic mandate and this order enables it to carry that out and to hold the referendum. For that reason I support the order.

There are lessons to be learnt from the mistake—the misjudgment—that has been made to keep postponing the process to 2014. This has been mentioned by several other speakers. It is important to notice the difference between this situation and the one in Quebec: during the two years that we have been debating this issue, the support for independence has been going down, not up. This is extremely significant. I suggest that the reason it has been going down is that, quite apart from the 35 questions from the CBI which the noble Lord, Lord Nickson, referred to, there have been three major issues on which the Scottish Government have been found wanting. One already referred to is the legal advice—or rather lack of it—on joining the European Union.

I remember the SNP campaigning very strongly on independence in Europe—in other words, it was not only going to join the European Union, it was also going to sign up to the euro. That has suddenly disappeared: I cannot think why. The SNP is no longer advocating joining the euro. That uncertainty about the relationship of a future independent Scotland with the European Union—on which there was an interesting, long interview this morning on Radio 4—is one of the reasons why support has slowly withered away. The second reason, which is related to it—

--- Later in debate ---

[Lord Forsyth of Drumlean]

Before the noble and learned Lord leaves the topic of the Electoral Commission—

[Lord Wallace of Tankerness]

I am going to come back to it.

[Lord Forsyth of Drumlean]

Well, perhaps, when he comes back to it, he can answer the question whether it was ever part of the British Government’s negotiating position to require the Scottish Government to accept the advice of the Electoral Commission on the question.

--- Later in debate ---

[Lord Wallace of Tankerness]

I had indicated that I would not defend the question that had been put forward. It would be appropriate for the Electoral Commission to indicate that. I was asked about time; as was indicated by the noble Lord, Lord McAvoy, there is a timeline. My noble friend Lord Forsyth suggested that the legislation for the referendum would not come until after the White Paper. My understanding is that if this House, and subsequently, the Privy Council, approve the order next month, the Bill will be presented to the Scottish Parliament in March. The Bill cannot in fact be presented to the Scottish Parliament until such time as this order has been approved, which is why the timing of it is as it is.

The important point with regard to the question is that what has been done by this order, in transferring the legal competence to the Scottish Parliament, is such that the nature of the question and the advice of the Electoral Commission will go to the Scottish Parliament. It is not proper, and it would fuel that sense of grievance, if somehow or another we said “We’ll give you the competence to legislate for this, but only provided that we can write or prior-approve the question for you”. That would lead to a very strong sense of grievance, and would put us, who want to argue the case for our United Kingdom, on the back foot in many of the ensuing debates.

I very much hope that common sense will prevail, and that the sense of achieving a decisive outcome will prevail with the Scottish Government and Parliament. As the noble Lord, Lord Reid, indicated, they will pay a very serious political price if they do not do so.

[Lord Forsyth of Drumlean]

Does the Minister really mean that it was right for the Electoral Commission not to give its advice to this House and the other place on the intelligibility of the question proposed by the Scottish Parliament, and that it would be wrong for us to comment on it? If we had had the Electoral Commission’s advice today—it must be provided by 1 February—quite a long time would have been saved, because we would have known what the position was. Surely we have not got to the position where we are so afraid that what we are doing will be misrepresented that we cannot do our work. Of course we cannot decide the question, but surely it would have been entirely appropriate for us to have the opportunity to comment on the question in the light of the independent advice from the Electoral Commission.

[Lord Wallace of Tankerness]

My Lords, a number of questions are rolled up into that. First, that is not the obligation of the Electoral Commission—there is no statutory duty or anything else for it to provide the answer by 1 February. I cannot remember which noble Lords made the point that your Lordships’ Constitution Committee had produced a report in a relatively short period of time, so why could the Electoral Commission not do the same?

The task of the Electoral Commission, among other things, is to go out and sample the question, which is not something, with all due respect, that the Constitution Committee intended to do, and neither would we expect it to do so. There is, therefore, a piece of work to be done in testing the question for its intelligibility, whether it is leading or misleading, whether it is neutral or whether it can be understood by those who will be asked to answer it in the referendum. I do not believe, therefore, that there was somehow some obligation on the Electoral Commission to rush that. I can hear the criticisms now if people thought that it had in some way been rushed.

Neither my noble friend nor any other noble Lord will be inhibited from commenting on the report of the Electoral Commission, which will be published and very much in the public domain. I will come to the noble Lord, Lord Sutherland, in a moment. There is no doubt that it is a matter for the Scottish Parliament to determine. There will be every opportunity for voices to be expressed as to what the Scottish Parliament should do in the light of the advice from the Electoral Commission.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, the noble Lord makes an important point. I will certainly ensure that his comments and the general sense of the House is drawn to the attention to the Ministry of Defence. No doubt Questions can be asked to ensure that we live up to that.

Finally, my noble friend Lord Forsyth quite properly said that there should be no room for complacency. That was echoed by other noble Lords, including the noble Baroness, Lady Liddell, and the noble Lord, Lord Empey. I could not agree with them more. I have said—although I do not think it was from the Dispatch Box—that the biggest enemy that those of us who wish to remain part of the United Kingdom have is complacency. We must guard against it, not simply because I want to win—I want to win very convincingly indeed. I certainly take the point about differential turnout made by the noble Lord, Lord Empey, and very much believe that we should guard against complacency.

My noble friend Lord Forsyth and the noble Baroness, Lady Liddell, asked about information. I suspect that we will not get a completely neutral arbiter, although some bodies are producing evidence from a more neutral point of view. The noble Lord, Lord Nickson, who I think is a former chair of CBI Scotland, appropriately raised the pertinent questions that CBI Scotland is addressing to the Scottish Government.

The Government have made it clear that we will be publishing material to provide information, not least about the number of jobs provided by the defence industry and what benefits being part of the United Kingdom bring to Scottish security. It will also set out facts, which are perhaps currently unknown or often just taken for granted. In that regard, it will include the importance of our position in the world. Scotland is part of the United Kingdom which punches much above its weight in terms of our population and because of our history, to which Scotland has contributed. It will talk about the protection of our citizens. It will talk about the many economic benefits to the United Kingdom.

The first of those papers will be published in the next few weeks, and we will publish further papers throughout 2013. I hope that that brings important information, which we will all be able to use in our arguments for the furtherance of the United Kingdom.

My noble friend Lord Forsyth and I were both elected to the other place 30 years ago this year, and I have known him all that time. We have disagreed about a number of issues, not least Scotland’s constitutional future, but I have always respected where he comes from on that and the important issues that he has raised this afternoon. One issue on which we can join together is that it is very important that we join together people right across this Chamber who believe that Scotland is better as part of the United Kingdom and the United Kingdom is better with Scotland in it; that we share a common heritage; that we share common social bonds; that we have a shared cultural heritage with, fundamentally, shared political values; and that we can defend them much more effectively in an uncertain and challenging world when we are working together. It is in that spirit that I want to argue that case, and I urge your Lordships to approve the order.

[Lord Forsyth of Drumlean]

My Lords, what a wonderful debate we have had. It is pretty clear to me that there is a consensus in all parts of this Chamber— bar one, if I may say so—about the need to have a referendum campaign that is seen to be fairly conducted and where there is no dispute about the result at the end of the day.

As I said at the beginning, I do not propose to divide the House. I think that that would be a huge error on my part, because it might give the impression that we are not as united as we are on these matters. However, I say to my noble and learned friend—we have been friends for a long time, if opponents, which we are not now, although we were earlier in the week; it is very difficult to work out what the nomenclature of this week should be—that he has taken a risk, a gamble, on being able to ensure that we get a decent question and proper rules for the referendum. I am prepared to withdraw my amendment and back his judgment. If it turns out to be wrong, he can expect some very vigorous debates in future. I beg leave to withdraw my amendment.

Amendment withdrawn.

Tabled by

[Lord Forsyth of Drumlean]

As an amendment to the Motion in the name of Lord Wallace of Tankerness, at end to insert “and regrets that debate in Parliament on the draft Order is taking place before the publication by the Electoral Commission of its advice on referendum campaign funding and on the proposal from the Scottish Government that the referendum question be ‘Do you agree that Scotland should be an independent country?’, advice which is required to be published by 1st February”.

Amendment to the Motion not moved.

Scotland: Referendum

Lord Forsyth of Drumlean Excerpts

Wednesday 10th October 2012 Lords Chamber

Asked By

[Lord Forsyth of Drumlean]

To ask Her Majesty’s Government whether, before the Prime Minister meets the First Minister of Scotland on Monday 15 October, they will clarify whether it is proposed to extend the franchise in any referendum on Scottish independence to 16 and 17 year-olds and, if so, by what legislative means; and what are the implications for UK electoral law.

[Lord Forsyth of Drumlean]

My Lords, I beg leave to ask a Question of which I have given private notice.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, people in Scotland deserve a referendum on Scottish independence that is legal, fair and decisive. There has been substantial progress made towards an agreement, but details are still under negotiation between the two Governments. The Government will ensure that both Houses of Parliament are kept fully informed, and the order required to provide legal competence to the Scottish Parliament will require the approval not only of the Scottish Parliament but of both Houses, as well as Her Majesty in Council.

[Lord Forsyth of Drumlean]

Perhaps I may respectfully suggest to my noble and learned friend that he has not answered my Question. Matters of electoral importance and the extension of the franchise are not matters to be carried out in hole-in-the-corner negotiations, however senior the parties. If the franchise is to be extended in Scotland for a referendum, is it not inevitable that we will have to extend it to 16 year-olds for all elections throughout the United Kingdom? This matter has huge implications, not least that it will bring politics into our schools. If the Government are proposing to do that, would it not be proper for them to issue a paper for consultation, to consult widely and to make no commitments whatever until they have done so?

[Lord Wallace of Tankerness]

My Lords, I assure my noble friend that there is nothing inevitable about what he says. I will make clear the position. The franchise for all parliamentary elections to the United Kingdom Parliament and to the devolved Parliaments has been set by Westminster. There are no plans to change this. The franchise for referendums is set out in the legislation that enables each referendum to take place. Noble Lords will recall the Parliamentary Voting System and Constituencies Act and our debates on the franchise for the AV referendum last year. If we agree to transfer power to the Scottish Parliament to hold a referendum, it is they who will determine the franchise—as is the case for elections and referendums on matters that are already devolved. It is no secret that this has been one of the issues in substantive discussions that have taken place between the United Kingdom and Scottish Governments. However, any decision—should it ever happen—by the Scottish Parliament to allow 16 and 17 year-olds to vote in an independence referendum would not affect the franchise for parliamentary elections.