Scotland Act 1998 (Modification of Schedule 5) Order 2013

Debate between Lord Kerr of Kinlochard and Lord Crickhowell

Wednesday 16th January 2013 Lords Chamber

[Lord Kerr of Kinlochard]

My Lords, my view of the Edinburgh agreement is closer to the noble Lord’s than that of the noble Lord, Lord Stephen. I scored the Edinburgh agreement a three-to-one win to the First Minister of Scotland. He seemed to lose on the number of questions but he won on the franchise, which is not a very important point; he won on the date, a more important point; and he won on the big point, which is the question itself. It is to that issue that I want to come back. I shall follow what was said by the noble Lords, Lord Sutherland of Houndwood and Lord Browne of Ladyton, and ask the Minister for a view on the internal wording of the Edinburgh agreement and its significance. I am referring to paragraphs 8 and 12.

In paragraph 8 we are told:

“Consistent with provisions in PPERA”,

the Electoral Commission will review the wording for its intelligibility. I do not know why these words are there but they worry me. Paragraph 12 has a straightforward reference to the PPERA, which gives the Electoral Commission responsibility for,

“commenting on the wording of the referendum question”.

What is the remit given to the Electoral Commission? The Constitution Committee’s excellent report—I am grateful to the noble Lord, Lord Crickhowell, for reading from it—shows that that committee, too, is nervous on that point. It says:

“We trust and believe that the Electoral Commission will be rigorous in assessing the question and will give candid and fearless advice on the wording proposed by the Scottish Government”.

It says that,

“the Electoral Commission will consider whether the referendum question … presents the options clearly, simply and neutrally … we would expect any departure from the Electoral Commission’s recommendations on the wording of the question to be robustly scrutinised. We hope that there will be no such departure”.

I share all those sentiments, obviously.

Why is the word “intelligibility” there? Why is it necessary to have the narrower definition of the role of the Electoral Commission? It is easy to envisage a question that is completely intelligible but also leading or misleading. I am nervous about the role of the Electoral Commission in this respect. I do not want to exaggerate the point. It would be resolved if the challenge of the noble Lord, Lord Sutherland, were accepted. We need to know the view of the Edinburgh Parliament in principle on what it would do—not when it has seen the language but its view of the language produced by the Electoral Commission.

[Lord Crickhowell]

The noble Lord’s question is particularly apposite as to why this limited reference was made when one considers that the Electoral Commission in 2009 set out the referendum question assessment guidelines, which included:

“Is the question written in neutral language, avoiding words that suggest a judgement or opinion, either explicitly or implicitly?”.

That takes it much further than the question that has just been raised by the noble Lord.

[Lord Kerr of Kinlochard]

That is precisely the point that I am trying to make. Is the reference to “intelligibility” in some way limited to it or could it be construed in a court of law as in some way limiting the normal role of the Electoral Commission and its role envisaged in 2009?