Constitutional Law

Jim McGovern Excerpts

Tuesday 15th January 2013 Commons Chamber

[Michael Moore]

The hon. Gentleman highlights an important point. He is right to suggest that, if this House and the other place agree this order and it is passed, that will transfer responsibility for the referendum totally to the Scottish Parliament.

Following the respective consultations, a period of discussions between Scotland’s two Governments led to the signing of the Edinburgh agreement on 15 October. I will return to the other important elements of that agreement shortly, but first I want to deal with the order itself.

The order is made under section 30(2) and (4) of the Scotland Act 1998. It inserts a new paragraph 5A into part 1 of schedule 5 to the Act. Part 1 provides, among other things, that the Union of the kingdoms of Scotland and England is reserved to the UK Parliament. New paragraph 5A will ensure that the reservation does not apply to a referendum on independence, provided that the referendum meets the requirements set out. Those requirements are for a single-question referendum, on the subject of independence, to be held before the end of 2014, and without any other referendum provided for by an Act of the Scottish Parliament being held on the same day.

The order also makes provision in respect of public referendum broadcasts and free mailshots, which would otherwise be outside the legislative competence of the Scottish Parliament. Under the Political Parties, Elections and Referendums Act 2000—PPERA, as we know it —referendum campaign broadcasts can be made only by or on behalf of a designated campaign organisation. The order applies that provision of PPERA to an independence referendum. That means that the restriction in PPERA on who can make referendum campaign broadcasts can apply to the independence referendum.

The agreement in 2006 between the Secretary of State for Culture, Media and Sport and the BBC requires the BBC to broadcast referendum campaign broadcasts, as defined by PPERA. The provisions of the order mean that the BBC will have the same obligations and responsibilities in respect of independence referendum campaign broadcasts as it would have in respect of any PPERA referendum broadcasts. Under PPERA, each designated campaign organisation can send a mailshot to every elector or household without being required to pay the postage costs. That service is provided by Royal Mail and the costs are recovered from the Consolidated Fund. The order applies those provisions in PPERA to an independence referendum. It specifically provides that the cost to the Royal Mail of providing the service will be recovered from Scottish Ministers.

The section 30 order that we are debating today will enable the Scottish Parliament to legislate for a legal referendum. The Scottish Parliament has already considered the order and approved it unanimously. If the order is approved by both Houses of this Parliament, it will enable the Scottish Government to introduce a referendum Bill setting out the wording of the question, the date of the referendum and the rules of the campaign for the Scottish Parliament to consider. 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.

However, our agreement does not just make the referendum legal and respect the devolution settlement. It also sets out the conditions that are necessary and that have been agreed between the UK and Scottish Governments for the referendum to be fair and decisive. In this context, it is important to consider the memorandum of agreement alongside the order. The agreement is a statement of political intent by Scotland’s two Governments. It commits us jointly to an approach to, and the delivery of, the independence referendum which will ensure that the proceedings are fair and that the outcome is decisive. With permission, Mr Speaker, I will therefore briefly describe that broader agreement.

At the heart of any fair referendum must lie a set of rules and processes that have the support of both sets of protagonists. For the outcome to be legitimate, both sides of the argument must have faith in all aspects of the referendum. That is particularly true when we are considering the future of our nation. The agreement therefore sets out the commitment of both Governments to the normal rules and procedures that govern referendums in the UK, as contained in PPERA. A core part of the PPERA process is the central role of the Electoral Commission. The two Governments have agreed that the Electoral Commission must review the proposed referendum question, and that its report will be laid before the Scottish Parliament. That process is under way. Since PPERA came into force, there have been three referendums held under that legislation.

[Jim McGovern (Dundee West) (Lab)]

Does the Secretary of State agree that, if the Scottish Government were to disagree with the Electoral Commission on what form the question should take, that position would be open to a legal challenge?

[Michael Moore]

I think that there would be a price to pay for that. If the hon. Gentleman will be patient, I shall return to that issue shortly.

The three referendums held under the auspices of the Electoral Commission have been: the north-east regional assembly referendum in 2004; the referendum in Wales in 2011 on further devolution; and the referendum on the voting system for the UK Parliament, also held in 2011. In all three cases, the Electoral Commission reviewed the Government’s proposed question and provided its advice. The Government responded by revising the questions in line with that advice. Of course, in the past, some Members on the SNP Benches have referred to the wording of the proposed question for referendums on local council tax.

The Government made it clear when they brought forward the regulations to provide for those referendums that discussions were ongoing with the Electoral Commission on the wording of the question. Revised regulations were tabled on 8 January and the Electoral Commission has confirmed that it is content with the revised wording.

Under the terms of the Edinburgh agreement, it will be for the Scottish Government to respond to the advice of the Electoral Commission. The Scottish Government have committed to putting before the Scottish Parliament their response to the Electoral Commission’s recommendations. That means that the Scottish Government will be held to account by the public and Parliament alike for how they respond to that advice. All Opposition leaders in the Scottish Parliament have stated their intention to abide by the Electoral Commission’s judgment in this case. To do otherwise would be a significant step, for which there would be a political price.

As I have set out, both Governments recognise that the referendum process must be seen to be fair by both sides of the campaign. That applies across the process, but particularly to the financing of the campaign. As part of the Edinburgh agreement, the Scottish Government committed to consulting the two campaign organisations for their views before proposing spending limits for the referendum campaign to the Scottish Parliament.

The agreement ensures that the independent Electoral Commission will provide the Scottish Government with advice on the appropriate spending limits for the two campaigns and the parties. That is what has happened in previous referendums, such as the 2011 referendum in Wales on further powers for the Welsh Assembly. In that referendum, the Electoral Commission recommended that the spending limit for designated campaign organisations should be set by reference to the expenditure limits that apply to elections to the relevant legislature. In its response to both Governments’ consultation documents, the Electoral Commission provided its view that the model remains appropriate for the Scottish independence referendum. The Electoral Commission has met the parties represented in the Scottish Parliament to seek their views on the finance arrangements.

When the Scottish Government set out their final proposals for financing the referendum campaign in the referendum Bill, they must set themselves aside from their own campaigning interests and recognise that their approach is being watched by all of Scotland, and indeed by the international community. That is a point that the Deputy First Minister recognised when she rightly said that the poll must satisfy the highest international standards. All people must believe that there is a fair process and, therefore, a fair result.

Both Governments agree that the basis for the franchise will be that for the Scottish Parliament elections—that is, those UK or EU citizens who are resident in Scotland. That is set out in the Edinburgh agreement. In addition, the Scottish Government propose to give 16 and 17-year-olds the right to vote. I recognise and respect that there are differing views on that issue in the House. My party, the Liberal Democrat party, supports the principle of 16 and 17-year-olds participating in all elections. Our coalition partners do not, however. Views on both sides of the argument can be found on both sides of the Chamber.

In devolving the power to hold the referendum, however, we respect that this is a matter that should be debated and determined by the Scottish Parliament. Indeed, where the Scottish Government and Parliament have the power to hold referendums and elections already, they have chosen to allow some 16 and 17-year-olds to vote. However, the Scottish Parliament’s decision with respect to health board and crofting commission elections in Scotland has set no precedent for any elections for which the UK Government are responsible. I fully expect that the Scottish Government’s proposals will be debated robustly in the Scottish Parliament. However, let me be clear that it will be for the Scottish Government to make the case for this proposal in the Scottish Parliament and to deal with the issues that arise. Let me be equally clear that any decision taken by the Scottish Parliament for the referendum will not affect the voting age for parliamentary and local government elections in the United Kingdom. That remains the responsibility of this Parliament alone to determine.

[Michael Moore]

That issue was discussed during the negotiations leading up to the Edinburgh agreement. However, as we made plain in the agreement and as I have repeated this afternoon, as we are devolving that power, it is for the Scottish Government to bring forward their proposals. That will require legislation and that legislation will be properly scrutinised by all of us and, in particular, by MSPs. That process is yet to get under way.

[Jim McGovern]

When I have visited schools in Dundee recently, it has been pointed out to me that it would be ridiculous if 16 and 17-year-olds were allowed to vote on the future of the country, but could not buy a packet of sparklers on Guy Fawkes night.

[Michael Moore]

That is a classic example of the debate that rages over whether 16 and 17-year-olds should vote in elections. I take it from that intervention that the hon. Gentleman is not a supporter. However, this is a matter for the Scottish Parliament.

--- Later in debate ---

[Angus Robertson (Moray) (SNP)]

Today’s proceedings are historic, and it is important to stress that, notwithstanding the din and smoke of political battle and some of the differences and questions aired today, they represent a triumph for democracy, for the democratic process and for a democratic mandate. So far as I am aware, every political party in this House is in agreement about the section 30 order, so I will focus on what we, as democrats, all share: respect for the electorate’s right to determine their governance. There can be no greater democratic choice than whether a people wish their nation to determine for itself how it is to be governed.

If we take half a step back from our party politics, we can see that it is truly remarkable that, notwithstanding our differences, we will today agree that it is for the Scottish Parliament to take forward the arrangements for an independence referendum in 2014. That is remarkable for two stand-out reasons. First, Scotland’s constitutional progress has been a model of democratic, peaceful and civic politics. Secondly, the UK Government and Opposition are endorsing a legal, ordered and democratic path that can lead to Scotland becoming a sovereign state. Today’s agreement to transfer legal powers to the Scottish Parliament to make the arrangements for the biggest decision in 300 years is a huge milestone. It says much about the potential for further respect and equality between the Governments, Parliaments and peoples of these islands.

How have we reached the point of having this section 30 order? The Secretary of State rightly said the key is undoubtedly the result of the 2011 Scottish Parliament elections. The majority of Members returned, including those of the Scottish National party and the Scottish Green Party and the independent MSP Margo MacDonald, support Scottish independence. The scale of the victory was unprecedented. The SNP won every single mainland constituency seat in the highlands, every single constituency in Grampian and Tayside, and the majority of constituency seats in Fife, Lothian, Central, Glasgow and the west of Scotland. In the list vote, the SNP received more votes than the three UK parties combined and was first in all but three constituencies in the whole of Scotland. The result was so overwhelming that the leaders of all three UK parties in the Scottish Parliament resigned.

Given the scale of the victory, the parliamentary majority and the commitment to holding a referendum, it would be unimaginable in a 21st-century democracy not to be able to proceed with a referendum. The UK Government clearly understood that the Scottish Government would go ahead with a referendum, and the Scottish Government understood the advantages of an unambiguous process beyond any potential legal challenge. This shared understanding led to the historic Edinburgh agreement between the Governments, which was signed by the First Minister and the Prime Minister on 15 October 2012, and which has led to the section 30 order we expect will pass without Division today.

The key is to understand that, as far as I am aware, everybody has signed up to the Edinburgh agreement. First, they have agreed that the referendum will be made in Scotland, with the arrangements to be finalised in the Scottish Parliament. The fact that the agreement could be reached showed that the Governments can work together, truly in everybody’s interest, notwithstanding that we have different views on the potential outcome. The Scottish Parliament is the cockpit of the nation, and it is right that the issues of the franchise, the question, the referendum rules and the campaign spending limits should be scrutinised and taken forward there. Nobody has yet criticised the fact that the Government who introduced the legislation for the devolution referendum were in exactly the same situation as the Scottish Parliament will be after the section 30 order is passed.

[Jim McGovern]

The issue of the referendum question has been raised a couple of times. What will the SNP’s view, or that of the Scottish Government, be on the Electoral Commission’s advice? Will that advice be accepted or ignored?

[Angus Robertson]

The Scottish Government will be in exactly the same position as the UK Government are and have been in, including when the hon. Gentleman’s party was in government: the Scottish Government will listen to the advice of the Electoral Commission and the Scottish Parliament will then decide. The arrangement is exactly how it was in the past when his party was in government.

[Angus Robertson]

I have no doubt that the right hon. Gentleman will make his voice heard and that when the section 30 order is passed for Scotland, he will make those views clear. If he had a problem with what is being proposed, he would be opposing this evening’s section 30 order.

[Jim McGovern]

Will the SNP heed the advice?

[Angus Robertson]

Of course the Scottish Government will listen to the Electoral Commission’s advice.

--- Later in debate ---

[Mr Davidson]

I will accept the result, and if the result is that my constituency votes to remain with the United Kingdom, it should be allowed to do so. What better way is there of accepting the result? If we vote to remain with the United Kingdom and are allowed to do so, we would not contest the result in any way. I hope that has the merit of clarity.

I return to my role as Chair of the Select Committee and the question of the franchise. Properly, as I indicated earlier, this is a matter for the Scottish Parliament to determine, although we are uncomfortable with the fact that using the electoral register for local government means that EU citizens who are resident in Scotland but are not British citizens will not be able to vote in a British general election, but will be able to vote to break up the United Kingdom.

That is an anomaly with which we are not happy. It means, among other things, that somebody who arrived, say, from eastern Europe a couple of weeks, virtually, before the last registration date will be able to vote, whereas somebody who has lived in Scotland all their lives and has temporarily gone down to England or abroad might not be able to do so. We think in principle that those who have strong ties, commitments and loyalties to Scotland should be able to vote in the Scottish referendum. We have expressed that view. In line with the spirit of devolution, however, we want to leave it to the Scottish Parliament to determine exactly how that is handled.

[Jim McGovern]

As my hon. Friend knows, I am also a member of the Scottish Affairs Committee. Does he find it somewhat odd that the former England football captain, Terry Butcher, will be entitled to vote in the referendum, but Sir Alex Ferguson will not?

[Mr Davidson]

Indeed. These are anomalies and the Scottish Parliament has to show its maturity by being prepared to tackle them. There are no ideal answers in these circumstances. We must recognise that many of these issues are difficult and I will return to some of them, if I can.

The first issue that we want to tackle is that of 16 and 17-year-olds. This is properly an issue for the Scottish Parliament to handle. However, it is essential that the Scottish Parliament makes sure that if 16 and 17-year-olds are able to vote, they all are on the register. I recognise that there will be organisational difficulties. Administratively, the problems will be extreme. I am not entirely clear how we are going to avoid a situation where, potentially, 14-year-olds are registered.

--- Later in debate ---

[Mr Davidson]

I do not wish to name individuals, but a yes campaign is being established in America and I understand the suggestion that Tax Dodgers for Separation is about to be established in Monaco. Whether people will sign up to that group publicly is not clear, but we will monitor carefully where the money is coming from. We want to be clear about whether the SNP intends to name people abroad—whether tax dodgers or not—who contribute to its referendum funds. It has not given an unequivocal statement on that, to the best of my knowledge.

The proposed regulated period is 16 weeks only. It is interesting to note that the Scottish Government and the SNP have accepted the advice of the Electoral Commission on that matter. They are therefore not opposed in principle to accepting the advice of the Electoral Commission. We can only assume that it suits them in the circumstances. The Select Committee has said that the rules that govern the regulated period with regard to openness on donations and finance should also govern the unregulated period. So far, the two campaigns have indicated that they are minded to accept that, but we do not have that down in blood.

In conclusion—[Interruption.] It is true, as is being said by Members from a sedentary position, that the SNP Members have not yet returned to the Chamber.

[Jim McGovern]

I am sure that my hon. Friend will agree that it is deplorable that the SNP Members are not here. Does he agree that the party that claims to stand up for Scotland cannot even turn up for Scotland?

[Mr Davidson]

Exactly. Equally, the party that claims to stand up for Scotland cannot even sit down and listen for Scotland.

Let me be clear: the Scottish Affairs Committee is positive about what is being proposed. We welcome the fact that there will be a referendum. We welcome the clarification that the Scottish Parliament will be given the legal powers to conduct it, whereas it did not have those powers before. We congratulate the Secretary of State and his team, including the Under-Secretary of State for Scotland, and those in the Scottish Parliament who brought the deal about.

We support the deal not only as a matter of principle; we support it because we recognise the essential need to obtain losers’ consent. If they have had a hand in setting the rules, those who lose the referendum will not be able to claim that they were robbed. However, with that responsibility comes the need to ensure that the rules meet the gold standard. We are exceptionally concerned that the right of the Scottish people to have a fair referendum will not be met by the SNP. Those of us who have been elected by people in Scotland must not now wash our hands of this matter, but should continue to campaign to ensure that the referendum is fair and that the Scottish people make sure that anybody who tries to rig the referendum pays a heavy political price.

--- Later in debate ---

[Pete Wishart]

No, I am not giving way to the hon. Lady. When I came here today, I thought that we were going to have a good, positive debate. I thought that we all agreed that devolving this power to the Scottish Parliament under section 30 was a good idea, but what have we seen? We have had such a sour debate today. We have heard personal attacks, once again, on the First Minister—we do expect those. We have heard a surly acceptance of the fact that the Scottish Parliament has a right to deliver this referendum—a thing both Governments have agreed. I thought that today would be almost a joyous affair, which is why it has been so depressing to listen to one dreary speech after the next, and all the incessant and consistent negativity. [Interruption.] Here we go again, Mr Deputy Speaker. I really hope that the people of Scotland are watching this, because they have to see how Labour Members respond to these debates. They are not interested in listening to the other part of the debate, and it is very unfortunate that, again and again, we have to listen to these voices attempting to shut things down. I believe it is a pleasure and privilege to speak in today’s debate.

[Jim McGovern]

Perhaps the hon. Gentleman can tell us why his whole party disappeared and, presumably, watched the debate on television, rather than be here.

[Pete Wishart]

I do not know whether the hon. Gentleman was here at the time. I believe he is referring to the hon. Member for Glasgow South West (Mr Davidson), and I was there for 20 minutes of his speech—

[Jim McGovern]

On a point of order, Mr Deputy Speaker. I did not refer to any Member.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

That is not a point of order. Obviously, I am sure that hon. Members are desperate to get on to the debate on the section 30 order instead of picking each other off; I am sure that that is what we all want to hear.

[Pete Wishart]

Indeed, Mr Deputy Speaker. I do not know what the hon. Gentleman is referring to. If he wants to have another go, I am prepared to give way to him, but I had no idea what he was suggesting then.

[Jim McGovern]

It appeared to me that the whole SNP group disappeared earlier for quite some time, and presumably they watched the debate on TV. I did not refer to any other Member of this House being a factor in that.

[Pete Wishart]

Yes, I was out of the House—we have been here for five hours, and Members come and go outside the House. I do not understand what the hon. Gentleman’s point is.

--- Later in debate ---

[Pete Wishart]

That is probably the most important point the hon. Gentleman has made. It is the key; we have to ensure that we refer to everybody in as friendly a way as possible. He was right in his new year statement: respect is the key element as we go forward, and I hope that Labour Members in this House who still have a contribution to make will respect that.

It is fantastic. The Scottish Parliament will deliver a referendum to the highest standard—a referendum that not just the people of Scotland but people throughout the United Kingdom will be proud of. It will be a model of transparency, fairness and propriety, informed by consultation and independent expert advice. The rules will be fair for everything from finance to broadcasts and mailshots. The playing field has to be, and will be, completely level.

[Jim McGovern]

Will the Scottish Government adhere to the independent expert advice of the Electoral Commission?

[Pete Wishart]

We do not know yet what the commission has to say. We will find out. The standards of the Scottish Parliament on these issues will be exactly the same as those of this House. During the Scotland Bill, the Electoral Commission was given the task of testing the question and making sure the rules were fair. If I can find the quote, its advice to the House might help the hon. Gentleman. The commission conceded that it is for elected parliamentarians to decide. I have often heard Labour and Conservative Members say that the Electoral Commission advises, elected Members decide. It happens in this House and it will happen in the Scottish Parliament.