Scotland Bill

Lord Sewel Excerpts

Thursday 26th January 2012 Lords Chamber

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

My Lords, I thank the noble Lord, Lord Browne, for using the clause stand part debate to allow us to explore and examine what is intended by this clause and, indeed, what is not intended. I also thank my noble friend Lord Lang. I assure him that it was not my intent to try to stop him speaking. I think he knows full well that we genuinely expected the previous debate to be somewhat shorter than was the case. He is absolutely right to say that it was good that we started with a lengthy but very good debate which allowed numerous views to be expressed. It may well facilitate our consideration of these clauses.

This clause transfers to Scottish Ministers certain of the executive functions that are currently the responsibility of the Secretary of State relating to the administration of Scottish Parliament elections. It will enable Scottish Ministers to make general provision by order for the conduct and administration of elections to the Scottish Parliament, the questioning of such an election and the consequences of irregularities. The noble Lord, Lord Browne, asked me to be more specific about what the powers confer and what continues to be reserved. In the same spirit, my noble friend Lord Lang asked for some reassurances. As I have indicated, the Bill will transfer to Scottish Ministers some of the executive functions that are currently the responsibility of the Secretary of State. There is no corresponding widening of the legislative competence of the Scottish Parliament although, obviously, it will have a role in approving the subordinate legislation made by Scottish Ministers. So it is executive devolution rather than legislative devolution.

Specifically, Scottish Ministers will be able to make provision by order as to the conduct of Scottish Parliament elections, the questioning of such an election and the consequences of irregularities. This power includes making provision about the supply or otherwise dealing with the electoral register, the combination of Scottish Parliament elections with other elections falling within the legislative competence of the Scottish Parliament—the most obvious one being local authority elections—as well as the limitation of candidates’ election expenses. However, elements of the powers will remain the function of the Secretary of State: the franchise and the combining of Scottish Parliament polls with polls at other reserved elections. This will ensure that issues of constitutional importance continue to be dealt with by the UK Parliament.

I hope that reassures my noble friend that, because of its constitutional importance, the franchise will be reserved to the United Kingdom Parliament. He referred to 16 and 17 year-olds being able to vote. Such a situation is purely hypothetical. However, having different franchises for different elections held in a combined poll may not be as anomalous as my noble friend thinks. If a local election were held in a combined poll with a Westminster election, while he and I would have the ability to vote in local elections we would not be allowed to vote in a Westminster election, so you can already have elections which could be combined on the same day with a different franchise applying in each.

As regards the referendum, I remind my noble friend and, indeed, the Committee that the preference expressed by the United Kingdom Government in our consultation paper was that the franchise of the electorate for any referendum on Scottish independence should be that which applies at the Scottish Parliament elections. That same franchise applied at the 1997 referendum. We take the view that, if it was good enough to elect a Scottish Parliament in May last year, it is appropriate for a referendum.

In addition, the Secretary of State will retain the powers to modify the application of Section 7(1) of the Scotland Act, which sets out the modifications to the calculation of the regional figures which are made when a constituency poll is countermanded or abandoned, and to modify Section 8(7), which sets out what happens when the highest regional figure is the regional figure of two or more parties or individual candidates. This is about the election to the Scottish Parliament rather than an administrative part of it. It is about the election itself. That is why we have considered it appropriate to continue the reservation. The Secretary of State will also retain the power to make provision for the return of members of the Parliament otherwise than at an election.

The B3 reservation—that is, elections to the United Kingdom, European and Scottish Parliaments and the franchise at local government elections in Schedule 5 of the Scotland Act—will remain unchanged. The noble Lord, Lord Browne, asked whether that would lead to the fragmentation which the Gould report raised concerns about with regard to the operation of the 2007 Scottish and local government elections. All responsibilities for the effective conduct of a Scottish Parliament election are being handed over to the Scottish Government. I have indicated the nature of the functions being retained, which relate to the framework under which those elections are run—for example, the franchise and the electoral registration system—or to the reserved elections such as the parliamentary elections. We believe that the difficulties encountered in 2007 were the result of a unique combination of factors that is not expected to arise again.

It is fair to put on record that the 2011 elections were well administered, notwithstanding the fact that it was a combined poll with the AV referendum. That is to the credit of electoral administrators, who are now better co-ordinated through the electoral management board that both the UK and the Scottish Governments support. If one were to change the rules with regard to electoral registration and devolve that, you could then get fragmentation because you could possibly find yourself with different rules for electoral registration for Scottish parliamentary elections and for Westminster elections. I think we are agreed that, although the franchise may be different for each of these elections, it makes sense to have the one canvass subject to the one set of rules for electoral registration.

The noble Lord, Lord Browne, in referring to the previous report of the Scottish Parliament, asked about disqualification from membership of the Scottish Parliament. Section 15 of the Scotland Act allows Her Majesty to specify, by Order in Council, various office-holders who are disqualified from membership of the Scottish Parliament. At present, Scotland Office Ministers are responsible for preparing the draft legislation and presenting it to Her Majesty in Council, but it must first be approved by the Scottish Parliament. Clause 16 has been added in response to the legislative consent Motion in March last year, and will pass responsibility from Scotland Office to the Scottish Government, although the requirement for approval by the Scottish Parliament will remain.

We believe that devolving the elements of responsibility for the administration of elections as I have outlined is consistent with the Calman commission’s principle that these matters should be decided at a level closest to those affected, unless there are good reasons for determining them at a UK level. I have sought to try and make the distinction in respect of constitutional matters and where, in terms of electoral registration, it makes sense to get consistency across the United Kingdom.

[Lord Sewel]

Perhaps I may make one point. I do not want to keep on bringing the debate back to the present First Minister, but he has made clear over the years his animosity and antipathy towards this House. Would it therefore be possible under the arrangements that have been outlined for the Scottish Parliament to disqualify Peers from being Members of the Scottish Parliament? That would be a great shame because a number of Peers have distinguished themselves as MSPs.

[Lord Wallace of Tankerness]

No, my Lords, that would not be possible, as eligibility matters will remain reserved. I hope that on the basis of what I have indicated—