Scotland Act 1998 (Modification of Schedule 5) Order 2013

Lord Sutherland of Houndwood Excerpts

Wednesday 16th January 2013 Lords Chamber

My noble and learned friend repeated those words exactly in his introductory remarks this afternoon, and the issue was touched on by the noble Lord, Lord Reid, in his intervention. We have to get it over directly to the people of Scotland what is going on. That is why the point made earlier about the press reporting on these issues, if it can be persuaded to do so, is so significant. It is why we in this Parliament, in both Houses, must not drop this matter today having debated this order, but come back and debate the whole question of devolution for Scotland again and again during the coming months, so that these messages can be got over to the people of Scotland. I think it was the noble Lord, Lord Reid, who expressed confidence in the good sense of the Scottish people and the electors. I have always had a huge respect for what I call the “horse sense”, the common sense, of the electors, when all the facts are fairly and fully put in front of them. I am glad that in the other place yesterday the Secretary of State said that there would be plenty of opportunities to debate these issues again and again and to draw all the questions to the attention of the Scottish people. I hope that that will be the case in this House as well.

[Lord Sutherland of Houndwood]

My Lords, I very much welcome the opportunity given by the noble Lord, Lord Forsyth, to debate this issue. He is right to take the view that he has on the amendment and on whether it will be pressed. However, this is a very important debate and, as has been suggested, we must ensure that it is continued.

I want to make two points and then issue a challenge. The first point is about the question. I was invited by the three pro-union—as it turned out then—parties in Scotland to chair a small, expert group on proposing a question that would meet the criteria which we all accept. We had hoped that it would be a group invited by all four of the major parties in the Scottish Parliament, but the SNP declined to nominate someone. Such is the way of life.

We came up with a question that is rather different from the one the Scottish Government propose—different in two respects that have already been commented on. First, we rejected the rubric, “Do you agree?” Rather, we wanted a single statement, “Scotland should be an independent state”: either “yes” or “no”, or “I agree” or “I disagree”. That would very plainly settle the matter.

The second point was, of course, that we used the word “state” and not “country”. The point of the word “state” is that if you have a state, you must have a head of state, a constitution, and foreign relations—whether with the EU or with NATO or, in due course, with the Government in Westminster, not least because of your interest in the Bank of England.

It was suggested to us—we have offered this evidence to the Electoral Commission—that the word “state” is a bit complicated. However, I believe in the electorate. They will take account of what this means. It is not a technical term. As a country, we host the Commonwealth Games; as a nation, we play in the Five, or is it Six, Nations tournament; as a state, we have a constitution, a head of state and, more than that, we must have foreign relations that we negotiate with others. If one says that the electorate will not understand that difference, then they will not produce informed consent or informed dissent. It is up to those of us who are involved in this, and, for example, the wider press, to explain the differences and ensure that people understand what they are voting on. So that is the question. We have submitted that evidence to the Electoral Commission. I do not know whether it will accept it.

My next point relates to the role of the Electoral Commission. The noble and learned Lord, Lord Wallace, slipped from one phrase to another. He suggested that in previous referenda there was a question of responding to the advice of the Electoral Commission. It is one thing to respond and accept—which is the phrase he used—but he also used another phrase: that the advice was accepted in line with what the Electoral Commission said. Are they required to go in the general direction, or are they accepting the actual advice?

In the light of that, I want to finish with a challenge. Much has been made of the role of the Scottish Parliament in this. I challenge the Scottish Parliament to debate now, before the advice is out. It must say whether it will accept the advice of the Electoral Commission, and if not, say so—and say why, or why not. Then, at least, we will have the arguments and reasons laid out for the Scottish population to understand what kind of group this is. The Scottish Parliament is not the Scottish Government; it is not the SNP. I challenge it now to debate a Motion that it will or will not accept the advice of the Electoral Commission.

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[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.

[Lord Sutherland of Houndwood]

Simply as a matter of fact, the Electoral Commission has advised me that it will publish its report early in February.

[Lord Wallace of Tankerness]

That is helpful. However, it is important to understand that there is a body of work that it ought to do, and is doing, before it publishes that advice.

The question has been raised about the franchise. As I indicated to my noble friend the Duke of Montrose, it is a matter of primary legislation for the Scottish Parliament. If it chooses to extend the franchise to 16 and 17 year-olds, issues will arise out of that; it will need to ensure that the proper protection is given to minors whose names would appear on a roll. That would be the responsibility of the Scottish Parliament in any legislation which it brings forward.

I do not believe that that is the thin end of the wedge. If only legislation passed by the Scottish Parliament was, we would have proportional representation by single transferable vote for English local authority elections, but I have not seen a great rush in the Westminster Parliament to follow the Scottish Parliament in that constitutional development

Several noble Lords, including the noble Lord, Lord Reid, my noble friends Lord Stephen and Lord Cormack, and the noble Baroness, Lady Liddell, posed an important question about the vote for service personnel. The position is that the members of the Armed Forces and their spouses or civil partners are entitled to vote in elections, provided that they are registered to vote either by means of a service declaration or as an ordinary voter. Members of the Armed Forces will be able to vote in the referendum if they are on the register in Scotland either as a result of an address in Scotland or a qualifying address showing a connection to Scotland, such as service accommodation in Scotland; an address in Scotland where they would be living if they were not in the services; or an address in Scotland where they have lived in the past. The same rules apply to spouses and civil partners of members of the Armed Forces.

On the specific point raised by the noble Baroness, Lady Liddell, service personnel who are overseas at the time of the referendum who would otherwise be eligible to vote will be able to vote by post or by proxy. I understand that the Electoral Commission and the Ministry of Defence run an annual electoral registration campaign to inform personnel and their families in units around the world about such voting matters. I will certainly talk to colleagues in the Ministry of Defence in the next round of prompting of information to ensure that they remind service personnel of the referendum.