Scotland Act 1998 (Modification of Schedule 5) Order 2013

Lord Wallace of Tankerness Excerpts

Wednesday 16th January 2013 Lords Chamber

Moved By

[Lord Wallace of Tankerness]

That the draft order laid before the House on 22 October 2012 be approved.

Relevant documents: 9th Report from the Joint Committee on Statutory Instruments, 13th Report from the Secondary Legislation Scrutiny Committee, 7th Report from the Constitution Committee

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

My Lords, I beg to move that the draft order laid before the House on 22 October 2012 now be approved. I am grateful that we will have longer to debate the order than would normally be the case, which I think will be welcomed on all sides of the House. It certainly reflects the interest that noble Lords have shown in this order, not least the comments and contribution of your Lordships’ Constitution Committee whose report has made a very important contribution to the parliamentary process.

On 15 October last year, the Prime Minister, the First Minister of Scotland, the Deputy First Minister and the Secretary of State for Scotland signed an agreement on behalf of our respective Governments that will, if this order is approved by this House, allow a legal, fair and decisive referendum to take place on Scottish independence. I think it important that we acknowledge at the outset of this debate just how far we have come. Your Lordships have discussed and debated this and related issues on many occasions. We all recognise that we face perhaps the most important political choice that people have taken in Scotland in more than 300 years.

Calls for separation from the rest of the United Kingdom are not new, but the process that we are debating today began with the Scottish National Party’s victory in the May 2011 Scottish parliamentary elections and its manifesto pledge to hold an independence referendum. In May 2011, the Scottish Government claimed they had the right to bring forward legislation in the Scottish Parliament, without any role for this Parliament. The Scottish Government proposed the establishment of a separate Scottish Commission to oversee the process, and there was an expectation that there would be a multi-option referendum. Indeed, just 12 months ago, when the United Kingdom Government launched their consultation paper, that was very much still the case.

From the very beginning, this Government acknowledged the political mandate that the SNP had secured for a referendum. However, we also set out our very firm view that any referendum had to be legal, fair and decisive. As I set out to your Lordships just over a year ago, the Scotland Act 1998 is very clear: the Scottish Parliament cannot legislate on matters reserved to this Parliament. That includes “the constitution” and, specifically,

“the union of the Kingdoms of Scotland and England”.

That is why we published a consultation paper on 10 January 2012 which set out the different ways to deliver a legal referendum. Our consultation paper set out the available legislative options and stated that our preferred option was to provide the Scottish Parliament with the legal competence to legislate itself. This received the overwhelming support of those responding to our consultation. More than 70% of respondents agreed that the Scottish Parliament should be given that power. Your Lordships’ Constitution Committee in its first report on the referendum in February 2012 welcomed the proposal to use a Section 30 order to confer on the Scottish Parliament clear competence to legislate for the referendum.

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[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.

[Lord Cormack]

I am most grateful to the Minister. According to the agreement, all the commission has to determine is whether the question is intelligible. It is not a matter of whether it is fair, or loaded, but whether it is understandable. Is that sufficient?

[Lord Wallace of Tankerness]

My Lords, the position is that the Referendum Question Assessment Guidelines published by the Electoral Commission in November 2009 set out its approach to reviewing questions for intelligibility. These guidelines state:

“A referendum question should present the options clearly, simply and neutrally. So it should: be easy to understand; be to the point; be unambiguous; avoid encouraging voters to consider one response more favourably than another; avoid misleading voters”.

That is the Electoral Commission’s guidance to the intelligibility question which my noble friend raised; those are the criteria I expect it to apply having regard to weighing up and assessing the question that has been submitted by the Scottish Government to the Electoral Commission. With regard to this question, we have sought to put the position of the role of the Electoral Commission and the role of the Scottish Parliament on exactly the same terms as would be the case if the United Kingdom Government were proposing a referendum, where we put the referendum to the Electoral Commission for its assessment on the same criteria. I will come on to that in a bit more detail in a moment. It will report to Parliament and ultimately Parliament will decide. We are seeking to put the Scottish Parliament in exactly the same position, vis-à-vis the question and the Electoral Commission, as the United Kingdom Parliament would be in any referendum which the United Kingdom Government were proposing.

[Lord Foulkes of Cumnock]

Would the Minister care to give his opinion about the question as currently proposed by the Scottish Government, which is,

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

All the polling evidence, and one can consult MORI and others on this, shows that this kind of phraseology is biased and leads towards a particular outcome. It therefore fails the test on that basis.

Secondly, the Minister said that the referendum should be decisive. I am not clear what is meant by,

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

It does not refer to membership of the United Kingdom in any way whatever. I have spoken to some of my colleagues here, who think Scotland is currently an independent country in many senses. Is it not unintelligible, and therefore not decisive in any way?

[Lord Wallace of Tankerness]

My Lords, the key thing is that the Electoral Commission makes that judgment. I have heard the points made—with considerable conviction—by the noble Lord, Lord Foulkes, and others, but at the end of the day it is for the Electoral Commission to make that assessment. What it thinks about it, having done the testing on it, is far more important than what Ministers in the United Kingdom Government think.

Until relatively recently, I was the spokesperson for the Wales Office in your Lordships’ House and therefore during the referendum on the extension of powers for the Welsh Assembly. I could see at pretty close quarters the work done by the Electoral Commission in framing the question for that referendum—the noble Lord, Lord Wigley, will recall it. I was very impressed—not least because it faced the additional issue of the question being in Welsh as well as in English—by the thoroughness with which the Electoral Commission dealt with that. I was also impressed by the way in which my right honourable friend the then Secretary of State for Wales responded to the terms of the Electoral Commission’s report.

[Lord Kakkar]

Was it not the case both that the Electoral Commission looked at the specific question for that referendum and that legislation was brought before this Parliament? Therefore, this Parliament also had the opportunity to look at the question. The question for the referendum in Scotland will not be brought before this Parliament and we will not have an opportunity to look at it. Is it not still the responsibility of this Parliament to take care and to discharge its obligations to the citizens of the entire union?

[Lord Wallace of Tankerness]

The noble Lord is right about the Welsh referendum: the question was brought before this Parliament and was determined by it. However, as I sought to explain to my noble friends Lord Forsyth and Lord Cormack, this order seeks to put the Scottish Parliament in exactly the same position as this Parliament would be vis-à-vis a question for a United Kingdom referendum or a referendum that came under the responsibility of this Parliament. We want to put the Scottish Parliament in that position for the referendum on independence. If we are going to devolve power to do that, it is important that that is on the same basis as if this Parliament were responsible for the referendum. If this order is approved, it is up to the Scottish Parliament to make that judgment, and political consequences will flow from it if it is felt that the wrong judgment is made. We look forward with confidence to the Electoral Commission testing the question thoroughly—as it is indeed currently doing—and to make a report, and we will all be well aware of what the content of that report is. Perhaps I might make progress after I have answered the noble Lord, Lord Williamson.

[Lord Williamson of Horton]

I comprehend that point, but we have our own Constitution Committee, which has stated:

“We are concerned about whether a referendum on independence will be intelligible unless it specifies that the consequence of independence is Scotland leaving the United Kingdom”.

What comment does the Minister have to make on that point, which is the view of our Constitution Committee? I understand the point that he made about the responsibilities of the Scottish Parliament.

[The Countess of Mar]

My Lords, may I very courteously suggest to the House that we hear the Minister’s speech, and that we will all have time to add whatever we want afterwards and to ask him questions to which he can respond at the end of the debate?

[Lord Wallace of Tankerness]

I am grateful to the noble Countess and, in that spirit, I shall seek to answer questions afterwards. I have indicated what criteria the Electoral Commission uses in determining intelligibility. However, I think that many of us want to get on to actually debating the issues, because we have a responsibility, too, to deploy the arguments so that people are very clear about what the consequences would be.

Following the respective consultations of the United Kingdom and Scottish Governments, a period of discussions between Scotland’s two Governments led to the signing of the referendum agreement on 15 October. It is important that we recognise the significant achievement that this agreement represents: agreement to promote this order that we are debating today to ensure that the referendum is legal; agreement that the independent Electoral Commission should oversee the referendum to ensure that it is fair; and agreement to a single question on independence to ensure that the referendum is decisive.

I have said on a number of previous occasions that there is nothing worse than having a referendum that at the end of it one side or the other can call foul. I believe that the various strands that have been brought together to achieve the agreement will allow us to avoid that. They are a long way from where we were when this debate started in May 2011.

However, we also agreed another key point: once the fundamental requirements to ensure that the referendum is legal are established, fair and decisive, the responsibility for setting out the detail of the legislation should be for the Scottish Parliament. That is a fundamental point of principle on which I have already spoken and on which I will say more.

I will first take your Lordships through the order itself. It is made under Section 30(2) and (4) of the Scotland Act 1998. It inserts a new paragraph (5)(a) into Part 1 of Schedule 5 to the Scotland Act 1998. Part 1 provides, among other things, that the Union of the Kingdoms of Scotland and England is reserved to the United Kingdom Parliament. The new paragraph (5)(a) will ensure that the reservation does not apply to a referendum on independence, provided that it meets the requirements that are set out.

Those requirements are for a single ballot paper with a choice of two responses—in other words, a single question referendum on independence, to be held before the end of 2014, and without any other referendum provided for by an Act of the Scottish Parliament to be held on the same day. The order also makes provision in respect of public referendum broadcasts and free mailshots, which otherwise would be outwith the legislative competence of the Scottish Parliament.

Under the Political Parties, Elections and Referendums Act 2000, otherwise known as PPERA, referendum campaign broadcasts can be made only by or on behalf of a designated campaign organisation. The order applies this provision of PPERA to an independence referendum. This means that the restriction in PPERA as to who can make referendum broadcasts can apply to that referendum.

There are requirements on Ofcom and the BBC in relation to referendum broadcasts. The order provides that the definition of referendum campaign broadcasts includes independence referendum campaign broadcasts in certain circumstances so that the BBC, Ofcom and the Electoral Commission can have the same obligations and responsibilities in respect of the independence referendum campaign broadcasts as they would have in respect of any PPERA referendum broadcasts.

Under the 2000 Act, each designated campaign organisation can send a mailshot to every elector or household and is not required to pay the postage costs for this. This service is provided by the Royal Mail and the costs of this are recovered from the Consolidated Fund. This order applies these provisions in PPERA to an independence referendum. It specifically provides that the cost of the Royal Mail in providing this service will be recovered from the Scottish Ministers.

Therefore, the Section 30 order that we are debating today enables the Scottish Parliament to legislate for a legal referendum. The Scottish Parliament has already considered the order and approved it unanimously. Yesterday the order was debated in the House of Commons and approved without division, and if the order is approved by your Lordships’ House and then by the Privy Council, it will enable the Scottish Government to introduce a referendum Bill that sets 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 detail of the referendum process itself is made in Scotland by the Scottish Parliament. As I have already set out to your Lordships, this is a principle of importance to the devolution settlement. Once a matter is passed to the Scottish Parliament, it is for that Parliament to determine the details of the legislation that follows. That is how devolution has operated since 1999 and this Government will continue to respect that.

The referendum agreement and the Section 30 order set out the framework for the referendum. They ensure that it is legal, capable of commanding the confidence of people from both sides of the debate and of producing a decisive result.

I will now say something about the detail of the memorandum of agreement that sits alongside the order. It is a statement of political intent by Scotland’s two Governments. It commits us jointly to an approach and delivery of the independence referendum that will ensure that the proceedings are fair and that the outcome is decisive.

At the heart of any referendum must lie a set of rules and processes that have the support of both sets of protagonists. For the outcome of any referendum to be legitimate and accepted, 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, and that process is under way. It is worth reminding the House that since PPERA came into force there have been three referendums held under it: the north-east regional assembly referendum in 2004; the one to which I have already referred in Wales on further devolution in 2011; and the referendum on the voting system for the United Kingdom Parliament, also held in 2011. In all three cases, the Electoral Commission reviewed the Government’s proposed question and provided its advice, and the Government responded by revising the question in line with that advice.

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[Lord Foulkes of Cumnock]

Will the Minister give way on that particular point?

[Lord Wallace of Tankerness]

No—as the noble Countess said, the noble Lord will have an opportunity later, and I will certainly respond. Well, if it is very quick, yes.

[Lord Foulkes of Cumnock]

Does this include whether money can come from overseas sources, as well as total expenditure?

[Lord Wallace of Tankerness]

When I respond to the debate I will give a more detailed response to that, but I think that those arrangements are already there under PPERA.

That is what 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 applied 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 also met the parties represented in the Scottish Parliament to seek their views on the financial arrangements. When the Scottish Government set out their final proposals for financing the referendum campaign in their 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 wider international community. This is a point which the Deputy First Minister, Nicola Sturgeon, herself recognised when she said that the poll must satisfy the highest standards. It is only right that we use the bar that she has set to determine whether what is proposed is appropriate.

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. Again, that is set out in the agreement.

In addition, the Scottish Government propose to give 16 and 17 year-olds the right to vote. I recognise and very much respect the fact that there are differing views on this issue in this Parliament and in this House. My party, the Liberal Democrats, supports the principle of 16 and 17 year-olds participating in all elections; our coalition partners do not. Indeed, there are views on both sides of the Chamber on that issue. However, in devolving the power to hold the referendum, we respect that this is a matter which 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 elections and Crofting Commission elections in Scotland has set no precedent for any elections for which the United Kingdom Government and Parliament are responsible.

I fully expect the Scottish Government’s proposals to be debated robustly in the Scottish Parliament. It will be for the Scottish Government to make their case for this proposal and to deal with the issues that arise.

I can make it 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.

I turn to an issue which has attracted comment, particularly from the Scottish Government. The concluding paragraph of the Edinburgh agreement contains a commitment by both Governments to hold a referendum that is legal, fair and decisive. It is fair to say that there have been some creative interpretations of that paragraph in recent times, so I want to take the opportunity to restate its clear and very obvious meaning. Perhaps it is worth reminding the House what it actually says:

“The United Kingdom and Scottish Governments are committed, through the Memorandum of Understanding between them and others, to working together on matters of mutual interest and to the principles of good communication and mutual respect. The two governments have reached this agreement in that spirit. They look forward to a referendum which is legal and fair producing a decisive and respected outcome. The two governments are committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.”

This means that the two Governments will conduct the referendum on the same constructive terms as they work on today. It means that if the referendum follows the path set out in the order and agreement, its outcome will be decisive. It means also that, regardless of what the result is, that constructive relationship should continue as we move forward. I believe that that is good practice and common sense. Paragraph 30 is a statement of our determination to hold a referendum that is legal, fair and decisive. However, it does not and cannot be interpreted in a way that pre-empts the implications of that vote. It is important that everyone is very clear about that reality.

Scotland’s future within the United Kingdom will be the most important decision we in Scotland take in our lifetime. Facilitating a legal, fair and decisive referendum is critical. That is why we consulted on this issue. That is why both the Scottish Government and the United Kingdom Government spent many hours discussing and negotiating the process. That is why we seek the support of the House today to approve this order.

Debating this order in this House today marks an important step as we move from discussions on process to what many of us want to do—get to the substance of the debate. It is essential that the referendum decision is focused on determining whether Scotland chooses to remain an integral part of the most successful partnership of nations that this world has ever seen and to remain part of a family of nations that works in the interests of all, or whether Scotland wishes to separate and go it alone.

That is not a decision that should be taken lightly; it should be taken after examination of the facts. I strongly believe that, with the support of colleagues across the House, across Scotland and across the whole of the United Kingdom, fellow Scots will join me in autumn 2014 in choosing to stay part of this very valued United Kingdom. I believe that we are indeed better together. In the mean time, I commend this order to the House.

Amendment to the Motion

Moved by

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[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.

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[Lord Stephen]

My Lords, I start by agreeing with the noble Lord on that issue of service men and women of the United Kingdom, and of Scotland, who should have the opportunity to vote in this referendum. The issue was raised yesterday in the other place in many good speeches on this Section 30 Motion. I listened to a great deal of that debate yesterday, and although there was full cross-party consensus on the approval of the Motion, there was also, outside the nationalists, cross-party concern. That concern is shared by me and by my noble friend Lord Forsyth, as reflected forcefully in his remarks this afternoon, and clearly in the terms of his two amendments. Before focusing on that concern, we should recognise the good points of what has been achieved and of this Motion.

Michael Moore, as Secretary of State for Scotland, and the Prime Minister deserve great credit for delivering the Edinburgh agreement. Michael Moore skilfully negotiated, no doubt with the support of my noble and learned friend the Advocate-General for Scotland, an agreement that all sides agree is a good start, and a good way forward. It has been agreed by the Prime Minister, the Scottish Secretary, the First Minister and the Deputy First Minister that it is central to the principles underpinning this referendum that it should be legal, decisive and fair.

Let us take those tests in turn. First, it will now be legal, by the securing today of this Section 30 Motion and its approval under the terms of the Scotland Act 1998. In my view it was pretty clear, but some would say that it was a matter of doubt whether the Scottish Parliament had the legal powers to hold a referendum on independence. It is clear that those powers had not been devolved to the Scottish Parliament and that doubt will be removed today by the passing of this order. That is good. Secondly, as has been mentioned by others, it will now be a decisive referendum. There will be one question only. Despite the views, interestingly, of his party, which wanted one question, the First Minister wanted two questions. Clearly, he wanted an escape route. He wanted the cover and protection of a second question on more powers for the Scottish Parliament, but that emergency exit is now being removed. There will be a simple yes/no question, which means that the decision will be clear cut. That is also good news.

We then come to the third issue about fairness, on which I want to spend a little time. It has been covered pretty fully already, but it is vital that the referendum is fair if it is to command respect. We already know the SNP-preferred referendum question. We know the question that the Government in Scotland want to ask and it is not fair; it is a biased question. My noble friend Lord Forsyth helpfully quotes it in his amendment, which asks:

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

That is a rigged question on at least two grounds. I am not a great expert on these psephological matters but those who are explain that if you ask people to agree with you—do you like my tie, do you like my new haircut, do you like whatever principle—they will tend to agree in response.

[Lord Wallace of Tankerness]

They do not think about it for two and a half years.

[Lord Stephen]

Indeed. Those who know about these matters say that is the first element of rigging of the question. Secondly, and on this I am more familiar because it is surely a matter of law, and of international law at that, is the issue of whether you want Scotland to be an independent country. The correct question, I am told, is whether it should be an independent or a separate state. That is not the wording that the SNP proposes. Scotland is already a country; some people in this Chamber who are fierce unionists have already said they believe it is an independent country.

I am very pleased that the Edinburgh agreement sets out that the conduct of the referendum is to be overseen by the UK Electoral Commission—not a separate Scottish body—which is seen to be fair and objective and neutral. That is wholly good news. I was also greatly encouraged when I saw John McCormick, who many people in this Chamber will know is the Electoral Commissioner for Scotland, being interviewed on this issue by the BBC. He said that it was crucial that the question put to voters was clear, simple and neutral and went on to say, very importantly, that in his view the question was the foundation—the bedrock —on which this referendum would be built. If it was flawed or biased, the whole process would be flawed and biased. I agree with him completely. I do not agree with those who say the question does not really matter and that by voting day everyone will be pretty much clear on what the referendum is about—being in or out of the United Kingdom. It is important that the question is fair and commands respect on all sides from the start.

Some say it would make only a small difference, of maybe 2% or 3% either way. My noble friend Lord Forsyth has referred to the situation in Quebec. Some are saying it would be more than that, some less. Percentages are a curious thing, are they not? If British Airways downgraded its expectations of successful landings at Heathrow by 2% or 3%, international air travel would be killed overnight. If a casino said that a roulette wheel had a built-in bias in its favour of 2% or 3%, I dare say that many gamblers might still take the chance. We should not be gambling, however, with our nation’s future.

Finally, there is the issue of who decides in all of this. Is it the Electoral Commission? No, it is quite clearly the SNP, the Scottish Government and the Scottish Parliament that will decide the question. Can we trust the SNP on this issue? Well, no, because although it is both the player and the referee, it has made clear that the recommendations of the Electoral Commission are not binding on the Scottish Government and Parliament. Angus Robertson, in the House of Commons yesterday, and Alex Salmond, the First Minister, on Radio 4 this morning, have been given ample opportunity to make it clear, as the other leaders in the Scottish Parliament have done, that they would accept the views of the Electoral Commission on this crucial issue of bias and of avoiding anything other than an objective, neutral and fair question.

They have a mantra now, to get them out of the difficult question. The Electoral Commission will advise, says the First Minister. The Scottish Government will recommend and the Scottish Parliament will decide. Of course, as has been said, they have form on these issues of fairness, honesty and integrity—the very recent form that has been referred to, when the First Minister failed to tell Andrew Neil of the BBC the truth about whether he had taken legal advice on Scotland’s EU membership and the Scottish Government then used taxpayers’ money in the courts to resist revealing legal advice that the Scottish Government had never taken. That is the sort of “Alex in Wonderland”, topsy-turvy situation that we are dealing with. There is no honesty, integrity and consistency in a position such as that.

However, there is a deeply serious and worrying point. If this referendum is not based on a neutral question, it will be biased; if it is biased, it will not be fair; and if it is not fair, that will be a breach of the Edinburgh agreement to be “legal”, “fair” and “decisive”. In my view, we will then have a serious constitutional crisis. I trust that can be avoided and that the First Minister can rise above narrow partisanship and set a tone for this referendum that will command all-party respect right across the whole of Scotland and of the United Kingdom. On that basis, we should pass the Motion today, but remain fiercely, ferociously and for ever vigilant about the dangers that lie ahead, which could have such profound implications for both Scotland and the whole of the United Kingdom if some of the fears mentioned today come to pass.

--- Later in debate ---

[The Duke of Montrose]

My Lords, I would like to touch on three points, first on process, then on content and finally on effect. I want to go back a bit further than we have done so far this afternoon. Today we are dealing with one of the myriad Henry VIII powers that are contained in the Scotland Act. As your Lordships will know, the Act itself was almost exclusively the product of an ad hoc body that called itself the Scottish Constitutional Convention. The fact that it contains so many Henry VIII powers, it seems to me, was the product of an approach that said, “We don’t really know what we eventually want, but let’s make a start and then we can see how it works as we go along”. So far, the Library tells me, Governments of whatever persuasion have been able to unearth 31 powers in the Act and pass 194 amendments to Schedule 5.

Given the state of politics in Scotland, contrary to the expectations of all the wise constitutionalists who set things in motion, the Scottish Nationalists have achieved such an overall majority that the need for a referendum on independence has developed a certain urgency. That need is to determine what the true convictions of the Scottish people are.

The power contained in Section 30(2) is possibly the most far-reaching in the Act. As was pointed out in the report of your Lordships’ Constitution Committee, as we heard earlier, this power has already been used 10 times for things that varied from equality and human rights to the railways. As the noble Lord, Lord Crickhowell, said, the committee also commented that the use of,

“the section 30 route significantly curtails the opportunity of the UK Parliament to have an effective input into the process”.

Today we are asked to pass this outwardly fairly simple order. Noble Lords will notice that it shares one outstanding feature with the Scotland Act 2012. Both are remarkable for what they do not say. This time we have got rather more in the memorandum of agreement, but here we are being asked to pass measures that are not even as yet in secondary legislation. Noble Lords have touched on reducing the voting age to 16, an issue that is bound to have repercussions on all elections that take place in the UK, whatever anyone likes to say. In fact a Bill has been tabled in this House by the noble Lord, Lord Tyler, who I see is not in his place, when we will be able to look at this issue in the round. Here the issue is tucked away in a memorandum of agreement and we will not spend much time considering it.

The fact that we now find ourselves in a country with a devolved franchise, which is nominally giving restricted powers to other parts of the United Kingdom, appears to mean that the sovereignty of the Westminster Parliament can no longer be adhered to. We get framework orders such as this that are merely to approve powers that the Government have already assumed for themselves. Perhaps the Minister would like to comment on the Government’s statement in answer to one of Monday’s amendments to the Electoral Registration and Administration Bill. The amendment asked that the Secretary of State should be able to alter the franchise for elections by secondary legislation. The Minister said that they,

“believe that the franchise for UK elections should remain set out in primary legislation. It would be very unusual to provide for a change to the franchise in secondary legislation”.—[Official Report, 14/1/13; col. 489.]

What about memorandums of agreement? The agreement is such that we have a considerable—

[Lord Wallace of Tankerness]

Rather than allow a misunderstanding to continue, a memorandum of agreement does not change the franchise for the Scottish election. If it were to be changed, that would have to be done by means of primary legislation in the Scottish Parliament. Every referendum has its own franchise. The consequence of passing this order is that the franchise would be determined by the Scottish Parliament. There is an agreement that it should first and foremost be the franchise for Scottish elections and local elections. If the Scottish Government wish to extend it to 16 and 17 year-olds, that will require primary legislation in the Scottish Parliament.

[The Duke of Montrose]

I thank my noble and learned friend for that clarification but the underlying issue still bears consideration. On independence, I think that what we are faced with is that some regard Scottish history as having been a wasted opportunity either after Flodden in 1513 or after the Darien scheme in 1698, and they wish to wipe the record clean and begin again with a new and enlightened polity—centuries of Scottish toil brushed carelessly aside.

We can all see that in the intervening period there have been some remarkable individual Scots whose lives have marked moments of great progress for mankind, including Adam Smith, the framers of the United States constitution and David Livingstone. They can all stand on their own merit but in some ways, backing up the remarks made by the noble Lord, Lord McConnell of Glenscorrodale, when we begin to consider what Scotland’s contribution has been in the wider world, the vast bulk of it has been achieved within the union that is the United Kingdom.

Of course, as we contemplate the accumulation of events—the noble Lord, Lord Reid of Cardowan, raised the same issue—we are now learning that perhaps some of the elements were far from activities of which we should be proud. Overall, though, I maintain that Scotland has much to show for those years, and it is not something that can be easily shrugged off in a moment of enthusiasm for whatever appears new.

The nature of Scotland is such that big opportunities generally have been seen in the wider world outside. We can all see that independence can have a great attraction to the stay-at-home Scots, as long as Alex Salmond can continue to pull in sufficient funds to maintain the level of what we have come to regard as our inalienable rights. However, what can a vote for independence offer to our young people who are pursuing a career path in the corridors of power or in more widespread and influential businesses and marketplaces, or those who wish to establish businesses there? Will they not have to accept that they will be even more regarded as non-nationals in their place of work and increasingly unable to have a vote and influence in what is still their home?

--- Later in debate ---

[Lord Kerr of Kinlochard]

That is where I was going, although I would like to hear the Minister’s answer to my question on how one reads paragraphs 8 and 12 together.

[Lord Wallace of Tankerness]

I wonder whether it would be helpful to do so now, as it has been raised. The word “intelligibility” is used because Section 104(2) of the Political Parties, Elections and Referendums Act 2000, passed by this Parliament, states, in relation to a referendum question, that the Electoral Commission,

“shall consider the wording of the referendum question, and shall publish a statement of any views of the Commission as to the intelligibility of that question”.

That is why the word, “intelligibility” has been taken from the statute and put into the memorandum. As the noble Lord rightly points out, the Electoral Commission set out in its 2009 guidance and guidelines, which I quoted when moving the Motion, how it intends to go about determining intelligibility. I hope that that clarifies why the word was used. The other matters to which the noble Lord referred, such as ease of understanding, lack of ambiguity and avoiding misleading voters, are part of the criteria that the Electoral Commission has indicated that it applies when undertaking the word, “intelligibility” in statute.

[Lord Kerr of Kinlochard]

I am grateful to the Minister and in some way reassured. It seems to me that we need to keep a close eye on this issue. I strongly agree with the challenge raised by the noble Lord, Lord Sutherland, but I think in his normal, consensual, non-polemical way, the noble Lord, Lord Reid of Cardowan, got it absolutely right. There may be a fox around, but the Scots are not chickens. They are not stupid. If there is an attempt to rig the question, and the advice from the Electoral Commission, speaking to its remit as described by the Minister, is dodged or not responded to positively, it would be a considerable down side with the electorate in Scotland. The question of the question is very important, but let us not exaggerate it. If it is not a straight question the Scots are even more likely to give it a very straight answer.

--- Later in debate ---

[Lord McAvoy]

My Lords, this has been quite a lengthy debate. Nevertheless, the contributions have been very weighty; there is much knowledge and wisdom in this House. I would like to draw your Lordships’ House back to why we are here. We are here because the Scottish National Party won an electoral mandate at the previous Scottish parliamentary election. I do not like it but I accept the result. It has the right to support and advocate a referendum. We in the Labour Party support this order and hope to get into the debate as soon as possible, rather than be distracted by the many issues that have been raised today.

The noble Duke, the Duke of Montrose, mentioned an ad hoc organisation that advocated devolution. The Labour Party, the Liberal Democrat Party, and almost the whole of civic Scotland joined that ad hoc organisation. The difference between what happened then and what is happening now is that there was a broad consensus throughout Scotland about the need for a Scottish Parliament. The Labour Party supported that and, with the help of the Liberals and others, we brought about devolution and the installation of a Scottish Parliament. As soon as you devolve power to the Scottish Parliament, that power is there and it would be foolish to argue and quibble about this and that when it clearly has a mandate and the democratic right to do what they are doing, within generally accepted conventions.

A number of your Lordships have mentioned, quite rightly, the flaws within the deal that came about between the Prime Minister and the First Minister. We feel that one or two things could have been negotiated a bit more firmly. Having said that, the deal has been made, that is what we have, and we should move on from that. Nevertheless, we should note some points. For instance, the Scottish Affairs Committee quite rightly said in its report last week that decisions in the Scottish Parliament should be achieved by consensus and not simply through the use of the SNP’s majority. I keep hearing the phrase “gold standard”. The consensus that we achieved in the 1980s over the issue of the governance of Scotland should surely be the gold standard. I do not want to denigrate anyone’s personality on this, because that is a distraction that will only damage the cause of those of us who support the union.

There are a lot of issues, such as that of granting votes to 16 and 17 year-olds. The Scottish Parliament has the power to do that. There should be a debate about it, but it should not be an issue that prevents or distracts us from scrutinising this order.

On campaign finance and the wording of the question, the key phrase should be that the Scottish Government cannot be the referee and a player. Surely the Electoral Commission will act as an independent overseer of that process?

The point so ably made by my noble friend Lord Reid of Cardowan is that the Scottish people are not exactly backward at coming forward. I do not think we will be easily fooled; we will spot any chicanery or jiggery-pokery that may come from any party during this process. Sometimes, we in the political world can underestimate the acumen of the public, who keep an eye on politicians.

The wording of the question should be clear, unambiguous and thoroughly tested by the Electoral Commission. Like others, I should like to see the Scottish National Party commit itself to accepting the decision of the Electoral Commission vis-à-vis the wording. The noble Lord, Lord Empey, and other noble Lords who mentioned this were right: if we have bitter disputes over this, the bitterness will continue and the result will not be regarded as legitimate. It is absolutely essential that we get legitimacy for that result, whatever it is, and that it should be accepted by all.

A number of your Lordships have rightly mentioned the quality of the contribution and amendments of the noble Lord, Lord Forsyth. A number of my colleagues have stated they agree with much of his position. As I am a bit of a bureaucrat, one of the things I am concerned about is the practicality of the timeline. It is clear that, although October 2014 seems a long time away, the processes that need to be gone through before then are nevertheless considerable and time-consuming. If any of these timeline targets are not met, the process will be delayed, which would be dangerous. It will seem that obstruction by Westminster has caused the delay, which would be fatal to the cause of those of us who support the union.

Devolution means devolution. I am afraid that is sometimes hard to accept and something that we do not like. The Scottish people decided that they wanted devolution. I accept it, and it should be accepted.

My noble friend Lady Liddell made the point—far better than I am making it so far—by warning that we should not allow ourselves to be distracted by all the niggly points that have annoyed us. We have picked fault here and picked fault there. I do not say that the niggles, doubts and criticisms are not justified, but let us solve them; let us deal with them, get them out of the way and get on with campaigning. The people of Scotland are looking for a campaign where the issues are discussed, not individual personalities. We can then go to the real core of what would happen to Scotland if it separated from the rest of the United Kingdom. I do not mean that as a negative point or to frighten the people of Scotland by saying that Scotland cannot or would not exist without the rest of the United Kingdom. Of course we could: we could be economically viable and we could be a separate state. But we should say to people that we do not want to be separate—to separate from England, Wales and Northern Ireland, a union that has served us all well, especially in two world wars.

Again, I echo my noble friend Baroness Liddell. Let us get these issues dealt with. Yes, let us deal with them and debate them, but the sooner we get on to this campaign the better.

[Lord Wallace of Tankerness]

My Lords, I thank all those who have taken part in this debate. I thank also my noble friend Lord Forsyth for moving his amendment which has stimulated so much debate, although I suspect that, even without it, we would have had a considerable debate on the issue. I understand from my noble friend Lady Garden that there have been some 20 contributions, including an Englishman, a Welshman, a Northern Irishman and, regrettably, only one woman.

[Lord Crickhowell]

There were two Welshmen.

[Lord Wallace of Tankerness]

I offer my sincere apologies to my noble friend Lord Crickhowell. It has been a very passionate debate. As the noble Lord, Lord McAvoy, said, this is not necessarily where we want to be. I do not think that anyone here has advocated a referendum or, certainly, independence. Nevertheless, we recognise and respect the outcome of the Scottish election of May 2011 and the manifesto commitment of the Scottish National Party to have a referendum.

I welcome the fact that the noble Lord, Lord Browne, supported the view that the process was being done properly. I thank my noble friend Lord Crickhowell as a member of the Constitution Committee for his contribution. I am grateful not just for the most recent report of that committee on this matter but for the report which the committee produced in February last year following the consultation which the United Kingdom Government launched. In that report, the Constitution Committee welcomed the proposal,

“that a section 30 order be made to confer on the Scottish Parliament clear competence to legislate for a referendum on Scottish independence”.

From that flow a number of the issues which have been dealt with in this debate. It is also fair to point out that, in its most recent report on the referendum, the committee stated:

“We welcome the fact that the Agreement reached between the two Governments accords with our previous recommendations. The question of legislative competence is addressed, it is intended that the referendum will pose a single question on independence, and the Electoral Commission will play the lead role in advising on the referendum”.

That is why I cannot accept the argument that the outcome of the negotiations was weak, as it has been described by some noble Lords. As the Scottish Affairs Select Committee in the House of Commons said:

“The Secretary of State and his team are to be congratulated on their willingness to compromise and reach a consensus with the Scottish Government so that the referendum can be held on a basis to which all can consent”.

The noble Lord, Lord McConnell, mentioned the evidence that he gave to both the United Kingdom Government’s consultation and the Scottish Government’s consultation, where he said:

“I hope that both the Scottish Government and the UK Government will be willing to compromise on all of the key issues to ensure we have a clear outcome in a referendum and an outcome that is accepted by everyone as the fair result of a fair campaign”.

That is what we sought to do.

The noble Lord, Lord Reid, said, quite fairly, that of huge significance was the fact that it was a single question. I would certainly find myself in some difficulty if I was to come before the House today trying to defend an order or a process that had led to an outcome where there could be more than one question—the so-called multi-option referendum. As the noble Lord rightly said, there is a world of difference between a referendum where one part of the United Kingdom wishes to secede from the United Kingdom, which is a matter, as successive Governments have accepted, for that part of the United Kingdom, and one where there is to be a different relationship within the United Kingdom, with further powers being devolved. That is an important distinction and it is why I am very glad indeed that what we bring before the House today is an order which will provide for a single-question referendum.

It is inevitable in these circumstances that we come to the role of the Electoral Commission. The noble Lord, Lord Kerr, asked about the wording in paragraph 8 of the agreement, which contains the reference to “intelligibility”. I hope that I indicated why that word was used—it is a statutory word, if you like—but of equal importance is the way in which that has been interpreted by the Electoral Commission. Mr John McCormick, who is the Electoral Commissioner for Scotland, said on 9 November, when the Scottish Government submitted their question:

“We will assess the referendum question to see whether voters find it clear, simple and neutral. If it isn’t, we’ll say what needs to be done”.

I shall come to the issue of the question in a moment, because the other issue, as my noble friend Lord Crickhowell said, is the role of the Electoral Commission. Paragraph 12 of the agreement, also referred to by the noble Lord, Lord Kerr, sets out the role of the Electoral Commission in referendums. It states:

“Both governments agree on the importance of the referendum being overseen in an impartial way by bodies that can command the confidence of both sides of the campaign. The Electoral Commission is responsible for overseeing referendums held under PPERA. PPERA gives the Electoral Commission responsibility for: commenting on the wording of the referendum question; registration of campaigners; designating lead campaign organisations; regulating campaign spending and donations; giving grants to lead campaign organisations; publishing guidance for permitted participants; reporting on the referendum process; the conduct of the poll; and the announcement of the result”.

Paragraph 14 of the agreement states:

“Both governments agree that the Electoral Commission should fulfil all these functions in respect of the independence referendum, with the exception of the conduct of the poll”—

which will be done by an electoral management board which has already been established for local elections in Scotland and it is widely agreed across that parties that that should continue—

“and announcement of the result, and the giving of grants”.

The reason why the giving of grants is excluded is that the Scottish Government propose that there will be no grants of public money to the lead campaigns. That is the nature of the oversight by the Electoral Commission which has been proposed.

On foreign donations, it is proposed—

[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.

[Lord Wallace of Tankerness]

I certainly intend to deal with that. It is a fair question which has been echoed across the Chamber in this debate.

Donations from overseas are dealt with by paragraph 28 of the agreement, which indicates that the rules under PPERA will apply. PPERA states that donations of more than £7,500 must be recorded and declared publicly and that donations of more than £500 require individuals to be registered in the United Kingdom. It is intended that these rules will apply in this referendum and the agreement has set that out. In other words, it is the same rules as are agreed under PPERA.

[Lord Foulkes of Cumnock]

Does that mean that more than £500 can be donated to the campaign from people in England?

[Lord Wallace of Tankerness]

I understand that that would be the case, yes.

My noble friend Lord Forsyth asked why broadcasting and mailshots were included in the order whereas other issues were not. The simple answer to that is that broadcasting and the Royal Mail are outwith the competence of the Scottish Parliament. Legislation brought forward by the Scottish Parliament cannot deal with these issues unless competence has been transferred. That particular part of the order transfers competence in order for the broadcasting arrangements and mailshots to be dealt with.

My noble friend and many other noble Lords asked about the nature of the question. Numerous people have found flaws with the question of whether Scotland is a country, a state or a nation, as the noble Lord, Lord Sutherland, made clear. I do not stand here to defend the question that has been put forward. It is not my job to defend it; nor would I wish to defend it. It is important that that should be a matter for the Electoral Commission, which is why it has been asked to advise.

The United Kingdom Government recognised in their consultation paper that the Electoral Commission’s role in referendums was to consult on the intelligibility of the proposed question and to report to the UK Parliament. We would have come under considerable pressure and criticism if it had been suggested that the Scottish Parliament should be treated in a different way. I will pick up on this point, because it is quite central to a lot that has been said in this debate. I will not go into the personalities, but we know the ability of not only the leader of the Scottish National Party, but in many ways the Scottish National Party itself. One thing that they have quite excelled at—those of us who have been around Scottish politics know this only too well—is their ability to nurse a grievance and to milk a grievance. That is what the noble Lord, Lord McAvoy, said about the timing of this. We do not want to give them another sense of grievance. If we had proposed that the Scottish Parliament was in some way to be treated in a lesser way with regard to a question after it had gone to the Electoral Commission than the United Kingdom Parliament was treated, we would have given them cause for a grievance.

The noble Lord, Lord Reid, was absolutely right to point out that this is a question which will come back to haunt them if they choose to ignore the advice of the Electoral Commission. I know that my noble friend Lord Forsyth said that he did not want this to be two years of picking on points, but it would be quite legitimate, if an attempt was made to put a biased question, for that to be pointed out and for the political consequences of that to be reaped. However, I would not wish, and what we have sought to avoid—and have successfully sought to avoid—is a two-year campaign in which the United Kingdom Government and Parliament are in the dock because we somehow or another have tried to rig the referendum. That is why it is so crucially important that we do not give, and we have not given, any opportunity for the Scottish Government to cry foul and say that we are somehow rigging the situation.

In an interesting article by John Rentoul in the Independent in November of last year, in which he praised my right honourable friend the Secretary of State for Scotland, he said:

“This sudden removal of the London Government from the see-saw meant that Salmond lost his balance. When Cameron went to Edinburgh in February to announce that he would not try to stop the Scottish National Party holding a referendum, Salmond found that the great London counterweight, against which his career had been built, had been taken away”.

It is important that we do not give that opportunity, or that excuse, for a grievance to be mounted. That is one of the main reasons—a key reason—why we are dealing with this in the same way as we would deal with a question in a UK referendum that had been legislated for by the UK Parliament.

That answers the question about the referee and the player. I take the point made by the noble Lord, Lord Sutherland, who came forward with a question himself. It is up to people with an interest to make their views on this known to the Electoral Commission. Clearly it would not be appropriate from the Dispatch Box to determine the agenda of the Scottish Parliament, but I rather hope that Members of the Scottish Parliament will note what has been said about them having an opportunity to debate this issue.

I will make one further point on this, which was made by the noble Lord, Lord McConnell, and was echoed by the noble Lord, Lord Empey. Lots of harsh words could, and almost certainly will be, exchanged in the next two years, and there is potential, as the noble Lord, Lord McConnell, said, for a nasty taste to be left in the mouth. That is why there is a responsibility on the Scottish Government and the Scottish Parliament to ensure that the question that is asked is not a source of that sour taste in the mouth. Just as we have sought, as a United Kingdom Government and a United Kingdom Parliament, to produce a scheme and process that will not allow anyone at the end of the day to cry foul—“It wasnae fair”—it is also incumbent on the Scottish Government and, above all, on the Scottish Parliament to ensure that when they devise the rules, procedures and indeed the questions for this referendum, they do not give anyone the opportunity at the end of the day to say “It wasnae fair”. It is important that the outcome of this referendum is decisive and properly recognised as having been fair and properly arrived at by the people of Scotland when they cast their votes in 2014.

[Lord Pearson of Rannoch]

My Lords, is the Minister about to leave the Electoral Commission in his remarks, or will he address the two questions that I, and the noble Earl, Lord Caithness, put to him?

[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.

[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.

[Lord McConnell of Glenscorrodale]

My Lords, will the Minister check very carefully that that information campaign is timed to coincide with the period during which service personnel would require to register to qualify to vote in 2014? The timescales may well be such that they would miss deadlines. We would all appreciate an assurance that such checking will happen.

[Lord Wallace of Tankerness]

That is an important point, and I take it on board. It is also important to make clear that service declaration, to which I referred, is now valid for five years, following legislation that took effect in March 2010. Those who have already made a service declaration which gets them on to the Scottish register will have that for the five years after March 2010, so they will certainly have it for the time of the referendum.

[Lord Reid of Cardowan]

I am grateful to the Minister for that. Knowing how bureaucracy can ensure that the best laid plans gang aft agley, can he ensure that there is a distinct recognition in the Ministry of Defence that this is different from the normal, annual registration, for this reason: you have go to every serviceman and woman? From what he said, there may well have to be a process to identify those who have the qualifying criteria of having had a residence in Scotland, and so forth. If that process is not started early, we will find, as we did many years ago, before we brought in the new regulations, that for purely bureaucratic reasons, servicemen and women and their families are not adequately informed—especially, as my noble friend Lord McConnell said, in time. That process has to start now. It is quite a big job weeding out, if you like, or identifying people, rather than applying a carte blanche regulation for everyone.

[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.