Scotland’s Constitutional Future

Margaret Curran Excerpts

Tuesday 10th January 2012 Commons Chamber

[The Secretary of State for Scotland (Michael Moore)]

With permission, Mr. Speaker, I would like to make a statement on Scotland’s constitutional future in the United Kingdom.

In May 2011, the Scottish National party won a significant electoral victory—a victory that this Government have openly acknowledged. The SNP has consistently campaigned for Scottish independence, and its 2011 manifesto included a pledge to hold an independence referendum. As a Scot, I think that it is vital that the Scottish people make a clear decision about our future within the United Kingdom: a decision made in Scotland, by the people of Scotland. At present, however, there is a lack of clarity about the referendum, its outcome, and what the implications of that outcome would be, all of which creates economic uncertainty. That is bad for jobs and investment.

Since last year’s election, we have been asking the Scottish Government to set out their plans for a referendum, but so far they have not done so. In particular, they have not said anything more about their legal power to deliver a referendum. This is not an issue that can be ducked. To legislate for a referendum on independence, the Scottish Parliament must have the legal power. It is this Government’s clear view that the Scottish Parliament does not have that legal power.

Scotland’s future within the UK will be the most important decision we, as Scots, take in our lifetime. It is essential that the referendum is legal, fair and decisive. As a Government, we have been clear since May 2011 that we will not stand in the way of a referendum on independence, but neither will we stand on the sidelines and let uncertainty continue. Any referendum must let all of us in Scotland determine our future clearly and decide whether to stay part of the longest, most successful partnership of nations in history. That is why we are publishing a consultation to seek views on how to deliver a legal, fair and decisive referendum. For a referendum to take place, legislation is required. That will ensure that any referendum, on any issue, is subject to detailed consideration and debate, and to clear and consistent regulation.

In 2010, the Scottish Government published plans to legislate for a referendum on independence. We have considered those plans carefully against the devolution settlement in Scotland as set out in the Scotland Act 1998. The 1998 Act is clear: the Scottish Parliament cannot legislate on matters reserved to this Parliament. Among the issues that are reserved is the constitution, including

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

Any Act of the Scottish Parliament that “relates to” a reserved matter is quite simply “not law”. Whether or not a Bill “relates to” a reserved matter depends on its purpose and effect. We are clear that the Scottish Government’s purpose in bringing forward a referendum is to secure independence. Their intended effect is to secure a mandate for negotiating this. Both purpose and effect relate directly to the reserved matter of the Union. Any distinction between a binding or advisory referendum is artificial. As the law stands, an independence referendum Bill is outside the competence of the Scottish Parliament. Such a Bill could be challenged in court, and it is our view that the Scottish Government would lose.

The consultation paper that I am publishing today sets out different ways to deliver a legal, fair and decisive referendum. It explains how the powers for a referendum could be devolved under the section 30 order-making provisions in the Scotland Act 1998, which is our preferred approach. It also invites views on devolving the powers using other legislation, including the current Scotland Bill, and seeks opinions on the possibility of running the referendum directly.

Given the clear legal problem that exists, we want to work with the Scottish Government to provide the answer. This is not about the mandates of Scotland’s two Governments, or about who calls the shots. It is about empowering the people of Scotland to participate in a legal referendum. That means that the UK Government are willing to give the Scottish Parliament the powers to hold a referendum, which it cannot otherwise do legally. As well as being legal, however, a referendum must be fair and decisive. For those reasons, the rules of the referendum must be demonstrably above board. The referendum should be overseen by those who have neutrality and the proven expertise to inspire confidence in the fairness of the process, such as the Electoral Commission.

These issues are not for politicians alone to consider. That is why the consultation process that starts today will let people express their views on when a referendum should be held, what question should be asked, who should be entitled to vote and how the campaign should be run. It will be open to all people in Scotland—and, indeed, outwith Scotland—to make their views clear, rather than rely on the opinions of politicians. It is in everyone’s interests that the two Governments take on board the needs of Scotland and the opinions of its people, work together, and deliver the legal, fair and decisive referendum that is in our common interests.

The Government believe passionately in the United Kingdom. For over 300 years our country has brought people together in the most successful multi-national state the world has known. This Government are clear that independence is not in the interests of Scotland. The United Kingdom brings strength to Scotland; Scotland brings strength to the United Kingdom. We recognise that this is not a view shared by all, but politicians from both sides of the debate owe it to everyone in Scotland to ensure that the referendum is delivered in a legal, fair and decisive way.

The future of Scotland must not be worked out in secret, behind closed doors, nor determined by wrangling in the courts. It is my task to ensure that this referendum is made in Scotland by the people of Scotland for the future of Scotland. I commend this statement to the House.

[Margaret Curran (Glasgow East) (Lab)]

I thank the Secretary of State for sight of the statement before its announcement this afternoon. As a consequence of the result of the Scottish elections in May, we accept that the Scottish National party has a clear mandate to ask the people of Scotland whether they want to remain part of the United Kingdom. There is absolutely no doubt that this referendum will take place; what all the political parties must now do is work together to make sure that the referendum is fair, legal and commands the complete authority of the Scottish people.

In the light of the Secretary of State’s statement, we have some further questions and concerns that I hope he will address in his response. I begin by asking the Secretary of State how he plans to take forward his proposals and his plans for consultation on the section 30 order.

Secondly, I understand that without publishing any of their own legal advice, the Scottish Government are contesting the authority of the legal advice held by the Secretary of State. What assurances can he give the Scottish people that the advice he holds rests on a sound foundation—a foundation that is robust and authoritative on this issue? To ensure maximum transparency, does he plan to publish his legal advice, and would he recommend that the Scottish Government do the same?

Thirdly, Scottish Labour is clear that any question on separation must be a straight yes or no choice. We therefore welcome yesterday’s acknowledgement by the Deputy First Minister of the Scottish Government that this is also the preference of the Scottish National party. Will the Secretary of State confirm that this is the position of the coalition parties, too? If so, it is important to recognise that, in respect of Scotland, all four major political parties are in agreement that there should be a straight choice of a yes-no referendum. That is a highly significant development.

Fourthly, will the Secretary of State confirm with absolutely clarity today whether the UK Government support the involvement of the Electoral Commission in the conduct of the referendum? The Electoral Commission has overseen referendums in Wales and the rest of the United Kingdom this very year, and it has the highest level of confidence and respect in overseeing the referendum as a non-partisan arbiter. We are of the opinion that it is the body best placed to oversee the referendum. Does the Secretary of State share that view?

Which Minister will lead the consultation? Will it be the Secretary of State himself, or will it perhaps be the Chancellor? The United Kingdom Government appear to have sent out the wrong signal by allowing the Chancellor, rather than the Secretary of State for Scotland, to take the lead on a vital Scottish issue in the Cabinet.

As the First Minister asserted last May, the sooner the vote on the future of Scotland is held, the better. Scotland’s economy is flatlining. One in four young Scottish men is out of work. We are told that Scotland now faces record levels of child and family poverty. What we cannot afford to do is spend the next four years obsessing about the process of a referendum. Now is the time for parties to work together, get on with the debate, and get on with deciding where Scotland’s best future lies.

The Scottish people face a momentous decision in the referendum. What Labour will not do is sit back and support a process that turns into a petty fight between the two elements that Scotland rejects—separation and the Tories. Scotland deserves better than politicians bickering about the process. We must move as quickly as possible to a debate of substance that puts Scotland’s people and Scottish interests first.

[Michael Moore]

I entirely agree with what the hon. Lady has just said about the need for us get on with the debate, and to ensure that the Scottish people and Scottish interests, not the interests of politicians in different political parties, are at the heart of it.

I am delighted to confirm that—as the hon. Lady will see if she reads the consultation paper, and as is clear from the fact that I made the statement today—I will lead for the Government, working with all my colleagues.

As I acknowledged in my statement, the Scottish National party secured an important victory in the elections last year. It had set out its clear intention of holding a referendum, but what was not so clear was how it would do that. As I have said, we believe the legal position to be that the Scottish Parliament does not have the power to conduct any kind of referendum, and it is therefore important for us to work with the Scottish Government to ensure that we can get on with this historic decision.

The hon. Lady asked how we would consult. The consultation document offers people throughout Scotland the opportunity to write and involve themselves in the process. I will of course be going out and about in Scotland myself, and I am sure that many others will also involve themselves in the debate. It is important that everyone in Scotland is able to feel part of the process.

The hon. Lady will be aware of the ministerial code and the convention followed by successive Governments that legal advice is neither acknowledged nor published. However, I ask her to look carefully at the consultation document and to note the authority that we are bringing to bear, namely sections 29 and 30 and, in particular, schedule 5 of the Scotland Act. I believe that careful examination of those documents will lead to only one clear conclusion: that there is no legal authority for any referendum. We must ensure that that issue is resolved.

The hon. Lady asked whether I, like her, support a simple, straightforward yes-no question on Scotland’s place in the United Kingdom. That is indeed what we are recommending. As for the issue of oversight, I think it entirely fair and reasonable for the process of a referendum to be overseen by a body that has widespread experience, is neutral, and is seen to be above and beyond the fray. The Electoral Commission seems to me to fit the bill, but I look forward to hearing the reactions of others during the consultation.