Opening Speech by the Secretary of State for Scotland in the Section 30 Order Debate

Opening speech by Michael Moore on the Section 30 Order, which if approved will enable the Scottish Government to introduce a referendum Bill.

This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government

The Rt Hon Michael Moore

I beg to move that the draft Order laid before the House on 22 October 2012 now be approved.

I am grateful that we have longer to debate the Order than would normally be the case. This reflects the interest that Honorable and Right Honorable Members have spent scrutinising it, not least, in the Scottish Affairs Committee, whose report is a very important contribution to the Parliamentary process.

On 15th October last year, the Prime Minister, First Minister, Deputy First Minister and I signed an agreement on behalf of our respective governments that will - if this Order is approved by this House and the other place - allow a legal, fair and decisive referendum to take place on Scottish independence.

We will face the most important political choice that people have taken in Scotland in over 300 years.

This is a process that began with the Scottish National Party’s victory in the May 2011 Scottish Parliamentary elections and its manifesto pledge to hold an independence referendum. From the very beginning, we recognised the political mandate that the SNP had secured for a referendum.

However, as I set out to the House 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 10th January 2012 which set out the different ways to deliver a legal referendum. Shortly afterwards the Scottish Government set out its own consultation.

UK Government consultation

Our consultation paper sought views on how to facilitate a legal, fair and decisive referendum.

We 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. Over 70% of respondents agreed that the Scottish Parliament should be given that power.

Throughout the discussions with the Scottish Government, we stressed that there should be a single question to deal decisively with the issue of independence.

Three-quarters of respondents agreed.

In our consultation paper, we set out our view that the Electoral Commission - the independent body responsible for overseeing referendums in the UK - should be responsible for this referendum.

This is the same position as for any other referendum.

86% of respondents supported the UK Government’s position.

Indeed, this was a point which the Scottish Government accepted fairly quickly. They moved from their initial proposal to establish a separate Scottish body to oversee the poll to a position of accepting that the Electoral Commission were the right people to oversee the referendum.

We also sought views on timing and franchise.

On timing, we sought views on when the referendum should be held.

Many people supported our view that the referendum should be held sooner rather than later.

Indeed the Order before us today provides an end date for the referendum.

But it does not prevent it being held sooner.

It will be for the Scottish Government and the Scottish Parliament to set the referendum date.

On the franchise, we asked for views on who should be entitled to vote in the referendum.

There was clear support for the proposal that those entitled to vote in the Scottish Parliament should also be able to vote in the referendum.

On the issue of 16 and 17 year olds, respondents were divided. I will return to this issue later in my remarks.

“Edinburgh Agreement” between the Governments

Following the respective consultations, a period of discussions between Scotland’s two governments led to the signing of the Edinburgh Agreement on 15th October.

I will return to the other important elements of that Agreement shortly, but first I want to deal with the Order itself.

The Order

The Order is made under section 30, subsections (2) and (4), of the Scotland Act 1998. It inserts a new paragraph 5A into Part 1 of Schedule 5 to the Scotland Act 1998.

Part 1 provides - amongst other things - that the Union of the Kingdoms of Scotland and England is reserved to the UK Parliament.

New paragraph 5A will ensure that the reservation does not apply to a referendum on independence, provided that it meets the requirements set out.

Those requirements are for a single question referendum, on the subject of independence, to be held before the end of 2014, and without any other referendum provided for by an Act of the Scottish Parliament held on the same day.

The Order also makes provision in respect of public referendum broadcasts and free mail-shots which would otherwise be outside of the legislative competence of the Scottish Parliament.

Under the Political Parties, Elections and Referendums Act 2000 (otherwise known as or PPERA), referendum campaign broadcasts can only be made 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 campaign broadcasts can apply to the independence referendum.

The agreement between the Secretary of State for Culture, Media and Support and the BBC requires the BBC to broadcast referendum campaign broadcasts, as defined by PPERA.

The provisions of the Order mean that the BBC will have the same obligations and responsibilities in respect of independence referendum campaign broadcasts as it would have in respect of any PPERA referendum broadcasts.

Under PPERA, each designated campaign organisation can send a mail-shot to every elector or household and is not required to pay the postage costs for this.

This service is provided by Royal Mail and the costs of this are recovered from the Consolidated Fund.

The 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.

So, the section 30 Order 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.

If the Order is approved by both Houses of this Parliament, it will enable the Scottish Government to introduce a referendum Bill setting out:

  • the wording of the question
  • the date of the referendum
  • and the rules of the campaign for the Scottish Parliament to consider.

This devolution of power will ensure that the detail of the referendum process itself is “Made in Scotland” in the Scottish Parliament. This is a principle of great importance to the devolution settlement.

Furthermore, the approach here respects another key feature of devolution: that once a matter is passed to the Scottish Parliament, it is for that Parliament to determine the details of the legislation that follows.

The Memorandum of Agreement

However, our agreement does not just make the referendum legal and respect the devolution settlement.

It also sets out the conditions that are necessary and that have been agreed between the UK and Scottish Governments for the referendum to be fair and decisive.

In this context, it is important to consider the Memorandum of Agreement alongside this Order.

The Agreement is a statement of political intent by Scotland’s two governments.

It commits us jointly to an approach to and the delivery of the independence referendum which will ensure that the proceedings are fair and that the outcome is decisive.

With permission, Mr Speaker, I will therefore briefly describe that broader agreement.

PPERA framework and the Electoral Commission - reviewing the referendum question

At the heart of any fair referendum must lie a set of rules and processes that have the support of both sets of protagonists.

For the outcome to be legitimate, both sides of the argument must have faith in all aspects of the referendum.

That is particularly true when we are considering the future of our nation.

So, the agreement sets out the commitment of both Governments to the normal rules and procedures that govern referendums in the UK as contained in the PPERA.

A core part of the PPERA process is the central role of the Electoral Commission.

The two Governments have agreed that the Electoral Commission must review the proposed referendum question and that its report will be laid before the Scottish Parliament. That process is underway.

Since PPERA came into force, there have been three referendums held under that legislation:

  • the North-East Regional Assembly referendum in 2004,
  • the referendum in Wales on further devolution in 2011,
  • and the referendum on the Voting System for the UK Parliament, also held in 2011.

In all three cases, the Electoral Commission reviewed the Government’s proposed question; provided its advice; and the Government responded by revising the questions in line with the advice.

Of course in the past, some Members on the Scottish National Party benches have referred to the wording of the proposed question for referendums on Local Council Tax.

The Government made clear when it brought forward the regulations to provide for these referendums that discussions were ongoing with the Electoral Commission on the wording of the question.

Revised regulations were tabled on the 8th January and the Electoral Commission have confirmed that they are content with the revised wording.

Under the terms of the Edinburgh Agreement, it will be for the Scottish Government to respond to the advice of the Electoral Commission.

The Scottish Government has committed to put before the Scottish Parliament its response to the Electoral Commission’s recommendations.

This means that the Scottish Government will be held to account by the public and Parliament alike for how it responds to that advice.

In this case, all Opposition leaders in the Scottish Parliament have stated their intention to abide by the Electoral Commission’s judgment.

To do otherwise would be a significant step, for which there would be a political price.

Referendum campaign finance

As I have already set out, both Governments recognise that the referendum process must be seen to be fair by both sides in this campaign.

This point applies across the process, but perhaps particularly in relation to the financing of the campaign.

The Agreement ensures that the independent Electoral Commission will also provide the Scottish Government with advice on the appropriate spending limits for the two campaigns and the parties.

This 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 apply to elections to the relevant legislature.

In its response to both Governments consultation documents, the Electoral Commission provided its view that the model remains appropriate for the Scottish independence referendum.

The Electoral Commission has also met with the parties represented in the Scottish Parliament to seek their views on the finance arrangements.

When the Scottish Government sets out its final proposals for financing the referendum campaign in its Referendum Bill, it must set itself aside from its own campaigning interests and recognise that its approach is being watched by all of Scotland, and indeed by the international community.

This is a point which the Deputy First Minister herself has recognised when she has rightly said the poll must satisfy the highest international standards.

The referendum franchise (16 and 17 year olds)

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 – and this is set out in the Edinburgh Agreement.

In addition the Scottish Government propose to give 16 and 17 year olds the right to vote. I recognise and respect the fact that there are differing views on this issue 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, however.

But views on both sides of the argument can be found on both sides of the chamber.

In devolving the power to hold the referendum, however, we respect that this is a matter 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 that the UK Government is responsible for.

I fully expect that the Scottish Government’s proposals will be debated robustly in the Scottish Parliament.

But let me be clear, it will be for the Scottish Government to make the case for this proposal there and to deal with the issues that arise.

And let me be equally clear that any decision taken by the Scottish Parliament for the referendum will not affect the voting age for parliamentary and local government elections in the United Kingdom.

This remains the responsibility of this Parliament alone to determine.

Paragraph 30 of the Edinburgh Agreement

Let me turn now to one issue which has attracted some 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.

There have been some creative interpretations of this paragraph in recent times.

So I want to take this opportunity to restate its clear and obvious meaning.

Paragraph 30 itself reads:

“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 and which produces 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 today.

It means that if the referendum follows the path set out in the Order and Agreement, its outcome will be decisive.

And it means that, regardless of what the result is, that constructive relationship should continue as we move forward.

That is good practice and common sense.

But what it does not mean is that, in the event of a yes vote, the remaining UK would facilitate Scotland’s every wish - no more than an independent Scotland would unquestioningly facilitate the wishes of the remaining UK.

Inevitably, when there are two separate countries, there are two sets of interests - sometimes mutual, sometimes at odds.

So it is in the UK’s relationships with its closest allies today.

And so it will always be between separate, sovereign states.

So the Edinburgh Agreement - particularly its Paragraph 30 - is a statement of our determination to hold a referendum that is legal, fair and decisive.

It does not and cannot pre-empt the implications of that vote.

And it is important that everyone is clear about that reality.

Scotland’s future within the UK will be the most important decision we, as Scots, 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 Governments 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 the substance of this debate.

It is now essential that the referendum decision is focused on determining whether Scotland chooses to remain an integral part of the most successful partnership of nations the world has ever seen; to remain part of a family of nations that works in the interests of all; or whether Scotland wishes to leave and go it alone.

That is not a decision that should be taken lightly. It is a decision that should be taken after examining all 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 the autumn of 2014 in choosing to stay as part of the United Kingdom.

We are indeed better together.

In the meantime, I commend this Order to the House.

Published 15 January 2013