Referendum

Part of Clause 80 – in the House of Commons at 12:00 am on 18th July 1978.

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Photo of Mr Leon Brittan Mr Leon Brittan , Cleveland and Whitby 12:00 am, 18th July 1978

Anyone who listened to what I said would not have thought that I was scaremongering. What I said was by way of example and was not meant as any sort of prediction. In stressing that, I was seeking to pre-empt any attempt on the past of the hon. Member for Dundee, East (Mr. Wilson) to use my example in any way except as an example. We might be faced with a national defence crisis. I do not expect anything of that sort, but I am sure that even the hon. Gentleman will accept that if there were a crisis in that area of our national life, the creation of the Scottish Assembly could not be something that the House would necessarily think should be done at such a moment.

The purpose of the amendment is to deal with a situation in which the House for one reason or another—the right hon. Gentleman and the Government as a whole have stressed that the discretion will remain with it and must remain with it if the referendum is to be consultative in character—decides not to pass the commencement order. The question that the other place asked us to consider was "what happens if the commencement order is placed before the House and rejected?" Does the Bill remain in limbo? The answer that the other place came up with was that in that event it would be wrong that the Bill should remain in limbo and that the House of Commons should be given the opportunity to decide whether it wished to repeal the Bill. In those circumstances it was said that it would be right for the House of Commons to have the repeal order before it to decide what to do.

It does not necessarily follow that the House would vote for repeal. There could be a situation in which the House genuinely thought it right for the measure to remain on the statute book—for example, if the House had not supported the commencment order because there had been a national crisis or, less dramatically, if the preparations necessary for the creation of the Assembly were not sufficiently far advanced. In that event there is no doubt that the House would express the view that the measure should remain on the statute book and that it would not pass the repeal order. It would be open to the Government to come forward with it at another time.

It is also conceivable that the House could refuse to pass the commencement order for a more substantial reason of a more permanent character related to the outcome of the referendum, and that in form the vote not to pass the commencement order was in reality and in substance a vote not to enact the Bill and not to bring it into effect.

I suggest that in that event it would be far better for the House to face reality and to decide whether it favoured the repeal of the Scotland Act. It would lead to far more conflict, which is what we have consistently sought to avoid, if the measure were to stay on the statute book with the possibility of it coming up again and again for enactment.

The only obligation that the amendment puts upon the Government is for them to lay before Parliament a draft repeal order. It would then be for the House to decide what to do. What is more, it would be for the Government of the day to seek to advise their supporters, if they so wished, not to support the repeal order.

The Government should be especially familiar with that possibility. If we look back to the episode of the parliamentary boundary commission before the 1970 election, we recall one of the more squalid and disreputable episodes in the career of the present Prime Minister. At that time the independent judicially chaired Commission brought forward proposals and the Government did not wish to lay the order before the House to implement them. Eventually, the Government were threatened with action in the High Court. There was an action for mandamus to compel the Government to lay the order before the House.

What did the Government do? It was a squalid and disreputable episode that the Prime Minister might wish to forget if not to disown in his more statesmanlike moods. The Government put the order, under threat of legal action, before the House and solemnly advised their own supporters to troop through the Lobbies and vote it down. That is what happened. It is not a happy precedent but it illustrates that if the situation that I have envisaged occurs it will be open to the Government to advise their supporters against a repeal.

All that this amendment does is to provide that if the House of Commons, exercising its discretion following from the concept of a consultative referendum, decides not to pass the commencement order, it should be given an opportunity —and no more than an opportunity—to decide whether it wishes the Bill to remain on the statute book or to repeal it. Because the amendment gives the House that opportunity and fills a gap in the Bill, I advise my right hon. and hon. Friends to support it.