Scotland Act 1998 (Modification of Schedule 5) Order 2013 [Draft]

– in the Scottish Parliament on 5th December 2012.

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Photo of Tricia Marwick Tricia Marwick None

The next item of business is a debate on the Referendum (Scotland) Bill Committee’s first report in 2012 on the Scotland Act 1998 (Modification of Schedule 5) Order 2013 [draft]. Members who wish to take part in the debate should press their request to speak buttons now. Bruce Crawford will open the debate on behalf of the Referendum (Scotland) Bill Committee.

Photo of Bruce Crawford Bruce Crawford Scottish National Party

I begin my contribution to this short but important debate by stating that all the committee’s members recognise the importance of the role that Parliament has asked us to undertake. During the coming months, we will have the privilege of scrutinising the legislation that the Scottish Government will submit to the committee and which will—I feel the weight of history bearing down on me—enable the people of Scotland to make their most important decision in more than 300 years.

In autumn 2014, the people of Scotland will make their choice, and members of the committee are seized with an understanding of the importance of the role that we have been asked to discharge. Indeed, it is safe to say that the committee members feel honoured to have been asked to serve the people of Scotland in this way. I also know that we will all want to play a full part in ensuring that the legislation that is laid before Parliament is fit for purpose and that it commands not only the confidence of Parliament, and of both Governments but—most important—the confidence of the people of Scotland. It is therefore vital that the bills be subjected to the most detailed and comprehensive scrutiny. I know that the committee’s members are looking forward to undertaking those responsibilities.

We are already considering whether we should appoint an adviser to help us with our work, and next week we will begin the task of considering the evidence and information sessions that we will have to have in the new year to help us to get to grips with the potential complexities of the legislation. However, all that is for the future.

The committee’s first task was to consider the Scotland Act 1998 (Modification of Schedule 5) Order 2013 [draft], also known as the draft section 30 order, which provides the legal framework for the referendum bill and for the paving bill on aspects of voter registration. The draft order was, of course, announced as part of the historic Edinburgh agreement, which was signed on 15 October 2012, and the order was laid before the United Kingdom and Scottish Parliaments on 22 October.

The Edinburgh agreement commits the Scottish and Westminster Governments

“to work together to ensure that a referendum on Scottish independence can take place” and to ensuring that the referendum will

“have a clear legal base be legislated for by the Scottish Parliament be conducted so as to command the confidence of parliaments, governments and people”, and

“deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect”.

The committee took oral evidence from a number of witnesses, in particular from the Deputy First Minister, Nicola Sturgeon MSP, and from the Secretary of State for Scotland, Michael Moore MP. On behalf of the committee, I thank them both for the open and straightforward way in which they dealt with the questions that members put to them. I will come back to talk about the oral evidence sessions later.

The committee also received written evidence from nine organisations or individuals. At this stage, I extend my sincere thanks to all who provided us with evidence to help us in our deliberations. I also thank the clerking team, the parliamentary legal advisers and the Scottish Parliament information centre, all of whom helped to support the committee in its work and its coming to its conclusions.

The committee was established on 23 October and our call for evidence was published on 26 October. Oral evidence was taken at meetings on 8 and 15 November. That culminated in the committee’s report, which was published on 23 November.

The timescale that was set for undertaking our initial task looks pretty efficient to me. Much of that is down to the clerks, whom I thank on the committee’s behalf for diligently going about their tasks with short notice to get the show up and running. I think Tavish Scott was the first committee member to thank the clerks for the production of a well-constructed draft report. That certainly helped all members to sign up unanimously not only to the draft order but to the committee’s report.

I thank my colleagues on the committee for the constructive way in which they went about their business. That made my job as a first-time convener of a parliamentary committee all the easier. I thank the committee for that and for gently reminding me that I am no longer a minister and that I now have a different modus operandi. I will try hard to remind myself of that as we scrutinise legislation that the Scottish Government introduces.

I return to the evidence that the committee took. As well as taking oral evidence from the Deputy First Minister and the Secretary of State for Scotland, we heard from academics: Professor Aileen McHarg, Alan Trench, Dr Nicola McEwen and Navraj Singh Ghaleigh. I will touch generally on the evidence.

On the significance and effectiveness of the section 30 order, witnesses agreed that the order’s purpose was to ensure that Parliament has the legislative competence to pass a referendum bill. The Deputy First Minister summed up the order’s importance by saying that it puts the referendum’s legality beyond effective legal challenge by using

“a perfectly legitimate, tried and tested, robust process.”—[Official Report, Referendum (Scotland) Bill Committee, 15 November 2012; c 86.]

On the conditions that the order imposes, witnesses agreed that it would require a binary choice and that a third or middle option, such as enhanced devolution, would be excluded. The Deputy First Minister told the committee that she regrets that there will be no option of a second question, but was prepared to make that concession as part of negotiating a wider package.

Witnesses placed great emphasis on the importance of the Electoral Commission’s role in ensuring the fairness of the referendum process. Witnesses accepted that the commission is an advisory body rather than a decision maker, but its expertise means that its views should always be carefully considered. The secretary of state said:

“The commission has great moral authority and established credibility. For that reason, I think that it would be extraordinary if serious recommendations made by the commission were disregarded.”—[Official Report, Referendum (Scotland) Bill Committee, 8 November 2012; c 44.]

The written evidence from individuals also flagged up wider issues that will need to be considered during scrutiny of the referendum bill.

Scrutiny of the draft order has provided clarity about the referendum’s legality. The committee unanimously welcomed and agreed the draft order and—if I have got this right—the wider Edinburgh agreement. I thank all the committee members for the constructive approach that they have taken so far and I sincerely hope that that will continue as the committee moves in the new year into its main task, which is scrutiny of the two Government bills that will set out the detail of how the referendum is to be conducted.

In terms of the evidence, the committee was particularly keen on the last sentence of the Edinburgh agreement, which says:

“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.”

That sets well the tone for the committee in the future.

It is appropriate that I recommend, on the committee’s behalf, that when we reach decision time, we unanimously approve the Scotland Act 1998 (Modification of Schedule 5) Order 2013 [draft].

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

I thank Bruce Crawford and the rest of the Referendum (Scotland) Bill Committee for proposing the debate. I welcome the committee’s report on the draft section 30 order and its unanimous cross-party agreement to recommend to the Parliament that the draft order be approved. I also thank the Presiding Officer for extending the time that was allocated to the debate, to allow members to discuss and explore more fully the issues that the committee’s report raised.

As we set out in our consultation paper in January, it is the Scottish Government’s intention to have a referendum on independence in autumn 2014. We believe that it should be for the Scottish Parliament to make the final decision on how that referendum will be run and to ensure that it meets the highest international standards. I am delighted that, in signing the Edinburgh agreement with the UK Government, we have succeeded in agreeing a clear process to achieve that, subject to the approval of the members here today and the Westminster Parliament, in due course. The section 30 order will enable the Scottish Parliament to pass legislation for a referendum that is very definitely made in Scotland and will be beyond effective legal challenge. I note that the committee’s report records that all witnesses agreed that the order that is before us is fit for purpose in that respect.

The agreement leaves it open for the Scottish Parliament to decide on the overwhelming majority of the referendum details. As Bruce Crawford suggested, we would have much preferred the Scottish Parliament to decide on whether there should be one question or two questions on the ballot paper, but that was the UK Government’s red line in the negotiations. Overall, though, I believe that the package that is encapsulated in the section 30 order and in the agreement ensures the primacy of this Parliament in legislating for a referendum.

The Scottish Government will set out detailed proposals for how we think that the referendum should be run in two bills that will be introduced to Parliament in early 2013. The substantive, main bill will be the referendum (Scotland) bill and, as members will be aware, we will also introduce a paving bill, which I am pleased to say will enable all 16 and 17-year-olds to participate by voting in the referendum—a proposal that I hope will meet with the approval of the Parliament.

Taken together, the proposals will cover the date of the referendum, the franchise for the referendum, the question to be asked, the referendum rules and campaign spending limits. Of course, all that will be informed by our consultation and by expert advice.

The analysis of the 26,000 responses to our consultation showed broad support for our initial proposals on these issues. The responses will inform the development of our more detailed proposals. In addition, my officials are in regular discussion with electoral professionals and experts, including the Electoral Commission, to ensure that the legislation will provide for a referendum that is run to the highest standards of transparency, fairness and propriety.

The role of the Electoral Commission in testing the question and overseeing the referendum more generally has been discussed at length in the committee’s evidence-taking sessions and elsewhere. Let me be clear about the Electoral Commission. The role that we envisage for the commission is exactly the same role that it would have if the referendum were being governed by the UK Parliament. As with all referendums that are held under UK legislation, the role of Government is to propose, the role of the Electoral Commission is to advise, and the role of Parliament is to decide. The commission shares that view.

Members will know that I have written to the Electoral Commission to ask it to begin testing the intelligibility of the proposed referendum question. The commission will publish its report in due course. The Government will consider it and Parliament will have an opportunity to make a final assessment of the question, as well as all the other proposals on the running of the referendum, when the referendum bill is introduced.

Photo of Christine Grahame Christine Grahame Scottish National Party

Is the cabinet secretary as surprised as I am that there is nobody on the Labour or Conservative front benches in this debate?

Photo of Margo MacDonald Margo MacDonald Independent

On a point of order, Presiding Officer. Would it be possible for us to talk among ourselves for two or three minutes while someone fetches some people to sit on the front benches of the two Opposition parties?

Photo of Patricia Ferguson Patricia Ferguson Labour

On a point of order, Presiding Officer. I politely point out to my colleagues that I am the spokesperson for Labour on this issue. I happen not to be sitting in the front row because I was in this seat for the two previous debates and did not think it polite to remove those who were sitting in the front row earlier than was necessary. I will be speaking for Labour from where I am sitting.

Photo of Annabel Goldie Annabel Goldie Conservative

On a point of order, Presiding Officer. If I may clarify, I am here as my party’s representative on the Referendum (Scotland) Bill Committee, an undertaking that, I think, everyone in the chamber recognises to be significant and important. I thought it appropriate, in that role, that I should sit where I am sitting.

The Presiding Officer:

There is no need for me to respond to the points of order as we have had a fair airing of them. We should now get back to the debate, because time is extremely tight.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

It is not for me to comment on decisions that have been taken by the Opposition parties except to say that I think that Margo MacDonald and Christine Grahame raise legitimate points. Anybody looking into the chamber would probably wonder why the front benches of the main Opposition parties are empty.

To move back to more important matters, I will conclude my point about the Electoral Commission. We will take the views of the Electoral Commission seriously and I hope that members will be assured that, ultimately, it will be for members of this Parliament to make the final decisions on the legislation that will be put forward.

To conclude, because I know that time is tight, I am pleased that, in passing the section 30 order—if it is indeed passed by this Parliament and by the UK Parliament—we will move from process on to the substantive debate about why Scotland should be an independent country.

Earlier this week, I set out the Scottish Government’s vision for Scotland as an independent country. We know why we want to bring powers home to Scotland. We want our country to have a sustainable economy that works for the many, not for the few; we want our country to prioritise the wellbeing of its citizens over spending on weapons of mass destruction; and we want Scotland to be a country with enterprise and social justice as its hallmarks. We believe passionately that having the powers of independence is essential to achieving that vision of Scotland that we on this side of the chamber share. We look forward to making our arguments and I encourage those who argue for business as usual to do likewise. Then we will have a rigorous debate and the people of Scotland will take the decision.

I urge all members to vote in support of the order so that we can move forward with this extremely important debate in our country’s history.

Photo of Patricia Ferguson Patricia Ferguson Labour

On behalf of Scottish Labour, I sincerely thank the convener of the Referendum (Scotland) Bill Committee for—not once, but twice—giving the full title of the section 30 order. As a result, I feel that I have no obligation to do so and will therefore refer to it simply as it is known by us all, as the section 30 order. I thank Mr Crawford for that. I also add my thanks to the committee’s excellent clerking team, who have served the committee well and kept us on track with a time-critical process. I look forward to working with them and with colleagues over the coming months, when I suspect that the challenges may be even greater. I also register my thanks to the witnesses from whom we heard, some of whom made the effort to assist the committee at very short notice indeed.

As we know, the committee’s first task was to scrutinise the section 30 order agreed by the UK and Scottish Governments, which provides the legal framework for the referendum bill and for the paving bill concerning voter registration, both of which the committee expects to receive early in 2013.

In the Edinburgh agreement, the two Governments agree

“to work together to ensure that a referendum on Scottish independence can take place.”

They agree that the referendum should

“have a clear legal base; be legislated for by the Scottish Parliament; be conducted so as to command the confidence of parliaments, governments and people; and deliver ... a result that everyone will respect”.

That is to be welcomed and clearly lays out how both Governments expect the process to be taken forward.

The main purpose of the draft order is to extend this Parliament’s legislative competence to enable it to pass the legislation that is needed to enable a referendum to be held. The order attaches three conditions: first, that the referendum cannot be held on the same day as any other referendum that is legislated for by the Scottish Parliament; secondly, that it must be held

“no later than 31st December 2014” and thirdly, that it must involve a single ballot paper that offers

“the voter a choice between only two responses”.

The committee listened carefully and with great interest to the views of witnesses as to the legal standing of what has come to be known as the Edinburgh agreement. Although there are important points of law surrounding the issue, it is perhaps the evidence of the Deputy First Minister and the secretary of state, who both indicated that the two Governments were committed to the argument—sorry, committed to the agreement—that is the most important point. Perhaps they were committed to argument on another day, but on this occasion they were committed to agreement, which is to be welcomed.

As the committee’s report makes clear, witnesses emphasised the importance of the role that the Electoral Commission will play in ensuring the fairness of the process and in considering the question. Alan Trench stated:

“If we got to the point where Parliament did not follow the advice, that would raise serious problems for the referendum’s conduct and for respect for the outcome.”—[Official Report, Referendum (Scotland) Bill Committee, 8 November 2012; c 30.]

The committee also noted that article 4 of the order replicates a power to allow campaign broadcasts by designated campaign organisations in respect of the referendum. That was considered an important provision. I very much agree with that.

It is perhaps worth noting for future discussion that the Scottish Council of Jewish Communities pointed out in written evidence that holding the referendum on a Saturday would disadvantage Jewish voters and people of other faiths for whom Saturday is the day of rest. I hope that, when we consider the date on which the referendum will be held, we will take those views very seriously. Similarly, the Scottish Council on Deafness reminded Parliament that the needs of deaf and hard-of-hearing voters will have to be considered when material and literature are being produced. I am sure that there will be other matters that we will wish to consider at the time.

On behalf of Scottish Labour, I welcome the order as an important mechanism to provide a clear legal route for the referendum that is to come.

Photo of Annabel Goldie Annabel Goldie Conservative

As the Conservative member of the Referendum (Scotland) Bill Committee, I say that it is a pleasure for me to take part in the debate, as it was a pleasure, with colleagues on the committee, under Bruce Crawford’s capable convenership, to tackle the first part of our work, which was scrutiny of the draft Scotland Act 1998 (Modification of Schedule 5) Order 2013. Not for the first time, a title that looks slightly dry in the abstract turned out in practice to be extremely interesting.

The role of the Scottish Parliament committee, as its convener said, is important because, although the order is a United Kingdom statutory instrument, it can proceed to law only if it is approved by resolution of both houses of the UK Parliament and the Scottish Parliament. Therefore, there is already enough material to provide a paradise for constitutional lawyers and other gurus and aficionados of parliamentary process. I share the convener’s admiration and appreciation of the experts in those fields, who provided useful evidence to the committee. In their absence, we would have been like shepherds without a star, to use a seasonal metaphor, although I sometimes felt that I was looking at a number of stars and was slightly dazzled by them all. However, that evidence was extremely helpful and provided useful pointers to the committee not only for the essentially very technical process of scrutinising the draft order but in giving a backdrop to the broader process of the bill and the paving legislation for the proposed extension of the franchise, both of which are to follow.

Let me deal with the simple technical issue of the draft order. Procedurally, of course, it can only be approved or rejected, so a relatively straightforward choice lay before the committee. Given the prelude of the Edinburgh agreement between the UK and Scottish Governments, approval by the committee was, arguably, predictable. The only factor that might have precluded such an outcome would have been explicit evidence that the order was incompetent or materially flawed as drafted. No such evidence was provided, and the committee unanimously approved the order. Members are invited to do the same this evening.

I would like to cover the broader issues that the scrutiny process flagged up, the first of which is the status of the Edinburgh agreement. Paragraph 22 of the committee’s report notes:

“There was broad consensus among oral witnesses about the significance of the agreement—which the Secretary of State described as ‘historic’. For the Deputy First Minister it was ‘a watershed moment in Scotland’s home-rule journey’.”

Whatever the different political destinations that the two Governments desire, it is clear to me that both have confidence in and respect for the agreement, and that they both wish the ensuing process to be conducted in the spirit of the agreement. That is vital to ensure public confidence in the whole process. Indeed, as paragraph 23 of the report makes clear, that was underpinned by the secretary of state and the Deputy First Minister. I welcome Nicola Sturgeon’s clarity in saying that the Scottish Government is

“honour-bound politically and morally by the Edinburgh agreement, which makes it clear that, where appropriate, the rules and certainly the spirit of PPERA will govern the referendum.”—[Official Report, Referendum (Scotland) Bill Committee, 15 November 2012; c 85-6.]

It is important that the spirit of the agreement and what it sets out to do are mirrored by the subsequent actions of politicians. It is therefore worth repeating the criteria set down by the agreement for the referendum, which were that it should have

“a clear legal base; be legislated for by the Scottish Parliament; be conducted so as to command the confidence of parliaments, governments and people; and deliver a fair test and a decisive expression of the views of the people in Scotland and a result that everyone will respect.”

I welcome the convener’s observations in relation to the Electoral Commission. The politics and debate around the referendum will be furious and passionate. In deference to the people of Scotland, let us ensure that the process is pure and above reproach.

The Presiding Officer:

We now move to open debate. I point out that speeches must be a maximum of four minutes. Could members please keep their speeches tight, as I am trying to give everybody who wishes to speak in the debate some time to do so?

Photo of Linda Fabiani Linda Fabiani Scottish National Party

It is an honour for someone who believes in independence for her country to speak in this debate, which I believe is a step on the way to independence, as was serving on the committee, which was also a huge honour. The first task—I am with Patricia Ferguson on this—is to say that we all understand the order as a draft section 30 order.

The order is a result of the Edinburgh agreement, which was agreed on 15 October 2012. The agreement committed the two Governments to

“work together to ensure that a referendum on Scottish independence can take place”.

As part of that, a memorandum committed the two Governments to

“continue to work together constructively in the light of the outcome of the referendum”— whatever it is—

“in the best interests of the people of Scotland and the rest of the United Kingdom.”

For me, that was a major shift, given all the nonsense that was spouted not that long ago when we announced that we wished to have a referendum. The sense of mutual respect that came from the agreement was so worth while. It was apparent when our Deputy First Minister and Westminster’s Secretary of State for Scotland came to the committee that they had mutual respect for each other and intend to go forward in that way.

Photo of Rob Gibson Rob Gibson Scottish National Party

I wonder what Linda Fabiani might say about the discordant note from the House of Lords report that states that the UK Parliament

“is to be invited to approve the draft section 30 Order with few guarantees that the PPERA scheme governing the fairness of referendum campaigns will be made to apply in Scotland.”

Photo of Linda Fabiani Linda Fabiani Scottish National Party

I remember Rob Gibson raising that issue at committee and Stewart Maxwell following up on it. My view on that is clear: how the referendum is run should be decided by a democratically elected Parliament and it has got nothing to do with a bunch of unelected lords and ladies.

Our referendum will be made in Scotland and it will be for this Parliament, in the words of the Deputy First Minister,

“to make the final decision on how the referendum will be run and to ensure that it meets the highest international standards.”

The Deputy First Minister was clear in her evidence to the committee about the respect that will be given to the Electoral Commission and the respect that the Scottish Government gives to this Parliament and to all the different players in the process. She also said:

“Any Government anywhere in the UK would not depart from Electoral Commission advice unless there was a very strong reason for doing so, and any Government that did so would have to justify itself before the Parliament.”—[Official Report, Referendum (Scotland) Bill Committee, 15 November 2012; c 77, 78.]

There are proper roles for Government and Parliament in the process, and we have to respect the process.

I think that that is the way in which we can move forward, if everyone decides to carry on along the road of respect. There are those who have tried to suggest over the piece that the Scottish Government is cavalier in its attitude to such things. However, the issue is far too important for anyone who believes in independence.

The Presiding Officer:

The member needs to bring her remarks to a close.

Photo of Linda Fabiani Linda Fabiani Scottish National Party

I look forward to addressing the other elements of the committee’s interest: votes for 16 and 17-year-olds, and the referendum bill itself. I believe that we are on a journey to independence, with all the potential that that brings. I commend the order as a step on the way.

Photo of Richard Baker Richard Baker Labour

This has rightly been described as an important moment in the debate on Scotland’s constitutional future. Agreeing to the motion will enable the Parliament to determine the legislative process for the referendum. We have long made the case that that is the right way to proceed.

In the time before the referendum I suspect that there will be few moments of consensus. However, it is right today to congratulate all parties, who have worked to ensure that we can all agree to the motion at decision time. We are better together, after all.

Both Parliaments and both Governments have done the right thing in ensuring that the referendum bill on which the Parliament will vote will follow a legal process and have the right legal authority. I congratulate UK and Scottish Government ministers, not least Mr Crawford, on achieving the agreement. To have proceeded without the legal authority to do so would have jeopardised the whole process and potentially created a chaotic situation on an issue that is of the utmost importance. The consensus to allow the Parliament to proceed in the way that is envisaged is welcome.

All parties must have confidence that the referendum process is being conducted fairly and properly. Of course there will not be agreement on every point; to get to this stage there has had to be give and take on both sides. We agreed that a single question should be put, which was a matter of huge debate—although apparently we all supported having a single question—and we agreed a timescale, although we thought that the referendum could have been held far sooner. We await the exact date and look forward to ministers confirming it in the Parliament soon, although we suspect that it has already been announced in The Sun on Sunday. We shall see.

The terms of the section 30 order have been agreed, but other important issues were raised in evidence to the Referendum (Scotland) Bill Committee. I highlight the importance of the Electoral Commission’s status in providing oversight of the referendum, which members mentioned. It strikes me that the Electoral Commission’s role is even more important in the unprecedented situation of there being a majority Government in Scotland.

Crucial issues remain to be resolved, including the spending limits for the campaign, which must be reasonable enough to allow proper engagement with the electorate in a short campaign for a vote in which turnout is likely to be much higher than it is in normal elections.

The final wording of the question remains to be decided. That is a matter for debate, because there is no consensus on the current wording. It is crucial that the Scottish Government not only seeks but abides by advice from the Electoral Commission on the issue. In his evidence to the committee, Alan Trench was right to say that giving the commission a more limited role than is envisaged in the agreement would carry significant “legal and constitutional risks”.

I hope that ministers will reflect carefully on those issues in the time ahead. I hope that the debate can begin to move beyond process and on to the substantial issues in the run-up to a crucial referendum, the result of which I am hopeful and confident will be not the break-up of the United Kingdom but a confident Scotland deciding to retain its membership of a strong and successful partnership of nations.

Photo of Willie Rennie Willie Rennie Liberal Democrat

First, I put on record my appreciation for the work of John Park. I think that this is the last time that I will speak in the chamber before he departs on Friday. He has been an excellent member of the Scottish Parliament for Mid Scotland and Fife and I will be sad to see him go. He is a great loss to the Parliament. [Applause.]

I am here as Tavish Scott’s substitute, because he is not well. I was once a substitute when I was a boy playing football at school, but I was never a great success at that, so members should not get their hopes up.

We should all be proud of the section 30 order, because it delivers a mature approach to providing for a referendum in which the people and not the courts will decide on Scotland’s constitutional future. Our party supports votes for 16 and 17-year-olds. We were sceptical about the proposed mechanism in that regard, but we support the policy and are pleased that it is moving forward.

The order also delivers a referendum that will be overseen by the Electoral Commission. I hope and am sure that the Scottish Government will give the commission the respect that it is due. I hope that the Government will also recognise that in the referendum there must be losers’ consent. We all need to buy into the process and accept the result. Treating the Electoral Commission with respect in that regard is especially important.

Fundamentally, as my colleague Michael Moore said, this is about delivering a legal, fair and decisive referendum, and I believe that the section 30 order does that. We were also pleased that the UK Government was able to help the SNP to deliver its manifesto promise, because otherwise it would have been difficult for it to do so. That promise was to deliver a single-question referendum. We in the Liberal Democrats were pleased to be able to help our colleagues in the Scottish Parliament to deliver a manifesto promise.

We also commend Bruce Crawford for the work that he did in the early stages as a Government minister and in the latter stages as a member of the committee. There were extreme voices on either side of the debate: people such as Michael Forsyth in the House of Lords, who believed that it should all be done in London and that nobody in Scotland or in the SNP should be trusted to do any of it, and others who said that London should have nothing to do with it, that it should all be done here and that nobody else should have a say. Bruce Crawford and latterly Nicola Sturgeon, but also my colleague Michael Moore managed to calmly but determinedly see their way through the myriad difficulties in achieving this. They achieved it, and I am pleased that they have done so.

However, there is one thing that I want to address. I think that we are slightly exaggerating the significance of paragraph 30. Of course the Government of the remainder of the United Kingdom and the Scottish Government would work constructively. We would expect neighbours to work constructively, and that would be the case. However, it does not necessarily mean that a foreign Government—that of the remainder of the United Kingdom—would accede or agree to every single demand of the foreign Scottish Government. We need to get this in context. Of course there will be respect, and both Governments will respect the outcome. I am sure that they will do that, because they will want to have a long-standing relationship.

The Presiding Officer:

The member needs to bring his remarks to a close.

Photo of Willie Rennie Willie Rennie Liberal Democrat

That is important, but please, let us put the matter in context. Of course they will agree, but let us not exaggerate the significance.

I commend the committee and the clerks for the work that they have done. It has been an excellent process and I hope that it can lead to a referendum debate that we can all be proud of.

Photo of Annabelle Ewing Annabelle Ewing Scottish National Party

I say at the outset what a great privilege it is for me to be a member of the Scottish Parliament’s Referendum (Scotland) Bill Committee. I add, although it will probably not come as a surprise, that that view is shared by my mother, Winnie Ewing, who is also very proud that I am sitting on the committee. It is a great pleasure, as the newest member with a full seat on the committee, to find myself surrounded by experienced colleagues from all sides of the political divide. I am pleased to report that our meetings thus far have been characterised by cogent debate and, at the same time, good humour, all facilitated by the excellent clerks at our disposal and, as other members have said, the legal adviser and SPICe. I sincerely hope that, as we move towards more contentious matters, the committee will continue to operate in such a constructive and positive manner.

The context of the setting up of the committee must be borne in mind, and that is the mandate that the SNP Government obtained to hold a referendum on the independence of our country further to its landslide in the Scottish parliamentary elections last year. Surely all democrats must accept that the Scottish Parliament in its current composition represents the vote of the people of Scotland in a democratic election—and yes, I say to Richard Baker that that is indeed a majority SNP Government. Surely all democrats must also accept that it is therefore the Scottish Parliament that must legislate on the referendum to ensure that it is indeed a referendum made in Scotland.

Photo of Stuart McMillan Stuart McMillan Scottish National Party

Does Annabelle Ewing agree that the section 30 order and the historic Edinburgh agreement allow for 16 and 17-year-olds to vote for the first time and that it is incumbent on us all, on both sides of the debate, to encourage 16 and 17-year-olds to vote and have their voice heard when it comes to the referendum?

Photo of Annabelle Ewing Annabelle Ewing Scottish National Party

I thank my fellow committee member Stuart McMillan for his intervention. He is correct that this is also a historic moment for Scotland because we will see 16 and 17-year-olds, rightly, take their part in the democratic process with the right to vote on the future of their country.

The committee has produced an excellent report on the draft section 30 order. As we have heard, the draft order resulted from the historic Edinburgh agreement and it will put it beyond any doubt—beyond any effective legal challenge, as the Deputy First Minister said—that this Parliament can indeed legislate for the independence referendum. The committee took written and oral evidence in its scrutiny of the draft section 30 order and thereafter agreed unanimously to the report and the recommendation that the draft section 30 order be approved. I sincerely believe that that will be seen as a historic moment in Scotland’s journey.

Contained in the report are perhaps portents of debates to come on the technical detail of the paving bill and the referendum bill itself. I look forward to those debates as a lifelong supporter of the independence of my country and as a democrat to my very fingertips. It will then be for the people of Scotland to decide their own future. What an attractive prospect that is.

Photo of Patrick Harvie Patrick Harvie Green

I thank my fellow committee members, the clerks, other support staff and our witnesses. I also thank you, Presiding Officer, and the Parliamentary Bureau, for ensuring that the committee was broad enough and that enough time was allocated to this debate for a wide range of voices to be heard in both parts of the process.

At a time when agreement did not seem to be around the corner, when the UK Government and the Scottish Government were slightly more at loggerheads earlier in the process, it was clear that both sides needed to give some ground. I am glad that the Scottish Government compromised on the role of the Electoral Commission and that the UK Government did not dig its heels in on the issue of votes at 16. It was necessary for both Governments to give some ground if agreement was to be reached.

I am glad that agreement was reached in the end, but I want to reflect on one issue: the issue on which the UK Government did decide, as Nicola Sturgeon said, to lay down a red line—the issue of a single question. I am no great fan of a devo max, indy light, devo in-betweeny option. I would not have campaigned for that had it been on the ballot paper. However, the UK Government’s decision to rule out allowing this Parliament to make that decision or offer that option in effect closed down the possibility of further devolution—potentially for a generation or more.

In this context, if there is a no vote in 2014, UK politicians, the UK electorate and much of the UK media will turn around and say, with a single voice: “Enough with Scotland already. You’ve had your Parliament. You’ve had your devolution. You’ve had your Scotland bill. You’ve had your referendum.” We will have passed up the only, once-in-a-lifetime opportunity. I can live with the UK Government’s decision to close down this referendum into a single question, but they are the ones who should be worrying about it. They are the ones who have turned this debate into a once-in-a-lifetime opportunity for Scotland to set itself on a new path.

I look forward to the debate and I look forward to working with my fellow committee members to scrutinise the legislation on votes at 16 and on the referendum. More to the point, I look forward to getting into the campaign.

Photo of Margo MacDonald Margo MacDonald Independent

I will pick up where my colleague Patrick Harvie left off. When speaking to people who say that they are not sure about which way they will vote, I say, “Think what you will feel like on the day after the referendum if you vote no.” That usually makes them think and focuses their minds.

What Patrick Harvie says is absolutely true. From the point of view of people on the other side of the border, we will have created all this fuss, then, after getting the chance, bottled it. We will be disparaged and despised in some quarters and we will turn in on ourselves.

However, one or two things have occurred to me as I have been listening to the debate—and I thank all the folk who have brought it to this stage. I wonder whether members have considered whether the bill could be challenged under European law. Everyone said that it could not be challenged, but we might find that there are wrinkles in EU law, so I would like to know whether we are looking at that.

I also want to know what the relationship between the bill and the constitution will be. As I recall, the SNP had a party policy for a written constitution. Various things have been promised by way of policy from the party in government—for example, that the monarchy would remain—so who knows whether the constitution would have to be determined after independence had been established?

Could another option—devo max, perhaps—be introduced through an amendment? I am not at all sure. Others have said that it could not be, but I cannot see why it should not be.

I am a bit concerned about campaign spending. Richard Baker talked about keeping an even field, but we cannot keep an even field in campaign spending for something like this. Everybody pitches in, as we saw the American Government was willing to do.

Photo of Richard Baker Richard Baker Labour

I was talking simply about a short campaign. A long campaign is another issue, but in a short campaign that can be determined.

Photo of Margo MacDonald Margo MacDonald Independent

I have to inform the member that, in this case, size does not matter. [Laughter.] Will all campaign teams have access to television, regardless of their size? There might be only one in my campaign team—that is why I am asking.

What happens if opinions change and we bottle it? How will we face up to the second-rate place that we will have become? Although we are not at that stage with the bill, everyone should remember that the purpose of the bill is to make every Scot feel better about himself or herself in Scotland.

Photo of Annabel Goldie Annabel Goldie Conservative

Although short, the debate has been positive and constructive. I will pick up where I left off on the question of process. I was reassured by many of the speeches and give praise where praise is due. Willie Rennie was right to say that the atmosphere had become quite febrile, and it is appropriate to pay tribute to Michael Moore, my colleague David Mundell, Bruce Crawford and Nicola Sturgeon for the roles that they played in gathering the evidence and constructing the basis of the edifice of the process, which is the Edinburgh agreement.

It is interesting that, in the course of the debate, a number of members have recognised that the integrity of the process is vital. One part of the operation is the passion and the politics that will be the hallmark of the campaign and the debate, which I am sure will be engaged in with fervour, enthusiasm and energy on all sides, regardless of which view we support. I am encouraged to see, however, a recognition that it is important that the other part of the operation is ensuring that the process remains unimpeachable. Without that, there will not be the necessary degree of confidence among the public.

A number of members commented on the role of the Electoral Commission, and I thought that the report was very helpful in that respect. Many witnesses in the committee laid great emphasis on the importance of the role of the Electoral Commission in ensuring that there is the necessary fairness to reassure the public that no one set of politicians is trying to hijack the process for a particular end. The Electoral Commission will, of course, also have an important task in assessing the intelligibility of the question.

I was struck by what one of the witnesses, Alan Trench, pointed out. I quote paragraph 34 of the committee’s report, in which we are told that he said that,

“since the Electoral Commission was not mentioned in the section 30 Order itself, it would in principle be possible for the Parliament to pass a Bill that gave the Commission a more limited role than that envisaged in the agreement.”

However he warned that

“such an approach would ... carry significant legal and constitutional risks, and also political risks, as it would jeopardise the perception of fairness that was so important to securing respect” for the process. That view was pretty well agreed by Professor McHarg.

It has been helpful to hear, in the course of the debate, acknowledgement by the Deputy First Minister, Linda Fabiani, Richard Baker and Willie Rennie that we have a task before us in ensuring that we attain the highest standards of fairness and transparency that everybody—regardless of what side of the argument they are on—wishes to see. That is vital to the integrity of the process.

We understand that passions will run high and that politics will play a momentous role in the debate, but I hope that it will be possible to conduct the debate with a degree of mutual respect and courtesy. The people of Scotland deserve that, and we de-serve them if we do not acknowledge that obligation that is on us all.

Photo of Patricia Ferguson Patricia Ferguson Labour

I thank Willie Rennie for his kind remarks about our colleague and friend, John Park, who will be leaving Parliament. Willie Rennie is absolutely right to say that he will be a loss to the Parliament; he will certainly be a loss to the Labour group but fortunately not to the wider Labour movement. We wish him well.

This has been an interesting, if brief, debate, as was the committee’s consideration of the section 30 order. However, it has allowed a proper discussion of section 30 order issues and, of course, the related memorandum of understanding between the UK and Scottish Governments.

The section 30 order is the first step in the parliamentary scrutiny of the process that will lead to a referendum being held in less than two years from now. Although there has been much discussion at large about what a separate Scotland may look like, there has not been an opportunity for Parliament and the people to consider the ideas that the Scottish Government has. I genuinely look forward to the Referendum (Scotland) Bill Committee having the opportunity to consider, scrutinise and report to Parliament on the process. I hope that Parliament will give full consideration to the white paper and the draft legislation that is to follow the section 30 order.

We know that there are strong opinions for and against independence—we have witnessed those many times in the chamber. The phase of the discussion that we now begin is different. Both sides of the argument must realise that the decision that the people are being asked to make is of the utmost importance. Whatever the result, it is clear that this is the most important decision that any of us—or Scotland—will be asked to make in more than 300 years.

We owe it to the people of Scotland to make the case passionately but in a sensible and reasonable fashion. We must be clear and honest about our intentions and our views. We must engage in a debate about our ideas on the economy, society and culture in its broadest sense. Our debates here and elsewhere should respect the contrary point of view because the people of Scotland need to hear the arguments and must not have them drowned out by the most strident voice.

As colleagues have said, the constructive work by the UK and Scottish Governments on the section 30 order is laudable; it shows what can be achieved. I want to add my thanks to all the ministers here and in Westminster for working together constructively to get us to where we are today.

On Monday, Nicola Sturgeon invited the parties of this Parliament that do not agree with the policy of independence to join with the SNP after a yes vote to work with it to shape the new Scotland. From the Labour benches I say that we would, of course, work with the SNP in the best interests of the Scottish people if that were to be the result but, as I do not believe that the campaign for independence will succeed, I say to Nicola Sturgeon that we hope that she will work with us to craft the new Scotland that we want to emerge when Scotland rejects independence.

Over the next two years we will have disagreements and arguments about the kind of Scotland that we want to see. That is absolutely right, but the people of Scotland are relying on all of us to provide them with a clear and coherent choice to allow them to make an informed decision when they go to vote in 2014.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

I say to Patricia Ferguson that I believe in building a new Scotland, but the new powers of independence are needed to bring that about.

I add my voice to those who have wished John Park well. In my experience, he is someone who is always courteous, thoughtful and perhaps more inclined to build consensus than many are. He will be missed in this chamber. I am sure that every member wishes him well, as I do.

I also thank all members who have contributed to this short but worthwhile debate. Also in the vein of thanking people, I thank Bruce Crawford for his contribution not just to the committee but, as a minister, to the process itself. It is no exaggeration to say that the agreement that I was able to conclude would not have been possible without Mr Crawford’s enormous contribution, and I thank him warmly for it.

I also pay tribute to Michael Moore. I believe that the positive, constructive and respectful spirit in which the agreement was negotiated and concluded points the way towards how our two Governments will continue to work together as friends and partners should Scotland become an independent country. It is worth saying that it is in the vested interests of those who oppose independence to say that everything would be too difficult. However, the reality post the referendum will be very different, because many of the things that are in Scotland’s interest will also be in the interests of the rest of the UK and we will all work together to ensure that we serve the interests of the people we represent.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

In the light of that need for co-operation, is the cabinet secretary aware of section 2 of the Ireland Act 1949? It states:

“notwithstanding that the Republic of Ireland is not part of His Majesty’s dominions, the Republic of Ireland is not a foreign country”.

Would the cabinet secretary wish such a continuing relationship between Scotland and the rest of the UK after independence?

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

Indeed. If and when Scotland becomes independent, I will not regard people in England as foreigners, and I do not believe that they will regard us as foreigners either. We will be two independent, equal nations working together in the best interests of both. I think that that is a good relationship to aspire to.

We now have in place a clear process leading to a referendum in the autumn of 2014 that this Parliament will legislate for and which will allow people in Scotland to make their democratic decision. Of course, the next stage is for Parliament to scrutinise the primary legislation. A number of issues will arise in that respect, including the franchise, the question, the referendum’s rules and the spending limits. The Government will formulate its proposals with care, and I expect the closest scrutiny from the committee and Parliament as a whole. Linda Fabiani is absolutely right to suggest that it is not in the interests of anyone who believes in independence or who has campaigned long and hard for the referendum to do anything other than meet the highest standards of propriety and command the confidence of all sides. I believe and am determined that this referendum will do that.

I look forward to the substantive debate and to persuading people in Scotland that, as Margo MacDonald rightly said, they really do not want to wake up on the day after the referendum realising that they have opted for business as usual and passed up that once-in-a-generation chance to win the independence that will allow us to build the country that we want to be. That is the chance that we have in 2014, and I look forward to persuading the people in Scotland to seize it with both hands.

The Presiding Officer:

I call James Kelly to wind up for the committee. Mr Kelly, I would be obliged if you would continue until 5.59 pm.

Photo of James Kelly James Kelly Labour

I welcome the opportunity to conclude this debate on behalf of the Referendum (Scotland) Bill Committee. First of all, I thank the committee convener, Bruce Crawford, my fellow committee members, the clerks and all the witnesses who gave evidence in this short but important process.

On behalf of the committee, I also pay tribute to the ministers of both Governments for being able to reach an agreement that laid the basis for the process that we have moved forward on. As Patrick Harvie pointed out, it was clear that both Governments were at loggerheads earlier in the summer. The process is very important for the people of Scotland—Bruce Crawford has already highlighted the significance of the order before the Parliament tonight—and we needed some clarity about it.

One of the key issues was whether the Scottish Parliament would have the legal competence to run a referendum without the order. Although there are different views on that, there is agreement across the chamber that, as Willie Rennie said, we do not want a situation in which the courts would overrule the people. We want to be able to reach the decision in 2014 and be clear about the result. The section 30 order that we will, I hope, pass in a few minutes lays the basis for a clear legal framework.

Photo of Margo MacDonald Margo MacDonald Independent

Did the committee consider whether the section 30 order was compliant with European law?

Photo of James Kelly James Kelly Labour

I have looked closely at the order and the consequential amendment to the Scotland Act 1998. My view and that of other members of the committee is that a successful challenge under European law would not succeed, so I hope that Margo MacDonald is reassured by that.

Photo of Christine Grahame Christine Grahame Scottish National Party

Ah, an unsuccessful successful European challenge.

Photo of James Kelly James Kelly Labour

It is important that we have confidence in the process and that members have signed up to the section 30 order unanimously. It will set the platform for the referendum and, by amending the Scotland Act 1988, give the Scottish Parliament the legislative competence to hold the referendum prior to the end of 2014.

A number of speakers in the debate and witnesses at the committee referred to the importance of the Electoral Commission. Annabel Goldie was correct to pinpoint Alan Trench’s evidence that, although the Electoral Commission is not referred to in the order, it is referred to in the agreement.

As Nicola Sturgeon said, any Government that went against the advice of the Electoral Commission would need to have a really good reason for doing so. The Deputy First Minister said that she did not expect to go against its advice.

Michael Moore also spoke about the commission’s independence and credibility. It is important that we have the confidence of that.

Photo of Gil Paterson Gil Paterson Scottish National Party

Is that the same Electoral Commission that the unionist parties ignored seven times, or is it a different one?

Photo of James Kelly James Kelly Labour

I point out to Mr Paterson that I am summing up on behalf of the committee, who all want there to be confidence in the Electoral Commission and its role to be respected.

Photo of James Kelly James Kelly Labour

I am sorry, but I will not take an intervention because I am drawing to a close.

The order is very important. It sets us up for the process going forward. It is clear that this will be a historic time in Scottish politics. The debate is very important, and there is an onus on all parties on all sides of the debate to produce a debate of great quality. More people will vote in the referendum than have taken part in elections in Scotland for decades, so let us hope that we get a clear, constructive debate that will inspire the people and give us a clear choice when the outcome is decided.

The Presiding Officer:

Thank you, Mr Kelly. Your timing was perfect. Let us see whether I can do as well as Bruce Crawford: that concludes the debate on the Referendum (Scotland) Bill Committee’s report on the Scotland Act 1998 (Modification of Schedule 5) Order 2013 [draft].