Parliamentary Committees and Public Enquiries
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Agreement on Scottish independence referendum leaves questions to answer, says Peers

Serious questions remain unanswered about the Agreement reached between the UK and Scottish Governments on the holding of a referendum on Scottish independence says the House of Lords Constitution Committee in a report published today. The Agreement provides for power to hold a referendum on Scottish independence to be devolved to the Scottish Parliament. It proposes that this be done through a ministerial order under section 30 of the Scotland Act 1998; such a process would not require an Act of Parliament, and so limits the ability of MPs and peers to control the terms of the referendum.

The Committee finds that neither the UK nor the Scottish Parliaments were given the opportunity to contribute directly to the Agreement negotiations.

It questions whether a section 30 order would be robust enough to protect the decision to hold a referendum from legal challenge. Although such a challenge would be unlikely to succeed, it would delay the process and cause confusion.

The Committee also finds that there may be legal and practical problems associated with the proposal to allow 16 and 17 year-olds to vote in a referendum. The Committee fears that, if the franchise is lowered, some 16 and 17 year-olds could be denied the right to vote because of inadequate process

The Committee emphasises the importance of the role of the Electoral Commission in ensuring that the referendum question is intelligible and neutral. Although the two Governments agreed on the advisory role of the Electoral Commission, the Committee thinks its advice is authoritative and should be followed.

Commenting on the report, the Committee’s chairman, Baroness Jay of Paddington, said:

"We welcome the fact that the Agreement reached between the two Governments takes account of the Committee’s previous recommendations. However, we are concerned that there are still many potential pitfalls ahead.

Proceeding via a ministerial order makes the opportunity to the UK Parliament to contribute to the process almost negligible. And neither the UK nor the Scottish Parliaments had the opportunity to contribute directly to the private negotiations on the Agreement. We are also concerned about allowing younger people to vote, potential legal challenges to the order and the fact that the rules on financing the referendum have not been agreed.

For other referendums the Electoral Commission has a key role to play in advising on the intelligibility and neutrality of the question to be asked. Although the Agreement states that the Commission will advise on the wording of the referendum question, we are concerned that its advice might not be followed.

In order for this referendum to be timely, robust and secure, further work is necessary to ensure that these issues are resolved."

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