Standing Committee A
Tuesday 3 December 2002
(Afternoon)
[Mr. Joe Benton in the Chair]
Clause 5
Referendums: frequency
Amendment proposed [this day]: No. 3, in
4.30 pm
Question again proposed, That the amendment be made.
The Chairman: I remind the Committee that with this we are taking the following:
Amendment No. 4, in
Clause 10, page 5, line 3, leave out 'No Court shall' and insert 'A court shall only'.
Amendment No. 5, in
Clause 10, page 5, line 6, at end add 'if such a claim is brought within 10 days of the date of the referendum as specified in the order under section 2(1).'.
Mr. Gary Streeter (South-West Devon): Thank you, Mr. Benton. I formally welcome you to the Chair.
Before we adjourned, I made a few brief interventions about clause 5. I was asking about the accountability of the chief counting officer and, over lunch, I took the opportunity to remind myself of the provisions of the Political Parties, Elections and Referendums Act 2000.
What happens if a counting officer makes a mistake? We know that electoral mistakes can happen even in sophisticated democracies such as that of the only remaining superpower on the planet. What is the chain of accountability should such a thing take place? The Bill seeks to prevent court action from following, but who appoints the chairman of the Electoral Commission, if he is the counting officer, and who can remove him or her should a series of mistakes be made or other irregularities occur? I would like the Minister to deal with questions relating to the accountability of the counting officer.
The Parliamentary Under-Secretary of State, Office of the Deputy Prime Minister (Mr. Christopher Leslie): Thank you, Mr. Benton. I also welcome you to the Chair of the Committee. Although we hope to dispatch business effectively, we will look to your solid and wise guidance on procedural matters at all times.
We are debating amendments Nos. 3, 4 and 5. I will try to answer the questions raised so far. Given my lack of specific legal training, I will make my answers as simple as possible, not least for my own understanding.
As clause 5 states, certification by the chief counting officer, which is made under section 128 of the Political
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Parties, Elections and Referendums Act, will identify the result of the referendum. The chief counting officer will
(a) the total number of ballot papers counted, and
(b) the total number of votes cast''.
If they were taken in isolation, amendments Nos. 4 and 5 would each negate the meaning and intent of clause 10. I presume, however, that the hon. Member for Runnymede and Weybridge (Mr. Hammond) intends amendments Nos. 4 and 5 to be consequential on each other. He presumably means that courts should entertain proceedings only if
''a claim is brought within 10 days of the date of the referendum''.
The Government believe that the argument for a 10-day window of opportunity is flawed. It would allow frivolous challenges to pour in, be lodged and clog up the process, which could mean that the referendum result could not be finalised. That would be an undesirable frustration of the will of the people who expressed their wishes in the referendum.
The purpose of our approach is clearly to ensure that legal challenges to the referendum result are prevented. To place the debate in the context of clause 10, we are ensuring that
''No court shall entertain any proceedings for questioning''
the certification by the chief counting officer.
Mr. Philip Hammond (Runnymede and Weybridge): I am well aware of what clause 10 does. The Minister's argument is extraordinary: because somebody may make a frivolous claim, everyone should be prevented from accessing the courts. Such an argument could equally be applied in relation to the libel laws but we do not so apply it. The courts have well-established and effective procedures for dealing with vexatious and frivolous claims. Frankly, the Minister's argument does not stand up. It does not apply specifically to electoral appeals. It would apply across the board if it had any validity at all.
Mr. Leslie: It is precisely because we want to ensure that conclusions can be drawn swiftly and finally that there are provisions not only in this Bill, but in a weight of previous referendum legislation. Incidentally, such provisions were not always opposed by Conservative Members. The hon. Gentleman says that two wrongs do not necessarily make a right, but there are five specific examples of how legislation has set precedents: section 4 of the Referendum Act 1975, schedule 17(10) of the Scotland Act 1978, schedule 12(11) of the Wales Act 1978, section 4 of the Referendums (Scotland and Wales) Act 1997 and section 6 of the Greater London Authority (Referendum) Act 1998.
Our purpose is to ensure a swift and final decision and a firm conclusion, so that the views of the public can immediately inform the decisions that are subsequently made by the Government.
Mr. Hammond: I find this quite astonishing. Is the Minister saying that swiftness of the conclusion is more important than access to justice? If he is, he may find that the Chinese system has something to commend itself.
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Mr. Leslie: I am not saying that. There are obviously issues surrounding legal challenge, to which I will turn when I comment on points that have already been made by hon. Members.
The hon. Gentleman raised the issue of compatibility with the European convention on human rights—I know that he was concerned about that. Having considered the matter carefully, we have certified that the Bill is compatible with all articles of the convention. We have considered the matter particularly in relation to article 6, which, among other things, provides that a person's civil rights and obligations should be determined by independent or impartial tribunals such as the courts. We do not consider that article 6 is engaged for two reasons. First, the referendum is advisory, not binding, so no formal determination would be made by such a referendum, which means that that is not directly decisive on a person's civil rights or obligations. Secondly, we do not believe that the matters fall under the accepted definition of affected civil rights.
The hon. Member for Kingston and Surbiton (Mr. Davey) asserted that our approach is akin to the wholesale abolition of judicial review, that being similar to the point at issue. The legislation is framed specifically in respect of the chief counting officer and other counting officers certifying the numbers of votes that are cast and the result. It is defined precisely and goes no further than that. That hardly affects all the statute law of the United Kingdom. It is nonsense to suggest that the wider rights relating to judicial review are in any way being affected or curtailed.
Mr. Edward Davey (Kingston and Surbiton): Attacking the principle of the judicial review of electoral outcomes is the thin end of the wedge. While I would not agree with all thin-end-of-the-wedge arguments, we should consider this one carefully because the courts are there to protect the rights of individuals. I ask the Minister to reflect carefully on the point that the hon. Member for Runnymede and Weybridge and I are seeking to make. During the recent elections in America, the Florida result went to the courts and it took some time to reconcile the matter through the judicial process. We all remember the hanging chads. If the outcome of an American presidential election can wait for a judicial review, I do not understand why the outcome of an advisory referendum cannot.
Mr. Leslie: I am not sure whether the consequences of the precedent that the hon. Gentleman quoted would necessarily follow through, not least because the referendum that we are considering is different, being advisory, not binding. Nevertheless, it is fair to ask a question about the scope for possible legal proceedings. The courts will make their own interpretations of the provisions that we set out in statute, should any challenge be lodged. The courts guard their rights and jurisdictions jealously. There is a substantial body of case law concerning similar provisions, to which I have referred. If a serious situation arose, involving, for example, fraud, and a challenge were made, I am advised that the court could argue that a fully valid certificate had never truly existed and that, therefore, the court had the right to
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intervene. The issue is the definition of a complete and full certificate. The court could not, and would not, substitute its own judgment for that of the chief counting officer; the court would not issue a new certificate to replace the original. The proposed additional wording in amendment No. 3 is unnecessary. The only options open to the court are to quash the certificate or the order and have a recount.
The ways of challenging the proceedings set out in clause 5 are clear for the courts to interpret. The precedent has been set. That is the way that other legislation has proceeded in the examples that I have cited.
Mr. Hammond: The Minister has argued that the Government's interpretation is that article 6 does not apply and that, in the absence of an article 6 imperative, it is efficient and convenient to exclude the courts. If article 6 did not apply in relation to elections to this place, for example, would the Minister argue that it was efficient and convenient to exclude the courts from reviewing any result—for example, the result of the Newark parliamentary election in 1997?
Mr. Leslie: Without being drawn into too many specific cases, all I can do is to pass on the Government's legal advice. We do not believe that these matters fall under the accepted definition of civil rights. In the case of Cheminade v. France, the European Court of Human Rights determined that electoral disputes were about political rights and not civil rights. That obviously helped to inform our opinion that this provision was compatible with the European convention on human rights.
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