Regional Assemblies (Preparations) Bill

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Mr. Streeter: Can the Minister give an example of a court entertaining proceedings in the face of a statute that states that

''No court shall entertain any proceedings for . . . ''?

Is it possible under the clause for someone to go to court on judicial review of the outcome of a referendum? Yes or no?

Mr. Leslie: I can envisage circumstances, albeit rare and exceptional, when someone may make an application to the court to challenge certification or purported certification made by a chief counting officer.

Jim Knight: I have been listening with at least one ear and with care to the proceedings. The clause states that the number of ballot papers or votes cast should not be questioned, but would it not be possible for someone to mount a legal challenge against the conduct of an election without questioning the number of votes cast? That would provide a legal avenue for people to question the election without questioning the number of votes cast.

Mr. Leslie: That would certainly be one option for anyone making an application to the court to mount a challenge on those issues. It is important to consider the battery of case law not simply in respect of clauses for other referendums, but also ouster clauses, which oust jurisdiction and the way in which it has been interpreted by the courts.

5.15 pm

I understand that there are other cases in which ouster clauses have been challenged such as, for example, the Attorney-General v. Ryan 1981 or Anisminic Ltd. v. the Foreign Compensation Commission 1969.

Mr. Streeter: What was decided in those cases?

Mr. Leslie: It was decided that the court had a role to examine serious issues, even though the literal description of the provisions in the Acts to which they related excluded judicial intervention on the face of it. There are examples of how ouster clauses have been interpreted, which is the point that I sought to make. Parliament must legislate in full knowledge of other case law. Indeed, when the former Solicitor-General, Lord Falconer, talked about that issue in a debate on the Greater London Authority (Referendum) Act 1998, he said:

''A balance is being struck between the clause stopping challenges which are not serious, but with the court having power to investigate those challenges which might be serious.''—[Official Report, House of Lords, 29 January 1998; Vol. 584, c. 372.]

It is about making sure that we strike the right balance.

Mr. Hammond: Is the Minister saying that the wording of the exclusion clause in the Greater London Authority Act 1998 is precisely the same as that of clause 10?

Mr. Leslie: That is indeed my understanding of the way in which clause 10 is framed, which is why we have carried over that particular provision. It is about making sure that we strike the right balance between allowing serious challenges but excluding frivolous challenges while also ensuring that we have finality and certainty in the interpretation of the public's will in an advisory referendum.

Mr. Hammond: What the Minister has said is deeply unsatisfying because his argument is not clear. I am not sure whether the clause is intended to prevent or to facilitate access to the courts. I am not sure whether he is telling us that it does not matter that the Bill says, ''There shall be no access to the courts because it is all subordinate to case law, which says that there shall be access to the courts.'' Last week, I raised the prospect that the Human Rights Act 1998 might provide that there is access to the courts, notwithstanding the fact that the statute says that there shall not be access to the courts. I shall have to advise my hon. Friends to vote against the clause.

Whatever ducking and diving the Minister has been able to do around precedents and technical definitions, he is suggesting that, notwithstanding the fact that the clause states:

''No court shall entertain any proceedings'',

some courts may entertain some proceedings in some circumstances. Imagine the Foreign Secretary's indignation if the Government of Zimbabwe were to introduce a provision like that into their electoral law. I will not mention Iraq because it is probably a poor example of the involvement of the judiciary in the electoral process. However, if the Government of some country with a less good tradition and history of democratic elections than this country were to introduce such a provision, we would surely reject it out of hand and say that it was utterly unacceptable because recourse to the courts is the absolute of cornerstone of a properly organised democracy and an absolute assurance of democratic rights and freedoms.

Jim Knight: Does the hon. Gentleman accept that we are talking about a referendum, which is advisory, and not an election? He is framing the clause in terms of a great dictator saying that no one can challenge an election result in the courts. The clause does not say that no one can challenge a referendum in the courts; it simply says that no one can challenge the number of votes cast. A referendum can yield a decisive result in a referendum that is advisory to the Secretary of State. If there were serious questions about the conduct of the referendum, it would still be possible to challenge it.

Mr. Hammond: The hon. Gentleman is obviously right. Apart from a challenge to the counting of the votes, nothing in the clause prevents a challenge to other aspects of the election. The hon. Member for Ludlow, who is not in his place, suggested this morning that an all-postal ballot might be more susceptible to fraud. I shall not debate that issue now but, as I understand the provision, it excludes any court from entertaining a challenge to the chief counting officer's decision about the number of ballots cast, yet there may be concerns about the number of ballots cast.

There may be all sorts of practical and administratively convenient reasons for excluding the courts, but we are at the top of a slippery slope. As a matter of general principle, we should not exclude the courts from reviewing any aspect of government, particularly the conduct of elections and referendums, which are at the very heart of our democracy. In a modern, civilised democracy of the 21st century, it is not much to ask that the ultimate arbiter of any question should be the courts—not an administrative officer appointed, ultimately, by a quango. Therefore, I urge my hon. Friends to vote against the clause.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 8, Noes 5.

Division No. 4]

AYES
Gilroy, Linda Jones, Mr. Kevan Knight, Jim Leslie, Mr. Christopher
Quinn, Lawrie Raynsford, Mr. Nick White, Brian Woolas, Mr. Phil

NOES
Davey, Mr. Edward Flook, Mr. Adrian Hammond, Mr. Philip
Streeter, Mr. Gary Swayne, Mr. Desmond

Question accordingly agreed to.

Clause 10 ordered to stand part of the Bill.

Clause 11

Supplementary

Mr. Hammond: I beg to move amendment No. 10, in

clause 11, page 5, line 13, leave out subsection (2).

The Chairman: With this it will be convenient to take amendment No. 18, in

clause 12, page 6, line 31, leave out subsection (7).

Mr. Hammond: The heading of clause 11, ''Supplementary'', is not very inspiring, but we have learned that it is often necessary to look at the little capsule clauses at the end of a part for provisions that might be contentious. Amendment No. 10 seeks to leave out subsection (2), which astonishingly states:

''It is immaterial whether the power is exercised before or after the passing of this Act.''

That refers to the power of a Minister of the Crown, as referred to in subsection (1), to

''make provision under section 129 of the 2000 Act . . . in connection with a referendum held in pursuance of an order under section 1''.

That tells us, if I have understood it correctly, that a Minister can make provision under section 129 of the 2000 Act in connection with a referendum held pursuant to section 1 of the Bill before it has been passed by Parliament, and certainly before it has received the Royal Assent. That seems wholly improper and inappropriate.

Why are the Government always in such a hurry, for goodness' sake? Why can they not just get the legislation through, and then deal with the processes in a proper and measured way? Why on earth do they want to use powers under the legislation before it has even been passed? That might incur public expenditure on matters that never see the light of day. Who knows? We are realists, and we recognise the electoral arithmetic in this House, but I hope that the Minister is also a realist and recognises that some of the issues in the Bill will be hotly debated in the other place, where the outcome is not always such a foregone conclusion on the basis of arithmetic.

It is quite extraordinary to say that it is immaterial whether a power is exercised before or after the passing of a Bill. I wonder whether such retrospective legitimisation of ministerial action is to be a feature of all future Government legislation. Subsection (1) appears to be a retrospective justification of something carried out now without any proper legal basis or empowerment. That is my concern in principle. Clearly, Ministers have something in mind when they draft such a subsection. Will the Minister explain what Ministers have done, or are intending to do, before the Bill is passed that the subsection would retrospectively authorise?

Mr. Streeter: I support my hon. Friend in his arguments. On Sunday I caught sight of a television programme, which I think was called ''Chocolate''.

Mr. Swayne: On a Sunday?

Mr. Streeter: Yes, it was after ''Songs of Praise'', so it was all right. It set out the story of an autocratic Government who came to power and banned chocolate; they trampled roughshod over the rights and freedoms of the British people.

 

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Prepared 10 December 2002