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Lord Mackay of Ardbrecknish moved Amendment No. 5:

Page 3, line 11, at end insert ("except in circumstances where different guidance has been received by the counting officers in one or more areas on the conduct of the count").

The noble Lord said: My Lords, I shall speak also to Amendments Nos. 6 and 7. The amendments relate to Clause 6 which provides:

The clause was contained in the Scotland and Wales legislation. My noble and learned friend and fellow clansman Lord Mackay of Drumadoon probed the Government on this point. We received what at the time was a satisfactory reply from the Lord Advocate.

Noble Lords: What has changed?

Lord Mackay of Ardbrecknish: My Lords, the change is that with the Welsh referendum some serious problems arose. They did not arise on the "No" side; they arose on the "Yes" side. The matter was drawn to our attention by no less an organisation than the Caerphilly Constituency Labour Party, which expressed some concern--I have to say in total privacy--and sent letters which, unfortunately, winged their way outside the sacred walls of the Caerphilly Constituency Labour Party to people such as me.

The letter from the secretary, Mr. Lamb, indicates a number of concerns that the constituency Labour Party had about the conduct of the count. The clause relates to the conduct of the count. There were a number of problems. It was concerned, for example, about the information it was given; about where the ballot boxes

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came from; about the list; and about the way the count was conducted. Although the letter does not say it, I understand from other papers it was concerned that it could not see the official mark.

I suggested in August, in order to be helpful to the Government, that I thought the day of official marks was over and done with. The Government told me that it was not and that they were important. So, they were important. The scrutineer should have been able to see them. The whole question of who were the scrutineers and whether there were enough of them was part and parcel of the same problem.

The Caerphilly Constituency Labour Party was in the difficult position of having that concern in the constituency of the Secretary of State for Wales. It recognised that and its letter stated:

    "Of paramount importance was the fact that the implication of what in our view contravened the Representation of the People Act 1949, 1969 and 1983, and the Referendum Act should not become a formal issue because of our MP's position as Secretary of State for Wales. Ultimately the buck stops at the Welsh Office, and we realise that politically we have to be extremely careful because of Ron's position there".
I appreciate its concern for "Ron's position", but the issues it raised were important: the number of polling agents; the boxes and verification not being announced; the counting officer would not allow polling agents to know which were "Yes" and which were "No" allocations; the design of the ballot paper made it almost impossible for polling agents to see official frank marks, to the extent that even the top paper was invariably covered by a counting officer's hand; some supervisors allowed their counting assistants to count haphazardly, with ballot papers being turned face down, upside down--particularly regarding potential spoils--no announcement of the count proper being started in part was made; polling agents were not allowed to check the final bundles; and there was inordinate delay in announcing the result. Out of 145 boxes, after the first 50 boxes or so had been counted, five out of a total of 10 teams were taken off verification, thus prolonging the count.

I do not want to prolong my remarks, but those matters are all of concern. The biggest concern was that doubts arose that evening about how to count papers which were not marked with a cross. It was easy enough when in answer to:

    "Do you agree that there should be a Welsh Assembly?"
people put "Yes" or "No"instead of a cross. That was clear. The problem arose with "I do not agree" with the answer "Yes" or "No", because there was a double negative. There was some doubt about that.

During the course of the count the officers in that counting station asked for and received advice about what to do. It was advice which was not transmitted to everyone judging at all the counts throughout Wales. That is a serious point, which is why I tabled Amendment No. 5 which provides that one should not be able to go to court unless:

    "different guidance has been received by the counting officers in one or more areas on the conduct of the count".

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Amendment No. 6 relates to observers admitted to the count not receiving full access. If the Caerphilly Labour Party had not been in the embarrassing position of having the Secretary of State for Wales as its MP--it is doubly embarrassing because that portion of the Welsh Labour Party seems to have been in favour of the "Yes" vote--I suspect that the matter might have been taken further. It could not have been taken any further because of the clause in the Scotland and Wales legislation.

I am concerned that if something like that arose with the London referendum, no one aggrieved who believed that there was a legitimate point to be made would have recourse to the courts if your Lordships pass the clause unamended. With that explanation of why I tabled the amendments--as a fall-back--I suggest leaving out the clause altogether so that people could challenge in the courts on any grounds, not just the two I exempt. I beg to move.

The Solicitor-General (Lord Falconer of Thoroton): My Lords, I hope that I shall be able to establish that the concerns of the noble Lord, Lord Mackay of Ardbrecknish, are misplaced. As he pointed out, the purpose of Clause 6 is the same as that of an identical clause in the Referendum Act 1975, the Scotland and Wales Act 1978 and the Referendums (Scotland and Wales) Act 1997. The aim of the provision is to ensure that the Government can respond without delay to referendum results.

As my noble friend Lady Hayman explained in Committee, the clause is designed to prevent any, save serious, challenges to the certification of votes or ballot papers under the Bill. Any challenge which was to be made in court would be time-consuming. So long as there was an application before the court, there would be considerable doubt about the fate of the legislation establishing the GLA. In effect, the position would be politically frozen until such a court challenge were brought to an end. The provision is designed to exclude all, save serious, challenges to the certification of votes or ballot papers under the Bill.

We recognise that the clause does not prevent all possibility of legal challenge in connection with the certification of referendum votes. The courts are rightly jealous of their jurisdiction, and look carefully at provisions which seek to oust their jurisdiction. There is a substantial body of case law, including an important decision of this House in its judicial capacity, concerning the proper interpretation of such statutory provisions.

Should any legal proceedings be brought challenging the certificates of the chief counting officer, or a counting officer, it would be for the courts to decide, having regard to the case law and the particular circumstances of the case, whether a challenge could be entertained in the light of Clause 6. 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.

I have taken some trouble to explain what the clause means, because I can see that, on the face of it, its terms are all-embracing. It may be helpful if I remind your

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Lordships that there is a presumption that Parliament legislates in the full knowledge of the existing state of the law. Clear and express provision would be needed in an enactment to over-rule the effect of the case law to which I have just referred.

It is therefore within the conventions for a well-precedented clause such as this one to be enacted in the knowledge that it is not the end of the matter. Like all other similar provisions, it is subject to the construction of the courts and the intervention of the courts in those cases that the courts think are serious enough.

The noble Lord, Lord Mackay of Ardbrecknish, appeared to suggest that he was satisfied with the answers that my noble and learned friend the Lord Advocate had given to the noble and learned Lord, Lord Mackay of Drumadoon, because he introduced the amendments on the basis that things have changed because of the position in Wales. The noble Lord, Lord Mackay of Ardbrecknish, identified a number of matters which he said gave cause for concern. The most important one that he identified being advice given on how to deal with something other than a cross in relation to those who wanted to vote "No".

The position, as the Secretary of State said, is that there were 22 counting areas in Wales. In relation to the problem of a cross rather than a "No" or a "No" rather than a cross--I cannot remember which--the chief counting officer gave advice which was disseminated to 20 out of 22 areas on the night. In respect of those two areas where it was not disseminated there may have been a few hundred "no" votes which were not recorded in accordance with the advice given by the chief counting officer. It would not therefore have affected the result. Moreover, it would have been most unsettling for there to be a court challenge that would have not made any difference.

In my respectful submission that is a very good example of why one needs a clause like this. If there are more serious complaints about the conduct of the Welsh referendum, the Scottish referendum or any other referendum, including this one, to which this clause applies then, as I have made clear, this clause would not prevent the courts considering whether or not such a challenge should be considered by those courts. I believe it is a sensible balance, I believe it permits the matter to be dealt with quickly and efficiently but gives the court a residual jurisdiction in relation to serious cases.

Perhaps I may turn to the particular amendments proposed and deal with them very briefly. First, with Amendment No. 5 the noble Lord, Lord Mackay of Ardbrecknish, seeks to insert the words,

    "except in circumstances where different guidance has been received by the counting officers in one or more areas on the conduct of the count".
That, in my respectful submission, is an ill-conceived suggestion for an amendment. The effect of it will be to make the courts consider that the only circumstances in which they can intervene is where different guidance has been received by the counting

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officers in one or more areas. On the basis of the speech the noble Lord made that is the last thing that he would want. Moreover there may well be good reasons in relation to the London count as to why different guidance should be given in one area as opposed to another.

I take just one example. The City of London, which is one of the areas for the poll in Greater London, will not be having local elections. It would therefore be sensible that different instructions or guidance be given there as to how the poll should be conducted in other areas where there will be local elections.

Having said that, I would say that it is my hope that the chief counting officer in the London referendum will issue guidance to counting officers well in advance of the count and that he will consult with experienced returning officers before doing so. Moreover, if we are talking about guidance aimed at ensuring consistency in the way in which doubtful ballot papers are to be judged, clearly I would hope that the guidance given will be the same for all boroughs.

More than that I cannot say without entering into matters which will, under this Bill, be the responsibility of the chief counting officer. But noble Lords can be reassured that we have the problems well in mind. It is on that basis that I urge the noble Lord to withdraw this first amendment.

As to the second amendment, the particular circumstance which he suggests should be an exception to Clause 6 is where observers admitted to the count have not received full access to scrutinise all aspects of the count as they are entitled to do under the Representation of the People Act. The aim expressed in this is an aim with which I am fully in agreement. We have provided in the draft secondary legislation currently available in the Library of the House for the appointment of observers to scrutinise both the poll and the count. We have already included in it a provision which is absent from previous referendum legislation enabling counting observers to be present at the dispatch and receipt of postal ballot papers. They will, of course, also be present at the count itself and, in general, all those things which are normally required to be done in the presence of counting agents at an election are, at the referendum, to be done in the presence of these specially appointed counting observers.

Again, however, inserting the exception, will have the effect of limiting the effects of the circumstances in which the court would intervene to those referred to in the exception rather than to those cases which the court itself determines are sufficiently serious to justify intervention.

There are three short points in relation to the appointment of observers. First, if organisations campaigning for a particular referendum outcome want to have counting observers they must invite the counting officer to appoint their representatives. I understand that in some cases organisations in Wales failed to respond to counting officers' requests for nominations with the result that they were not

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represented. Therefore, it is for each campaign side to ensure that they have made the request to the counting officer to have representatives present.

Secondly, in view of the terms of the proposed amendment, it seems to me worth reminding your Lordships that there is nothing even in ordinary election law which says that every counting agent has the right to observe everything. Electoral legislation says that counting agents are entitled to attend the count which should be arranged so that they have all reasonable facilities to observe the proceedings and that certain things must be done in their presence if they have attended for that purpose.

The present clause is only apparently an all-embracing exclusion of legal proceedings. For the reasons I have indicated Amendments 5 and 6, far from having the effect of extending the circumstances in which the court can intervene, will, I believe, limit them.

Finally, if what the noble Lord, Lord Mackay of Ardbrecknish, described as his fall-back position were adopted--namely, to leave out Clause 6 altogether--there would not be the balance between preventing non-serious applications, but on the other hand leaving the court with a residual discretion. I therefore ask whether, upon reflection, the noble Lord will consider withdrawing all three amendments.

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