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Baroness Blatch moved Amendment No. 69:

The noble Baroness said: I can be very brief on this amendment. We have emphasised a number of times accountability and transparency when speaking to previous amendments. This is to do with cost. The Electoral Commission is to be consulted before the Secretary of State can provide funds with which the commission can then cover the expenditure incurred when employing counting officers and setting up the voting process.

I do not argue with that and I do not argue with the making of the order for expenses to cover the services required. My amendment simply asks that the response of the Electoral Commission should be published. That would make more comprehensive the information that would be made available before the order was approved. It is only right that when taxpayers' money is being spent, the Minister should publish the results of the consultation exercise. That would ensure that the public could be satisfied with the legitimacy of the amounts committed to provide the expenses detailed. I beg to move.

Lord Evans of Temple Guiting: Subsection (3) of Clause 9 requires a Minister of the Crown to consult the Electoral Commission before making an order to make provision for payment by the Electoral Commission of either charges in respect of services rendered or expenses incurred by a counting officer in connection with a referendum held in pursuance of an order to cause a referendum, or the increase in the superannuation contributions required to be paid by a local authority as a consequence of a fee paid as part of a counting officer's charges. Amendment No. 69 would require the Secretary of State to publish the commission's response to this consultation.

As I said with regard to Amendment No. 59, the Electoral Commission's responses are its own responses. It is independent of the Government, so it decides whether to disclose its responses and whether there should be publication. As it seems to intend to publish any consultation that it might have with the Government, I ask the noble Baroness to withdraw the amendment.

Baroness Blatch: I believed, perhaps naively, that we were making law in Parliament. It might well be a matter for the Electoral Commission to decide what it shall make public, but we are making law. This is a new Bill, and we can if we wish require that the response should be made public. It is for Parliament to decide whether it should be made public; we can put an obligation in law on the Electoral Commission to publish its findings. At the end of the day, it is your money and my money that is being spent. The public have the right to know what the consultation was and what advice was given.

I am deeply unhappy about the Minister's response, but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Clause 9 agreed to.

Clause 10 [Exclusion of legal proceedings]:

Baroness Blatch moved Amendment No. 70:

    Page 5, line 11, leave out "No court shall" and insert "A court shall only"

The noble Baroness said: In moving this amendment, I shall also speak to Amendments Nos. 71 and 72.

This is an important clause, and I hope that the Minister can give us some cheerier news than we have had to date. The question is whether the courts can be used to challenge the result of a referendum. It seems extraordinary to take a specific power to deny the right to challenge aspects of a referendum.

When querying the inclusion of the clause in the Bill, I turned to the Explanatory Notes for clarification, but that was hardly what I found. The only argument used is not intellectually valid. The notes suggest that the measure should be approved because the Government have done this before, but precedent is not an answer. We are viewing this Bill on its merits as a new Bill before the House.

The purpose of the clause is to ban legal challenges to a referendum. The notes state:

    "The inclusion of this clause follows the precedent set by, for example, section 6 of the Greater London Authority (Referendum) Act 1998, section 4 of the Referendums (Scotland and Wales) Act 1997 and section 4 of the Referendum Act 1975".

That last Act was passed 28 years ago, when there was a very different set of circumstances. At that time, a threshold operated, which gave some safeguard as to the volume of support for constitutional change.

Just because something has been done one way before does not mean that it is impossible to change the procedure. That is especially the case with regard to something with such dramatic constitutional implications. Surely in some circumstances it might be necessary to question the validity of the referendum result. I offer up just such a possibility in Amendment No. 71: that there are allegations of electoral fraud.

Moreover, I hope that noble Lords took note of the fact that I did not simply propose that the courts have free rein to challenge the results of a referendum. That is effectively what the Liberal Democrats have done with their opposition to the Question that Clause 10 stand part of the Bill. Although we have put our names to that opposition, I have to say that I prefer the limitations offered in Amendments Nos. 70, 71 and 72 as a more sensible and responsible response: only if allegations of fraud are made through the proper legal channels and within 10 days of the announcement of the result is such a challenge to a referendum result legitimate. That makes it clear that the allegations must be of only the most severe nature—that of electoral fraud. Furthermore, the legal proceedings cannot be initiated unless it is within the first 10 days after the result. That stops any frivolous questioning of the result and also ensures that the result is not questioned when further processes are under way to implement the results of the referendum—for example, the establishment of the assemblies themselves.

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Earlier today, in discussion with one of my colleagues, I was reminded of an incident in Croydon. It was discovered after the event that some of the election papers had not been properly stamped. The returning officer allowed them through and the votes were counted and they were materially crucial to the result of that vote. When they were challenged, the election was rerun. So there are examples.

I have a technical question for the noble Lord. I have before me a copy of the relevant part of the Political Parties, Elections and Referendums Act 2000. Reading Section 129, I just wonder whether this clause runs counter to what was set out in that Act. I hope that the Minister will concede that some procedure must be available by which legitimate challenges to the result of a referendum may be made through the appropriate legal channels. If not, I would welcome some good reasons why not. I beg to move.

Baroness Hamwee: We have indicated our opposition to the Question that Clause 10 stand part of the Bill. As the noble Baroness, Lady Blatch, concedes, she and the noble Baroness, Lady Hanham, also oppose the Question. I have done so in an attempt to gain further understanding of the clause. I hope that we can debate whether the clause should stand part now rather than in a later debate.

In Committee in another place, the Minister said:

    "If a serious situation arose, involving, for example, fraud, and a challenge were made, I am advised that the court could"—

he said "could"—

    "argue that a fully valid certificate had never truly existed and that, therefore, the court had the right to intervene".

He went on to say:

    "The ways of challenging the proceedings set out in clause 5 are clear for the courts to interpret".—[Official Report, Commons Standing Committee A, 3/12/02; cols. 47-48]

Even putting aside the rather convoluted approach in that last sentence, I have to say that, reading and rereading the statement—and I freely admit to being no expert in this matter—the position is by no means clear. However, if I understand the Minister in another place aright, there is no need for this clause at all. So I have gone round in a complete circle. I hope that the Minister can shed some light on it.

Lord Rooker: I am not resting my case on the argument that no explanation is necessary because it has been done before. I also accept that the argument in the Explanatory Notes is based exclusively on the fact that it has been done before. Although that is part of the argument, it is not the whole argument.

I shall probably give a totally inadequate response to this point, which is not straightforward. On the face of it, the clause seems quite onerous. The advice I have corresponds exactly with what Nick Raynsford said in another place; namely, that the clause does not rule out any and every challenge to a referendum result being looked at by the courts. I realise that I am entering a legal minefield here, but notwithstanding the fact that the clause has appeared word for word in five previous

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pieces of legislation, it has never been challenged in the courts. Therefore, we are in uncharted waters as regards the kind of case the courts would wish to consider. The clause is certainly designed to cut out less serious challenges, for example, a returning officer arguing about the number of ballot papers that were filled in incorrectly even though they did not alter the overall result. Some people might argue that a counting error had still been made. However, we want to avoid such challenges being brought as once a decision is taken on a referendum certain actions need to be taken as quickly as possible.

Even though the clause as written appears to rule out completely any court considering a result, I am advised by lawyers and my learned friends that an alleged serious error could be challenged in the courts. However, I cannot give an example because so far such a case has not been challenged in the courts. The courts are jealous of guarding their right to consider cases if people complain of an alleged serious error. I cannot conceive of any such circumstances but I am advised that such challenges are not ruled out.

The clause is included in the Bill—for the same reason it is included in other legislation—to ensure that the Government can respond without delay to referendum results. Court challenges take time. Undue delay could result in difficulties as regards introducing the main Bill to set up the assemblies. As has been said, the previous five referendums took place a long time ago, one in 1975 and two in 1978. However, the two more recent ones in 1997 and 1998 occurred within the lifetime of this Government. It would be for the courts to interpret how any challenge would be dealt with. For example, they would not be prevented from considering a challenge to the certificate of the chief counting officer. As I say, the courts are jealous of their jurisdiction. There is a substantial body of case law in regard to the wording used in the clause but it has not been challenged in the courts in the sense of an ouster clause.

We recognise that the clause may not prevent all challenges, particularly those of a serious nature, and, indeed, we would not expect it to do so. It would obviously be right for a particularly serious allegation based on sound grounds to be challenged. I was about to refer to a scandal in that regard, but that is casting judgment on an allegation and I do not wish to do that. However, it would be wrong for a serious allegation not to be challenged in the courts. As we do not have a ruling, we do not have a precedent to follow.

Amendment No. 71 seeks to limit the courts' jurisdiction to those circumstances where the allegations of electoral fraud are made through the appropriate legal channels. We believe that the amendment would be ineffective. We do not know what the legal channels are. I am assured that that is not a legal term and that it could not be inserted into legislation. As I say, we believe that the amendment would be ineffective or at least limited to those circumstances where there is a combination of polls. One could ask what electoral fraud could take place in a referendum. A referendum constitutes an election that takes place at the ballot box in which the wider

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population takes part. It is not an election involving individual candidates. However, there may still be allegations that fraud has taken place. I cannot conceive of such circumstances and I cannot give examples off the top of my head.

Amendment No. 72 is a little more "dodgy". It seeks to impose a time limit on the bringing of legal proceedings. That time limit is 10 days from the announcement of the referendum result. The amendment could prevent challenges regardless of whether they are frivolous or serious. Obviously the courts tend to consider time bars to be absolute bars on bringing proceedings. Where there is a time limit, it is less likely that the court would open it up because Parliament has set that time limit. The period for otherwise bringing proceedings would in general terms be three months from the date of the chief counting officer certifying the result. That would be a much wider limit if there were to be a "really serious challenge".

I hope that Members of the Committee accept that the clause does not prevent serious challenges. There would be less time to bring such challenges if Amendment No. 72 were agreed to. Amendment No. 70 is consequential.

That may be a completely inadequate response. I have got some really serious legal briefs with me; I do not even know what some of the words mean, but my noble and learned friend the Attorney-General certainly would. If there is such dissatisfaction with the provision at a later stage, I would take advice from him and he might wish to correct my inadequate response himself. I have put on record that we do not see the clause as ruling out all and every challenge. The wording is identical to what has been used in the past. We do not have a legal precedent to go on. We are not trying to stop anyone who has a serious case, and frankly one can give frivolous examples more easily than serious ones. To that extent, my argument is not full.

Based on what has happened in the past, and with the knowledge that the provision does not completely rule out all challenges of a serious nature, because the courts would certainly look at them, I hope that the noble Baroness will not press her amendment.

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