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Baroness Blatch: Big words or no big words, used or not, the advice that the Minister has received is not as learned as I would expect. The Bill states:

It does not say anything about frivolous or not-frivolous cases, or exclude very serious claims. So far as I am concerned, the words are plain and mean that there cannot be a challenge. I do not care how learned the people who advise the Minister are. Those words do not mean what he believes that he has been advised they mean. The Bill does not allow for any case.

The Minister made no comment on Sections 128 and 129 of the Political Parties, Elections and Referendums Act and whether the clause runs counter to them. He said that he was worried about delays and

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that the reason for the method proposed in the Bill is so that things can be got on with without delay. However, if there are grounds for a very serious challenge, I am afraid that there will have to be a delay until the challenge is addressed—but it cannot be addressed.

Lord Rooker: Well, I said it could be. The noble Baroness must either accept what I have said or not. The fact is that there is good case law and evidence around, but no case in court to test it. The advice is, notwithstanding the words in the Bill, that the courts could—they jealously guard their rights anyway—look at a most serious challenge and allegation. I know that the words do not say that and look as though they rule it out, but the advice is that the courts would still be able to look at the most serious challenge to the certificate granted by the chief officer. That is exactly what my noble and learned friend the Attorney-General would say if he were here.

Baroness Blatch: The Bill does not state that a court will entertain serious proceedings or proceedings that are not vexatious, but that,

    "No court shall entertain any proceedings".

So long as those words remain in the Bill, there cannot be a challenge. If the Minister says that there can be, he must point me to the part of the Bill that states that courts can entertain serious challenges. I simply do not accept the advice that has been given.

The noble Lord went on to say that there has never been such a case. I believe that I gave him an example of a case in which some of the ballot papers had not been stamped. Although they were allowed through on the night, the gap between the winner and the loser was such that the papers were crucial. When a challenge was made, the election had to be re-run. Therefore, there is at least one example of an election where the challenge was allowed and where it was borne out and upheld.

The noble Lord added that only serious challenges should be acceptable. As I said, because the court cannot accept any challenge or any proceedings, I do not know what the noble Lord means by that. But my amendments address the whole issue of vexatious challenges. Amendment No. 71 seeks to amend the Bill to state that the court shall entertain any proceedings only,

    "if allegations of electoral fraud are made through the appropriate legal channels".

In other words, there must be evidence of fraud in order for the court to do so.

With regard to the time limit referred to in Amendment No. 72, first, the noble Lord says that that could prevent more charges, irrespective of frivolous or serious claims. The noble Lord himself has ruled out frivolous claims, and I have ruled out frivolous and vexatious claims through my amendment. Therefore, that is not an issue here. However, if the noble Lord is concerned that 10 days is too short a period, I shall happily come back at the next stage of the Bill with the three-month time limit suggested by him.

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I believe we agree that if there is to be a challenge, the period during which it can be made should not be open-ended and last for months and months. It should be possible to make the challenge within a reasonable time following the election. Therefore, so long as Clause 10 contains the words:

    "No court shall entertain any proceedings",

I shall not be convinced that serious proceedings can be entertained by the court.

Lord Waddington: Before the Minister replies, can he help me on one point? I have just been observing the noble and learned Lord the Leader of the House and I wonder whether he is cross, anxious or bored. Can he help us?

Lord Rooker: I think that he is probably declining to take me on as a pupil. First, I want to reply to the noble Baroness with one or two answers to her specific questions. She asked whether the clause was contrary to Sections 128 and 129 of the Political Parties, Elections and Referendums Act. The answer is no. She asked for case law concerning ousters. There was such a case in 1969. I am not sure of the correct pronunciation, but it is Anisminic Ltd v. The Foreign Compensation Commission 1969. It will be found in 2AC[147]. There was also a case in 1981 involving Racal Communications, which, I believe, will be found AC[374]. Therefore, some case law does exist but no ouster clause of this kind has ever been considered by the courts, and that is a problem.

On the other hand, the advice is that the clause would not be construed by the courts to have its literal meaning. As a non-lawyer, I know that this is a difficult issue. I do not know whether the noble Baroness is a lawyer, but I am assured by the best legal brains in Whitehall that the clause would not be construed by the courts to have its literal meaning. There are many reasons for that. I could give a long speech and provide details but that would not change the noble Baroness's view. I believe that she will probably have to reflect on the matter now that I have pointed her in the direction of some case law to read.

I know that the wording in the Bill does not look right but it is exactly the same as in other Acts of Parliament. None has gone to court and therefore we do not have a view about the courts. But it is believed that, notwithstanding the wording, the clause does not rule out the possibility of the courts considering the most serious challenges. They are free to do that. That is the situation. The noble Baroness may not accept that and she may want to test the opinion of the House. I invite her to do so because I cannot give a further or better explanation.

9.30 p.m.

Lord Stoddart of Swindon: We admire the Minister so much. That explanation was so expert that one is

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almost prepared to believe it. As an ordinary person all I can do is to read what it says in the Bill:

    "No court shall entertain any proceedings for questioning the number of ballot papers or votes cast in a referendum",

and so on. You cannot get away from that. The Minister sounds like Winston Smith in Nineteen Eighty-Four who said that words mean what he said they mean. That simply is not good enough for legislation. I wish a Law Lord were present as it would be useful to have an opinion. The Minister has not convinced me that the clause is necessary. It may well be dangerous.

Baroness Blatch: I have heard it all now. I wonder what we are doing in this Chamber. I have always believed that the words on the page literally mean what they say. If we are told, "Believe me, I am the Minister, and I have had advice from very learned people that what you see on the page is not what the words mean, but"—in the words of the noble Lord, Lord Stoddart—"the words mean what we say they mean", that is not an answer and I do not accept it.

Lord Elton: I have been longing to join in this debate. If the words in the Bill do not mean what they say, surely words should be found that mean what the Government intend. Could we have words that say what the Government intend so that people like the noble Lord and myself, who are not lawyers, can understand what they mean so that we do not have to pay vast amounts of money to lawyers to tell us what they mean?

Baroness Blatch: I say "hear, hear" to that. The serious point about the amendment is that when we in the Westminster village have finished with the Bill, Joe Public will have to interpret it. The public will have to make sense of what it means. If at the end of the day we say, "Do not worry about reading the words on the page, the Minister says that they mean something else and when it says that no court shall entertain any proceedings, do not believe that because they will entertain some proceedings as long as the proceedings are serious because that is what the lawyers advise". If that is the lawyers' advice, the Bill should state that. We shall certainly return to this matter.

Baroness Hamwee: I seek to persuade the noble Baroness not to divide the Committee on this point. It is so serious that one will want to read the debate.

Baroness Blatch: This discussion will make some of the best bedtime reading that we have had in a long time. I shall not deny anyone the opportunity to read the debate and reflect on it for the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 71 and 72 not moved.]

Clause 10 agreed to.

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Clause 11 [Supplementary]:

Baroness Hanham moved Amendment No. 73:

    Page 5, line 20, at end insert ", except that no different provisions may be made under subsection (2) in relation to different parts of the United Kingdom in the event of two referendums being held on the same day"

The noble Baroness said: In moving Amendment No. 73 I shall speak also to Amendment No. 74 standing in the names of the noble Baroness, Lady Hamwee, the noble Lord, Lord Greaves, myself and my noble friend Lady Blatch. The amendments refer to two subsections in Clause 11 which introduce the supplementary powers in relation to Part 1 of the Bill. According to the Explanatory Notes, subsection (1),

    "will have effect so that if there is provision in, or made under, Part 1 for or in connection with regulating the conduct of referendums under the Bill, section 129(3) of the PPER Act does not prevent an order made under section 129(1) of that Act applying to referendums under the Bill".

Subsection (2), according to the Explanatory Notes,

    "clarifies that this will be the case in respect of any order under section 129(1) of the PPER Act, whenever made".

That is in the Explanatory Notes.

It is all too easy to accept these rather complicated supplementary matters without looking at them or challenging them. What is their practical effect?

Subsection (1) effectively guarantees a power to the Secretary of State to regulate the conduct of referendums. Subsection (2) allows the Secretary of State the facility to exercise that power even before the passing of the Act.

I appreciate the need for flexibility that Clause 11(1) provides in allowing the Minister to make regulations concerning the conduct of referendums. That flexibility is in line with the provisions in the PPER Act. However, the circumstances of the holding of referendums in the Bill bring in a slightly different element, for which the Act does not make allowance since at that time it was not foreseen. I am talking about the possibility that there might be two referendums on the same day. We have discussed the issue in previous amendments. It would be unlikely by all accounts, but it is important to have on the face of the Bill the assurance that the Minister may not regulate the conduct of referendums held on the same day in such a way that they are conducted differently.

In general, I support the principle that referendums concerning regional assemblies should be conducted on a universal model or procedure. After all, they propose the establishment of the same institutions, just in different parts of the country. Procedural or regulatory comparisons might spawn a wealth of complaints about unfair differentiation on the grounds of location. It would undermine the validity of the outcome if it were claimed that the electoral procedure had been conducted in a different way.

Amendment No. 74 is a probing amendment. I fail to see how it can be "immaterial" if this power is exercised before or after the passing of the Act. It is surely of the utmost relevance. We meet this particular subsection (2) later in Clause 12(7). It is confusing—or perhaps I am missing the point—that a direction,

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power or provision which is detailed in the Bill may be exercised before the Bill becomes an Act. I should welcome clarification from the Minister on that point.

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