Baroness Blatch: My Lords, my understanding is that Amendment No. 35 pre-empts Amendment No. 36.
The Deputy Speaker: My Lords, that is quite right. I cannot call Amendment No. 36. I call Amendment No. 37.
[Amendment No. 36 not moved.]
Clause 10 [Exclusion of legal proceedings]:
Baroness Blatch moved Amendment No. 37:
Page 5, line 11, leave out "No court shall" and insert "A court shall only"
The noble Baroness said: My Lords, for the purposes of speaking to Amendment No. 37, I shall repeatedly refer to cols. 55864 of the Official Report of 24th March.
When I sought to query why Clause 10 states that,
"No court shall entertain any proceedings for questioning the number of ballot papers",
and so on, I took it to mean that no court should entertain any proceedings. That is what the words say and that is what I believed they meant. I then turned to the Explanatory Notes to see whether I had misunderstood the position. One argument put
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forward in support of the provision, which I have never believed is a valid argument in this Chamber, was simply that it has been done before. Reference was made to the Greater London Authority (Referendum) Act, but the Act that is truly pertinent to the debate was passed 28 years ago. The Minister has quite openly agreed that this Bill addresses a unique provision. I should therefore like to consider my Amendments Nos. 37 and 39 in that light and on their merits.
If the Billin a free-standing clause which does not refer to any other clausestates that,
"No court shall entertain any proceedings for questioning the . . . ballot",
I shall take it to mean just that. The noble Lord, Lord Rooker, at col. 559, said:
"the clause does not rule out any and every challenge to a referendum result being looked at by the courts".
But as the Bill states that,
"No court shall entertain any proceedings",
it does rule out any challenge regardless of whether it is minor or major. The noble Lord, at col. 560, went on to say:
"The clause is certainly designed to cut out less serious challenges".
Not only does that contradict the noble Lord's first statement, but there is no reference to either serious or less serious offences being brought before the court. Indeed, as I keep repeating, the Bill states:
"No court shall entertain any proceedings".
The noble Lord went on to say that,
"an alleged serious error could be challenged in the courts",
but he could not give an example. How can it be challenged in the courts if no court will entertain the proceedings? He went on to say:
"Court challenges take time. Undue delay could result in difficulties as regards introducing the main Bill to set up the assemblies".
If a wrong has been done and a remedy has to be sought in court, that wrong must be remedied regardless of whether it delays this or any other Bill. It is not an argument to say that a court challenge should not be allowed because it might delay this Bill or the later assemblies Bill.
The noble Lord went on to repeat:
"We recognise that the clause may not prevent all challenges, particularly those of a serious nature".
Again I say that that cannot be the case.
The noble Lord also said that my Amendment No. 72 in Committee was a "little dodgy" because it imposed a rather short time scale. I have taken him at his word and extended it to three months, which I think is probably more reasonable. I think that it would be wrong to make the time scale any longer as it could allow for very much delayed vexatious challenges. Neither the Minister nor we would want that.
The noble Lord, at col. 561, went on to say that he hoped that,
"Members of the Committee accept that the clause does not prevent serious challenges".
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However, as the provision states that,
"No court shall entertain any proceedings",
serious or otherwise, I do not believe that that is the case. As long as those words remain in the Bill, I think that there will have to be a very good explanation as to why we should accept what the Minister has been advised.
The noble Lord, at col. 563, went on to say:
"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".
We had a debate about the ouster clause, but I still do not believe that it impacts on how we approach Clause 10. In the middle of the night when we were discussing this amendment in Committee, when he had finished his duties as the Deputy Chairman of Committees, my noble friend Lord Elton leapt to his feet to resume his place on these Benches. He admitted to me that he had never before sat through such a confusing and extraordinary debate. When able to speak in the debate, at col. 564, he said:
"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 sums of money to lawyers to tell us what they mean?".
In winding up on the amendment, I said:
"The public will have to make sense of what it means".
We in this place are part of the Westminster village. We are accustomed and privy to legalese on a daily basis. However, it is the public who will have to understand what the Bill means. As I said then:
"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'".
I agree with the noble Baroness, Lady Hamwee, who had almost but not quite the last word on that amendment. She said:
"It is so serious that one will want to read the debate".[Official Report, 24/3/03; cols. 55864.]
I have read the debate. I still think that my amendments are worthy of consideration. I beg to move.
Lord Waddington: My Lords, I have the gravest doubts as to whether the wording of Clause 10 could exclude proceedings for fraud. However, the fact remains that Amendment No. 37 can do no harm. Certainly it would make the matter a lot clearer. I cannot see how it could do any harm. I therefore urge the Minister to accept it.
Baroness Hamwee: My Lords, the point is indeed serious. However, as the noble Lord, Lord Rooker, has said that the Government will come back with an amendment to the clause, I think that it would be more useful to consider what the Government are working on. I have one observation to which the Minister need not
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reply. Given that the role of the courts which cannot be ousted is that of judicial review, and given that the period for applying for a judicial review is, I believe, six weeks rather than three monthswhich is the period mentioned in Amendment No. 39I should like to know how the provision fits within the context of the overall law of judicial review. One has to be extremely careful about the unforeseen consequences of this type of provision.
Lord Rooker: My Lords, I am grateful for the initial remarks of the noble Baroness, Lady Hamwee. Yesterdaywhen I was criticised by the noble Baroness, Lady Blatch, for even raising the issue of Clause 10 in relation to Clause 5, although I was at the time speaking to Amendments Nos. 38 and 40, I thinkI made a firm commitment that we would come back at Third Reading with government amendments to Clause 10. That said, I hope that we do not need to prolong the issue. I am not a lawyer and therefore I must operate on the best advice I am given. The noble Lord, Lord Waddington, is absolutely right: at present there is no evidence that the courts could be ousted from considering, say, a fraud case concerning, for example, a returning officer.
It appears that Clause 10 imposes a blanket ban but it does not. That is what I am told. In this type of situation we non-lawyers find out how lawyers make their money. We are dealing with something that appears to be absolutely straightforward with no qualification whatever. It looks like a blanket ban but we are told that it is not. There are circumstances in which the courts would hold the right to look into something.
Therefore, we shall return at Third Reading with an amendment which not only relates to fraud but focuses on issues such as the type of legal challenges that can be made, the type of court that would have jurisdiction and possibly a time limit in bringing proceedings. There are a number of options, including something along the lines suggested by the noble Baroness in relation to the timing of legal challenges. But we need to consider the matter very carefully because Third Reading will be our last opportunity to get it right.
Lord Stoddart of Swindon: My Lords, before the noble Lord sits down, and in the light of what he has just said, will he be able to ensure that the amendments that he might propose are available in time for other people to take some advice and, if necessaryif they believe it desirableto table amendments to his amendments?
Lord Rooker: Yes, my Lords. As someone said yesterday, when a Bill is published, there are notes on the clauses. However, I regret that when the Government or others come along with substantial amendments which the Government accept, the Explanatory Notes for those amendments are not necessarily available. In this case, I shall not be able to stand here at Third Reading with amendments to Clause 10 unless I or the Government
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have been able to publish an English translation with legal footnotes and back-up explaining exactly what those changes mean.
Frankly, if I am not up to the task, I shall plead with my noble and learned friend the Attorney-General to come along to help out. I hope that, if I can obtain an English translation explaining what we are trying to achieve with the necessary precedents, I shall be able to cope and give people comfort. However, I shall not return with amendments unless a satisfactory explanation has been given in advance. By definition, that explanation must allow for the point made by the noble Lord, Lord Stoddart.
I do not have any idea of the timetable, although I have a vague idea in my mind about the date of Third Reading. I thought that it would be on 28th April in order to meet the requirement for Royal Assent to be given on 8th May, as I was told by the noble Baroness, Lady Blatch. But there is sufficient time. I know that the recess is in the way but, if there is time to dream up the amendments, there is time to dream up a translation that we non-lawyers can understand.