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Baroness Blatch: My Lords, I am grateful that my amendment has been grouped with Amendment No. 13.

I should preface my comments by saying that we are grateful that the amendment responds to the arguments that we put all the way through the Bill that there should be a possibility of legal challenge. The fact that the clause began by stating:


suggested that there was no possibility of a legal challenge.

We believe that we have won the argument, because the welcome amendment introduced by the Minister allows for a challenge. The challenge is restricted in the way we accepted when we first tabled our amendments in Committee and on Report, and which we accept now. The timing is about right; I originally suggested a much tighter timescale, but the newly proposed timescale is reasonable. However, we are still misled by the Bill.

The clause is headed, "Exclusion of legal proceedings". That means that the clause describes the exclusion of legal proceedings, which is a messy way of expressing it. Paragraphs (a) and (b) are introduced by the statement:


    "No court shall entertain any proceedings for questioning".

One has to get to the bottom of the clause, as amended by the Government's amendment, before one finds the exemptions, which are very extensive. The court will entertain challenges subject to certain exemptions.

My Amendment No. 14, headed, "Legal challenge", states:


    "A court shall only consider proceedings for questioning—


    (a) the number of ballot papers or votes cast in a referendum held in pursuance of an order under section 1 as certified by the Chief Counting Officer for the referendum or by a counting officer, or


    (b) the number of ballot papers or votes cast in a referendum held in pursuance of an order under subsection (2) of section 2 as certified by a person appointed for the purpose in pursuance of an order under subsection (9) of that section, if—


    (i) the proceedings are brought in accordance with this section, and


    (ii) a claim if filed within six weeks from the date on which a certificate in relation to subsection (1)(a) or (b) is issued by the Chief Accounting Officer, counting officer or other person mentioned in subsection (1)(b)".

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Therefore, it is very clear that there is such a thing as a legal challenge. I repeat that the proposed new clause is headed "Legal challenge". It states that,


    "A court shall only consider proceedings for questioning"

if the following conditions are met. The proposed new clause further states:


    "If there is more than one such certificate for a referendum, the date on which the last certificate is issued should apply".

Even the words,


    "the last certificate is issued should apply"

are missing from the government amendment. I speak in the interests of what I call plain English. I do not think that the wording of the Bill as amended by Amendment No. 13 is at all clear. As I say, it is headed, "Exclusion of legal proceedings" and states that,


    "No court shall entertain any proceedings".

It is rather messy. It is only when one reaches the end of the clause, as amended by Amendment No. 13, that one realises that a legal challenge is possible subject to certain restrictions.

I am grateful for the Government's change of heart. The Minister has shown himself to be on the side of the House as regards the matter we are discussing. Previously noble Lords on all sides of the House showed their concern about the matter. The Minister has fought his corner extremely effectively. However, as I say, I believe that my Amendment No. 14 is clearer and is much more encouraging for local authorities or, indeed, for the electorate if they have concerns about a legal challenge as it constitutes a positive rather than a negative statement. I beg to move.

4 p.m.

Baroness Hamwee: My Lords, I believe that we are speaking to the Minister's Amendment No. 13.

Baroness Blatch: My Lords, I apologise to the House. I should not have said, "I beg to move" as I believe that Amendment No. 13 has been moved.

Baroness Hamwee: My Lords, I am sorry. I was not trying to trip up the noble Baroness. I was trying to make clear which amendment I was speaking to.

We on these Benches are also grateful to the Minister for clarifying the matter. I certainly feel considerably more comfortable about the clause than I did at an earlier stage. The noble Baroness criticised the wording of the clause. I suppose it is almost inevitable in the case of a government amendment being tabled at this stage that rather than deleting the whole clause and starting with the words,


    "Proceedings shall only be taken if",

the amendment is added to the existing wording of the Bill. I suppose we should expect that.

Will the Minister confirm that the heading of Clause 11, "Exclusion of legal proceedings", does not have legal force? Perhaps the clause could be headed simply "Legal proceedings" or with words that are a little less

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misleading to someone reading the clause headings. As I say, we on these Benches thank the Minister and his colleagues for tabling the amendment.

Lord Campbell of Alloway: My Lords, I have to oppose Amendment No. 13 for the reasons given by my noble friend Lady Blatch. I shall support Amendment No. 14. It seems to be common ground that Clause 11 cannot stand. I do not quite take the point that has just been made that at this stage of the Bill it is better to seek to retain and amend a clause rather than remove it, especially when the clause in terms is the exclusion of legal proceedings and the substance of the amendment is to confer a form of legal proceedings.

Baroness Hamwee: My Lords, with the leave of the House, I must have gabbled. I said that I supposed it was inevitable that Amendment No. 13 was tabled in the way that it was rather than that it was better done in that way. I was merely referring to human nature rather than to any precise legal detail.

Lord Campbell of Alloway: My Lords, I am grateful to the noble Baroness. I was not trying to be provocative. I hope only that the point that I made would commend itself as reasonable, particularly in view of the fact that Amendment No. 14 is well drafted, is an integral whole and is wholly intelligible. In the circumstances, as something has to be done about Clause 11, which cannot stand anyway, it seems to me that it is far better—I am not trying to make a cheap point about this—to have a clear, well drafted clause which in its entirety is readily enforceable and readily understandable rather than Amendment No. 13.

The Lord Bishop of Hereford: My Lords, I come briefly to the defence of the Minister who seems to be having an unduly difficult time since we began Third Reading. It seems to me that he has made a sensible concession in Amendment No. 13 which is not only acceptable but is logically preferable to other phrases. Normally there will be no legal challenge. There is an exception made in Amendment No. 13 as drafted. We should accept Amendment No. 13 and regard it as an entirely acceptable form of words.

Lord Rooker: My Lords, I am grateful for the right reverend Prelate's support. I hate to contradict lawyers, but I believe that what the noble Lord, Lord Campbell of Alloway, said was incorrect.

I could discuss at length why Amendment No. 14 is not as clear as Amendment No. 13. We think that a challenge by way of judicial review should be the only means for questioning referendum results. The proposals in Amendment No. 14 would open up a can of worms.

I do not want to worry anyone unduly but I should point out that parliamentary draftsmen may carry out some technical "tidying up" of legislation before it is finally printed.

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Clause 11 is headed, "Exclusion of legal proceedings". I am told that that heading is appropriate as the function of the clause is to set out when legal proceedings cannot be entertained. Amendment No. 13 states:


    "The proceedings must be brought by a claim for judicial review.


    The court must not give permission for the claim unless the claim form is filed before the end of the period of six weeks starting with the certificate date".

It could be argued that the heading is correct in those circumstances. However, if the heading needs to be changed, that can be done when the Act is finally printed. Such a change would not affect the Bill, or the final Act, in any way, shape or form. Sometimes the page numbering of a Bill is changed when it is printed as an Act. It is quite normal for such technical tidying up to take place. It may comprise only a change in the numbering of new clauses. Such new clauses may not necessarily be given a number in this House and may be inserted in the wrong place in the Bill. Parliamentary draftsmen put them in the correct place in the final Act. I do not want to make a big issue of that matter as it is not a matter that warrants making a big issue of.

As I said I would, I have tabled an amendment at Third Reading to make the clause clearer. Clause 11 begins with the words,


    "No court shall entertain any proceedings"

and then Amendment No. 13 lists exceptions to that. However, the exceptions comprise negative statements, as it were; that is, there is a reference to a six-week period and,


    "The proceedings must be brought by a claim for judicial review".

Amendment No. 13 does not leave the door open, as does the wording of Amendment No. 14.

I shall resist the temptation to speak to Amendment No. 14 at length as I was informed only within the past 30 seconds that Amendments Nos. 13 and 14 had been grouped.


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