Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Essentially, we have already debated the clause, so I will be brief. An amendment that was discussed last Tuesday would have effectively neutered the clause. Conservative Members felt that, whatever the precedent, the issues surrounding the clause give cause for concern. It should be noted that the exclusion of access to the courts over queries about the electoral process has only ever occurred under Labour Governments.

There does not seem to be any reasonable logic in excluding access to the courts in matters of dispute over votes cast or the number of ballot papers; it does not feel right. I hope that the Liberal Democrat—I deliberately use the singular—will join Conservative Members in resisting what is essentially an extension of the Government's power. The clause would mean that officers appointed by the commission would be responsible for such matters and it would deny citizens recourse to the courts.

Mr Gary Streeter (South West Devon, Conservative)

I build on what I said last week about the exclusion of access to the courts. The clause leaves a nasty taste in the mouth and discomforts Opposition Members. The Minister was keen to point out last week that there are precedents. They were the Referendum Act 1975, the Scotland Act 1978, the Wales Act 1978, the Referendums (Scotland and Wales) Act 1997 and the Greater London Authority (Referendum) Act 1998. All those Acts were introduced under Labour Governments and that brings Conservative Members no comfort. We are concerned that the rights of someone who wants to query the result of such a referendum, which could be close in parts of the country, are being curtailed by the clause.

Unusually, I struggled to follow what the Minister said in his response last week. I normally find him extremely clear, and his arguments cogent. He said that the presence of clause 10

''hardly affects all the statute law of the United Kingdom. It is nonsense to suggest that the wider rights relating to judicial review are in any way being affected or curtailed.''—[Official Report, Standing Committee A, 3 December 2002; c. 47.]

The clause states that ''No court'', which I understand to mean no court, ''shall entertain any proceedings'', which I understand to mean any proceedings,

''for questioning the number of ballot papers or votes cast in a referendum held in pursuance of an order under section 1''.

The way in which most people would proceed were they unhappy with a result would be to go to court for a judicial review. The clause appears to expressly exclude that possibility. I therefore do not understand the Minister's response last week. I should like maximum clarity, given that what Ministers say on the Floor of the House and in Committee stands for all time and people take notice of it. I hope that the Minister can be clearer. Does clause 10 preclude people from seeking to go to court for a judicial review on the outcome of a referendum or not? If it does not, what is the clause's primary purpose?

We do not expect corruption, vote rigging or technical deficiencies in any ballot that we hold in this country. In our political systems, we are broadly a very incorrupt country, and we should be thankful for and ever vigilant of that. However, things can creep up on us by surprise. The presidential elections in the United States of America are an obvious example. Who would have thought that in the most sophisticated nation on the face of the earth there would be technical difficulties in recording people's votes? If it had not been for the ability to go to court to obtain clarity, we would still have a President with a question mark over his democratic legitimacy. We do not want that to happen in this country, or for the outcome of elections to be hanging in the air so that people do not know whether a regional government has been voted for. Clause 10 stands in the way of achieving clarity.

When the Minister responded last time, he said that clause 10 existed to prevent people clogging up the system by going to court with vexatious or frivolous claims because they did not like the outcome of a referendum. As a lawyer, I do not always have confidence in the judicial processes in this country, but it is perfectly within the capacity of the judicial system to deal with such matters quickly. Applications for judicial review can take place in a matter of two or three days—even within 24 hours if it is urgent. A time delay is therefore not appropriate. Courts are well used to throwing out vexatious and frivolous claims; it happens week in week out throughout this great country.

I cannot see a reason for the clause or its impact. Unless the Minister can clarify whether it prevents someone in this country from going to court for a judicial review on the outcome of a referendum, the matter will remain shrouded in mystery and I will be inclined to vote against it.

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

Opposition Members raise the question of precedent, and query whether the Government should cite examples of precedent in defence of the clause when all of them were legislated for under a Labour Government. It is true that many of the examples of precedent that exist for this clause, which is a simple repetition of what is contained in other legislation, were made under a Labour Administration. As far as I am aware, it is only under Labour Administrations that we have had referendums. I do not remember a Conservative Administration testing the views of the public. Even on larger constitutional questions, they did not test people's views on a specific question, but turned their face against the whole concept of referendums. That is a political debate, but it is an interesting one that has been highlighted by Opposition Members.

The hon. Member for Runnymede and Weybridge said that we detailed many of the issues when we discussed amendments to clause 5. I would not want to repeat that debate in full, but I must say that the purpose of clause 10 is to prevent any challenges other than serious challenges—I emphasise that they must be serious—to certification of the number of votes or ballots made by a chief counting officer or counting officer. The aim is to ensure that the Government can respond quickly to the result of a referendum without {**?11**}being caught up in legal challenges that are not serious. If there were such challenges, it would be difficult to move on with legislation to establish assemblies until they were concluded. The purpose of the clause is to ensure finality and certainty for the advisory referendum. It follows the precedent set in other referendum legislation.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The Minister said that the purpose is to exclude any challenges that are not serious. Can he tell me, as a potential litigant, how I would go about mounting a challenge on a serious issue? As I understand it, I am denied all access to the court.

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

I cannot advise the hon. Gentleman on such legal matters, save to say that it would be for the court to decide how to interpret any application in the legislative climate in which that application is made. It is important to emphasise that the wide body of case law needs to be taken into account. As hon. Members know, the presumption is always that Parliament legislates in the full knowledge of the existing state of the law built up by the courts. There is a significant body of case law on the interpretation of statutory provisions. In those cases, they have rightly been protective of their jurisdiction. The wording of the clause would not necessarily be the end of the matter. The meaning of the clause would be construed by the court in the light of case law and the circumstances of any challenge.

Mr Gary Streeter (South West Devon, Conservative)

Can the Minister give an example of a court entertaining proceedings in the face of a statute that states that

''No court shall entertain any proceedings for . . . ''?

Is it possible under the clause for someone to go to court on judicial review of the outcome of a referendum? Yes or no?

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

I can envisage circumstances, albeit rare and exceptional, when someone may make an application to the court to challenge certification or purported certification made by a chief counting officer.

Mr Jim Knight (South Dorset, Labour)

I have been listening with at least one ear and with care to the proceedings. The clause states that the number of ballot papers or votes cast should not be questioned, but would it not be possible for someone to mount a legal challenge against the conduct of an election without questioning the number of votes cast? That would provide a legal avenue for people to question the election without questioning the number of votes cast.

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

That would certainly be one option for anyone making an application to the court to mount a challenge on those issues. It is important to consider the battery of case law not simply in respect of clauses for other referendums, but also ouster clauses, which oust jurisdiction and the way in which it has been interpreted by the courts.

I understand that there are other cases in which ouster clauses have been challenged such as, for example, the Attorney-General v. Ryan 1981 or Anisminic Ltd. v. the Foreign Compensation Commission 1969.

Mr Gary Streeter (South West Devon, Conservative)

What was decided in those cases?

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

It was decided that the court had a role to examine serious issues, even though the literal description of the provisions in the Acts to which they related excluded judicial intervention on the face of it. There are examples of how ouster clauses have been interpreted, which is the point that I sought to make. Parliament must legislate in full knowledge of other case law. Indeed, when the former Solicitor-General, Lord Falconer, talked about that issue in a debate on the Greater London Authority (Referendum) Act 1998, he said:

''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.''—[Official Report, House of Lords, 29 January 1998; Vol. 584, c. 372.]

It is about making sure that we strike the right balance.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Is the Minister saying that the wording of the exclusion clause in the Greater London Authority Act 1998 is precisely the same as that of clause 10?

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

That is indeed my understanding of the way in which clause 10 is framed, which is why we have carried over that particular provision. It is about making sure that we strike the right balance between allowing serious challenges but excluding frivolous challenges while also ensuring that we have finality and certainty in the interpretation of the public's will in an advisory referendum.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

What the Minister has said is deeply unsatisfying because his argument is not clear. I am not sure whether the clause is intended to prevent or to facilitate access to the courts. I am not sure whether he is telling us that it does not matter that the Bill says, ''There shall be no access to the courts because it is all subordinate to case law, which says that there shall be access to the courts.'' Last week, I raised the prospect that the Human Rights Act 1998 might provide that there is access to the courts, notwithstanding the fact that the statute says that there shall not be access to the courts. I shall have to advise my hon. Friends to vote against the clause.

Whatever ducking and diving the Minister has been able to do around precedents and technical definitions, he is suggesting that, notwithstanding the fact that the clause states:

''No court shall entertain any proceedings'',

some courts may entertain some proceedings in some circumstances. Imagine the Foreign Secretary's indignation if the Government of Zimbabwe were to introduce a provision like that into their electoral law. I will not mention Iraq because it is probably a poor example of the involvement of the judiciary in the electoral process. However, if the Government of some country with a less good tradition and history of democratic elections than this country were to introduce such a provision, we would surely reject it out of hand and say that it was utterly unacceptable because recourse to the courts is the absolute of cornerstone of a properly organised democracy and an absolute assurance of democratic rights and freedoms.

Mr Jim Knight (South Dorset, Labour)

Does the hon. Gentleman accept that we are talking about a referendum, which is advisory, and not an election? He is framing the clause in terms of a great dictator saying that no one can challenge an election result in the courts. The clause does not say that no one can challenge a referendum in the courts; it simply says that no one can challenge the number of votes cast. A referendum can yield a decisive result in a referendum that is advisory to the Secretary of State. If there were serious questions about the conduct of the referendum, it would still be possible to challenge it.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The hon. Gentleman is obviously right. Apart from a challenge to the counting of the votes, nothing in the clause prevents a challenge to other aspects of the election. The hon. Member for Ludlow, who is not in his place, suggested this morning that an all-postal ballot might be more susceptible to fraud. I shall not debate that issue now but, as I understand the provision, it excludes any court from entertaining a challenge to the chief counting officer's decision about the number of ballots cast, yet there may be concerns about the number of ballots cast.

There may be all sorts of practical and administratively convenient reasons for excluding the courts, but we are at the top of a slippery slope. As a matter of general principle, we should not exclude the courts from reviewing any aspect of government, particularly the conduct of elections and referendums, which are at the very heart of our democracy. In a modern, civilised democracy of the 21st century, it is not much to ask that the ultimate arbiter of any question should be the courts—not an administrative officer appointed, ultimately, by a quango. Therefore, I urge my hon. Friends to vote against the clause.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 8, Noes 5.