Amendment proposed [this day]: No. 3, in

Clause 5, page 3, line 20, at end add

'subject to any finding to the contrary by any court of competent jurisdiction'.—[Mr. Hammond.]

Question again proposed, That the amendment be made.

I remind the Committee that with this we are taking the following:

Amendment No. 4, in

Clause 10, page 5, line 3, leave out 'No Court shall' and insert 'A court shall only'.

Amendment No. 5, in

Clause 10, page 5, line 6, at end add 'if such a claim is brought within 10 days of the date of the referendum as specified in the order under section 2(1).'.

Thank you, Mr. Benton. I formally welcome you to the Chair.

Before we adjourned, I made a few brief interventions about Clause 5. I was asking about the accountability of the chief counting officer and, over lunch, I took the opportunity to remind myself of the provisions of the Political Parties, Elections and Referendums Act 2000.

What happens if a counting officer makes a mistake? We know that electoral mistakes can happen even in sophisticated democracies such as that of the only remaining superpower on the planet. What is the chain of accountability should such a thing take place? The Bill seeks to prevent court action from following, but who appoints the chairman of the Electoral Commission, if he is the counting officer, and who can remove him or her should a series of mistakes be made or other irregularities occur? I would like the Minister to deal with questions relating to the accountability of the counting officer.

Thank you, Mr. Benton. I also welcome you to the Chair of the Committee. Although we hope to dispatch business effectively, we will look to your solid and wise guidance on procedural matters at all times.

We are debating amendments Nos. 3, 4 and 5. I will try to answer the questions raised so far. Given my lack of specific legal training, I will make my answers as simple as possible, not least for my own understanding.

As Clause 5 states, certification by the chief counting officer, which is made under section 128 of the Political

Parties, Elections and Referendums Act, will identify the result of the referendum. The chief counting officer will

''certify

(a) the total number of ballot papers counted, and

(b) the total number of votes cast''.

If they were taken in isolation, amendments Nos. 4 and 5 would each negate the meaning and intent of clause 10. I presume, however, that the hon. Member for Runnymede and Weybridge (Mr. Hammond) intends amendments Nos. 4 and 5 to be consequential on each other. He presumably means that courts should entertain proceedings only if

''a claim is brought within 10 days of the date of the referendum''.

The Government believe that the argument for a 10-day window of opportunity is flawed. It would allow frivolous challenges to pour in, be lodged and clog up the process, which could mean that the referendum result could not be finalised. That would be an undesirable frustration of the will of the people who expressed their wishes in the referendum.

The purpose of our approach is clearly to ensure that legal challenges to the referendum result are prevented. To place the debate in the context of clause 10, we are ensuring that

''No court shall entertain any proceedings for questioning''

the certification by the chief counting officer.

I am well aware of what Clause 10 does. The Minister's argument is extraordinary: because somebody may make a frivolous claim, everyone should be prevented from accessing the courts. Such an argument could equally be applied in relation to the libel Laws but we do not so apply it. The courts have well-established and effective procedures for dealing with vexatious and frivolous claims. Frankly, the Minister's argument does not stand up. It does not apply specifically to electoral appeals. It would apply across the board if it had any validity at all.

It is precisely because we want to ensure that conclusions can be drawn swiftly and finally that there are provisions not only in this Bill, but in a weight of previous referendum legislation. Incidentally, such provisions were not always opposed by Conservative Members. The hon. Gentleman says that two wrongs do not necessarily make a right, but there are five specific examples of how legislation has set precedents: section 4 of the Referendum Act 1975, schedule 17(10) of the Scotland Act 1978, schedule 12(11) of the Wales Act 1978, section 4 of the Referendums (Scotland and Wales) Act 1997 and section 6 of the Greater London Authority (Referendum) Act 1998.

Our purpose is to ensure a swift and final decision and a firm conclusion, so that the views of the public can immediately inform the decisions that are subsequently made by the Government.

I find this quite astonishing. Is the Minister saying that swiftness of the conclusion is more important than access to justice? If he is, he may find that the Chinese system has something to commend itself.

I am not saying that. There are obviously issues surrounding legal challenge, to which I will turn when I comment on points that have already been made by hon. Members.

The hon. Gentleman raised the issue of compatibility with the European convention on human rights—I know that he was concerned about that. Having considered the matter carefully, we have certified that the Bill is compatible with all articles of the convention. We have considered the matter particularly in relation to article 6, which, among other things, provides that a person's civil rights and obligations should be determined by independent or impartial tribunals such as the courts. We do not consider that article 6 is engaged for two reasons. First, the referendum is advisory, not binding, so no formal determination would be made by such a referendum, which means that that is not directly decisive on a person's civil rights or obligations. Secondly, we do not believe that the matters fall under the accepted definition of affected civil rights.

The hon. Member for Kingston and Surbiton (Mr. Davey) asserted that our approach is akin to the wholesale abolition of judicial review, that being similar to the point at issue. The legislation is framed specifically in respect of the chief counting officer and other counting officers certifying the numbers of votes that are cast and the result. It is defined precisely and goes no further than that. That 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.

Attacking the principle of the judicial review of electoral outcomes is the thin end of the wedge. While I would not agree with all thin-end-of-the-wedge arguments, we should consider this one carefully because the courts are there to protect the rights of individuals. I ask the Minister to reflect carefully on the point that the hon. Member for Runnymede and Weybridge and I are seeking to make. During the recent elections in America, the Florida result went to the courts and it took some time to reconcile the matter through the judicial process. We all remember the hanging chads. If the outcome of an American presidential election can wait for a judicial review, I do not understand why the outcome of an advisory referendum cannot.

I am not sure whether the consequences of the precedent that the hon. Gentleman quoted would necessarily follow through, not least because the referendum that we are considering is different, being advisory, not binding. Nevertheless, it is fair to ask a question about the scope for possible legal proceedings. The courts will make their own interpretations of the provisions that we set out in statute, should any challenge be lodged. The courts guard their rights and jurisdictions jealously. There is a substantial body of case law concerning similar provisions, to which I have referred. If a serious situation arose, involving, for example, fraud, and a challenge were made, I am advised that the court could argue that a fully valid certificate had never truly existed and that, therefore, the court had the right to

intervene. The issue is the definition of a complete and full certificate. The court could not, and would not, substitute its own judgment for that of the chief counting officer; the court would not issue a new certificate to replace the original. The proposed additional wording in Amendment No. 3 is unnecessary. The only options open to the court are to quash the certificate or the order and have a recount.

The ways of challenging the proceedings set out in Clause 5 are clear for the courts to interpret. The precedent has been set. That is the way that other legislation has proceeded in the examples that I have cited.

The Minister has argued that the Government's interpretation is that article 6 does not apply and that, in the absence of an article 6 imperative, it is efficient and convenient to exclude the courts. If article 6 did not apply in relation to elections to this place, for example, would the Minister argue that it was efficient and convenient to exclude the courts from reviewing any result—for example, the result of the Newark parliamentary election in 1997?

Without being drawn into too many specific cases, all I can do is to pass on the Government's legal advice. We do not believe that these matters fall under the accepted definition of civil rights. In the case of Cheminade v. France, the European Court of Human Rights determined that electoral disputes were about political rights and not civil rights. That obviously helped to inform our opinion that this provision was compatible with the European convention on human rights.

Does that Government advice, based on the distinction between civil and political rights, apply equally to parliamentary elections? Would the Government be able to exclude the courts in the same way from parliamentary elections?

I would not presume to make any legal determinations. As a mere Government Minister, it is not for me to come to such conclusions. However, article 6 provides for the determination of a person's civil rights and obligations by an independent and impartial tribunal. Therefore, we have to consider not only the definition of civil rights but the definition of what a determination is. We do not believe that article 6 is engaged, for the reasons that I have set out.

The Minister has just used the expression ''a mere Government Minister''. As a mere Government Minister, he would not presume to determine these issues. However, that is precisely what we are talking about—allowing a mere Government Minister to determine issues that most people would think should properly be determined by the courts. Does he not feel uncomfortable about that?

In my self-deprecating comments, I should have set out the wider context. The decision would not be for me; the decision would be for Parliament to make in the proceedings of this Committee and in approving the Bill as it progresses towards becoming an Act of Parliament. If Parliament decides today and during the passage of this Bill to

approve this provision, the courts will have to take that into account when interpreting legislation.

Hon. Members have to take other issues into account in their amendments. We believe that there is confusion in the wording of the amendments. For example, in Amendment No. 3, the word ''finding'' might cover not only an order by the court, but any detailed findings or legal facts. There could be a huge grey area as to the effect of the words ''subject to'' and whether the certificate would no longer be valid.

I am not a lawyer either, but the matter seems fairly clear to me. Someone issues a certificate that purports to certificate that something has happened. A finding to the contrary by a court of competent jurisdiction is pretty clearly a finding that the certificate has not been properly issued. I would not have thought that there was much doubt or confusion about that.

Except that I am advised—other members of the Committee have legal training in these matters—that a ''finding'' does not necessarily mean an order either overturning a certificate or not overturning it. It could be the ruling that the court makes in making the order: its interpretation of the law and the findings that it makes along the way. In so far as a certificate is either made or not made, if the Amendment were introduced, there would be a huge number of grey areas. The phrase, ''subject to any finding'' could cause all sorts of legal and logistical difficulties.

I have listened closely to the Minister, and it seems evident that, as a mere Minister, he is right that he is obliged to act according to what Parliament has said in terms of the precedent of the Greater London Authority (Referendum) Act, the Referendums (Scotland and Wales) Act and, indeed, the Referendum Act. In that respect, the advice is clear. To breach that precedent would provoke a debate in which the Minister would not want to engage.

My hon. Friend makes a strong point about the precedents that have been set, and that we seek to follow in the Bill in the normal way. Obviously, consistency with similar legislation is important. That needs to be taken into account.

The Minister kindly elucidated earlier that the courts could judicially review the certificating process if it was considered that there had been fraud. Will the Minister clarify that and say more about what legal opinion he has taken on the matter? If the fraud were simply related to the number of votes cast, surely parts of clauses 5 and 10, to which the amendments refer, would prevent fraud from being examined by the court. That would go against the legal opinion that the Minister has said that he has taken.

I am not sure that that is entirely the case. It is the process by which a certificate is formed that is at issue. Clearly, the Ouster Clause—clause 10, which we will later discuss in more detail, and to which amendments Nos. 4 and 5 refer—has specific exclusions from legal proceedings. There is a wider

interpretation that any court would make, should any challenge still be lodged, obviously taking into account clause 10 and the exclusions therein. In so far as there are other, and extremely serious, scenarios that the hon. Gentleman may wish to paint, the court has a certain leeway in considering the process leading up to certification with those issues as excluded by clause 10.

Is it not the case that the hon. Member for Kingston and Surbiton should talk to the hon. Member for Winchester (Mr. Oaten)? At the 1997 General Election, the hon. Member for Winchester became a Member of Parliament. A certificate was issued, but it was overturned by a subsequent court. Eventually, there was a By-election—

He won.

Indeed. Should not the hon. Gentleman take legal advice from the hon. Member for Winchester?

Judging by the expression of the hon. Member for Kingston and Surbiton, I am unsure whether he wishes to take legal advice from his colleague. However, a pertinent point has been raised.

I want to deal with a matter that was highlighted by the hon. Member for South-West Devon (Mr. Streeter). He asked who was responsible for appointing the chief counting officer and for holding them to account? Under section 128 of the Political Parties, Elections and Referendums Act, a chief counting officer is either the chair of the Electoral Commission or a person appointed by it. The chief counting officer appoints the counting officers, but the chair of the Electoral Commission has discretion over these matters. Therefore, accountability is to the commission and, in turn—as I understand the situation—to the Speaker's Committee of the House of Commons, and thence to Parliament. Thereafter, I suppose that the appointment is made by the Queen, on the basis of an address from the House of Commons under sections 1 and 3 of that Act. That is the chain of accountability.

I do not want to be needlessly difficult, but I wish to press the Minister on the question that I asked him. He graciously made it clear that he does not know the answer to it—I do not know it either—but an answer should be provided; that could be done in writing. The key question is: does article 6 not apply because this is a civil matter as a consequence of the fact that the referendum is only advisory? If the referendum were not merely advisory, would this be a political matter, and would the article then apply? That raises the issue of the discretion that is available to Ministers.

A fascinating series of reviews of electoral law has been passed to me. Perhaps the best thing for me to do would be to write to Committee members, specifically on the case of Cheminade v. France, which I cited earlier.

As I said, many of these provisions have been included in previous legislation; they were not opposed when the Bills that contained them were enacted. The provisions exist; we merely seek a continuation of them. We must guard against frivolous action, and we

are following the advice that we have been given. Therefore, I ask the hon. Member for Runnymede and Weybridge to withdraw Amendment No. 3, and not to press amendments Nos. 4 and 5. If that is not done, I ask the Committee to resist the amendments.

This is my first opportunity to have dealings in Committee with the Minister in his ministerial capacity, although we had many exchanges when he was as active a Back Bencher as Government Back Benchers are allowed to be in Standing Committees. I am sorry to say that I found the argument that he expressed in his first ministerial outing to be contrived and unconvincing in the extreme.

We can only deal with what is written in the legislation. Clause 5(3) states:

''Any question as to the number of votes cast in a referendum . . . is determined by the certificate of the Chief Counting Officer''.

Clause 10 states:

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

That is fairly conclusive. I think that the Minister is suggesting—he may wish to confirm or deny this—that the clever and devious legal mind may find other ways to challenge the issue of the certificate than to challenge head on the ballot papers or votes cast. That is disingenuous. There is an important issue here, and my reading of Committee members' body language suggests that there is genuine feeling about it.

There may be a disagreement or dispute over the number of ballot papers cast. For example, if I stood outside a polling station all day and counted 350 people going in to vote, but when I attended the count later that evening the chief counting officer told me that there were only 250 ballot papers in the box, I would instinctively believe that a bundle of papers had gone missing, and I would expect to have a way to remedy my concern. It cannot be right to say that the courts should properly be excluded from that process.

The Minister has cited only precedent and expediency. He has further reinforced what I freely admit is already a well-enforced prejudice against the European Court by telling us that it determined that voting is not a civil right but a political right when it considered a French case. In the school in which I was brought up, voting is very much a civil right and it is to be protected and preserved at all costs. I have always understood that the purpose of our independent judiciary is to protect us against incursion on, and erosion of, our civil rights by an over-mighty Executive, which is represented in this case by a mere Minister who would have to make the decision in the absence of the right of access to the courts.

The matter is serious. I do not claim to be an expert on the precedent and I am prepared to accept that there is a precedent for excluding the courts. However, a precedent for doing something does not mean that it is right. My instinct as a non-lawyer is that it is absolutely wrong to exclude access to the courts on such an important matter. I know of no other example in civil life, especially when political appointees are the

ultimate determinants of a process, where the citizen is denied access to the courts to review a decision. Even a person who was charged with a serious crime—I shall not name the case, although we are all aware of it—on which a court made a decision to extradite and the Home Secretary made a decision to extradite had access to the highest courts to request a review of the Home Secretary's decision, and that is right. It is extraordinary that ordinary citizens of this country can be denied such a right of access on the ground that the right to vote is a political right, not a civil right.

I must press the Amendment. I urge my hon. Friends and other Opposition Members to vote for the amendment and against the extraordinary clause 10. [Interruption.] As my hon. Friend the Member for New Forest, West (Mr. Swayne) reminds me, I hope that any right-thinking, free-thinking and liberal-minded Government Back Benchers who do not aspire to a ministerial career will join us.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived.

On a point of order, Mr. Benton. I did not want to raise this at the beginning of the sitting because I did not want to interrupt my hon. Friend the Member for South-West Devon, who was in full flow. You were not here this morning, Mr. Benton, but the hon. Member for Scarborough and Whitby (Lawrie Quinn) suggested in an Intervention that the Leader of the Opposition, my right hon. Friend the Member for Chingford and Woodford Green (Mr. Duncan Smith), had indicated during a visit to the north-east that a future Conservative Government would scrap any regional assemblies that had been set up on coming into office. I bit my tongue at that moment because I wanted to check my facts, but for the record I advise the Committee that in an interview with The Journal, which is published in Newcastle, my right hon. Friend confirmed that an incoming Tory Government would not scrap the regional assemblies set by Labour without holding a second referendum. That important point should be placed on the record in view of the contrary comments made earlier.

Further to that point of order, Mr. Benton. I understand what the hon. Gentleman is saying. He refers to an article in The Journal. I may be able to provide him with a transcript of the live interview so that we can see what was actually said. I prefer to reserve my judgment until we see that transcript.

Order. That is hardly a point of order. I have no objection to hon. Members correcting statements, but there is a way of doing so.

The Chairman, being of the opinion that the principle of the Clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 5 ordered to stand part of the Bill.