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Clause 6

Volume 301: debated on Monday 24 November 1997

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Exclusion Of Legal Proceedings

Question proposed, That the clause stand part of the Bill.

The clause is unusual in relation to elections, although I concede that a similar one was included in the legislation for referendums in Scotland and Wales. Bizarrely, because of the guillotine that clause was not debated. The clause that we are debating states

"No court shall entertain any proceedings for questioning the number of ballot papers counted or votes cast as certified by the Chief Counting Officer, or a counting officer, appointed in accordance with section 3."
It would be unusual, even if there had not been a by-election in Winchester, for someone not to raise constitutional points about the clause's impropriety and unsuitability. My hon. Friends and I shall ask the Committee to reject the clause. If it is accepted, no matter what goes wrong in the election there can be no challenge to the number of ballot papers counted or votes cast.

Some six months ago, at the general election, my hon. Friend the Member for Winchester (Mr. Oaten) was elected with a majority of two.

We did, and I am glad to say that history tells the tale. Nobody would have denied the right of the former Member for Winchester to challenge the result on the ground of the number of votes that were certified as being duly cast for each of the candidates. I am not sure that those who lose by two votes in future will do the same.

If a Conservative loses by two votes and decides to take us on again on the basis of 55 unfranked ballot papers, I warn the hon. Gentleman he might be as embarrassed on the morning after the night before as I hope Conservative Members were this time.

The hon. Gentleman has missed the point, as I will explain later when I make my speech.

The hon. Gentleman wants to make a separate point.

No one denies that something went wrong at Winchester. My hon. Friend the Member for Winchester accepted that and so did Gerry Malone. It was agreed by both parties that the matter should go to court. As a result of the challenge, there was an extraordinary reversal of fortune when the re-elected Member had a majority of 21,556. That is 68 per cent. of the vote and a majority of 39.6 per cent.

I think that the right hon. Gentleman does know it, but he may not know that we have such an efficient Library that it has already produced a statistical analysis of by-elections in this Parliament. I was not expecting to be presented with the updated figures which show that the share of the vote that my hon. Friend won in Winchester was higher than the share of the vote for any party, except for some Labour Members. At the top is the hon. Member for Bootle (Mr. Benton) who got 74.4 per cent. of the vote. The Member with the highest percentage of the vote in Northern Ireland was the hon. Member for South Antrim (Mr. Forsythe) who got 41.3 per cent.

As a result of the Winchester challenge, my hon. Friend has converted the smallest Liberal Democrat majority to the largest Liberal Democrat majority and the largest share of the vote, leaving my hon. Friends the Members for North Cornwall (Mr. Tyler) and for Orkney and Shetland (Mr. Wallace) far behind. He has a majority larger than that of any Tory Member.

It is always the former Prime Minister, the right hon. Member for Huntingdon (Mr. Major), who tops that poll. He has a majority of 18,340 and 31.8 per cent. of the vote, but he has been overwhelmed by my hon. Friend the Member for Winchester who sped past him. The important issue is that there was a court challenge relating to the number of votes that had been counted. Whether it is an election or a referendum, Parliament should not state that nobody can challenge the result.

8.45 pm

I say that not just because my hon. Friend could have his re-run and the former Member for Winchester could challenge the victory, but in the interests of all our parties. In the cause of any future result we should delete the clause. I hope that the Committee agrees. If there is a proper ground for an appeal the courts should be able to decide and should not be precluded from doing that by an arrogant clause.

The reason for the clause is a mystery. In our view, the Government and their officials must be held to account for errors. Mistakes are not uncommon. The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) spoke about the Winchester by-election and I should like to correct him on one point. The first election was won by Gerry Malone who was denied his victory by incorrectly franked ballot papers.

No, I will not give way because this is not my main point. The hon. Gentleman is entitled to have his day in the sun and he gloated and stuck the result up our noses. We did not like the consequences of the re-run, but anyone who sees his opponent win by two votes when 50 ballot papers show that he should not have won would take the decision that was taken by Gerry Malone. It is not a familiar process. There can be errors in sorting and in franking and there should be a right of appeal if circumstances permit.

The clause sets a dubious trend. Effectively, it is contracting out of the principle of judicial review. Parliament would have the last word and courts could be excluded if the clause were included in the legislation. Ministers may be tempted to exclude judicial review in other legislation or to include such a clause in the substantive Bill on the Greater London authority.

The Minister for London and Construction has recently been to New York. Apart from parliamentary answers, I know that from meetings that I went to there. At every one of them I was told, "Oh, was here three weeks ago." He will know that New York's new constitution was put in place just four years ago. It is still being explored and people are testing the ground. There is much doubt over the mayor's powers. The council can veto the mayor's legislative proposals, but the question whether it can veto his power of appointment is rather vague. The Minister will probably be aware that, in the New York courts, there are more than 20 cases of judicial review of the mayor's decisions. If they had such a clause in their substantive Bill, all those powers would be excluded. That shows that it is essential that the checks and balances of the courts versus Parliament are maintained. We share the Liberal Democrats' view that the clause should not be included in the Bill.

I hope to be able to persuade the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) that he has misinterpreted the clause. When I have explained exactly what its impact is, I hope that he will recognise that it is not sinister, as he implies.

Clause 6 is a valuable protection to ensure that the Government can respond swiftly to the referendum results. As I shall explain, it does not prohibit legal challenge where there has been some form of misconduct over the referendum count. The clause's purpose is the same as that behind the equivalent clauses in the Referendum Act 1975, the Scotland Act 1978, the Wales Act 1978 and the Referendums (Scotland and Wales) Act 1997. There is a strong precedent for the clause in previous legislation.

The clause is designed to prevent any frivolous challenges to the counting of votes or ballot papers, but we recognise that the Bill does not amount to an absolute bar on legal proceedings as the courts may construe clause 6 as not ousting their jurisdiction in appropriate cases.

It must be obvious to the hon. Gentleman, who has recently come into the Chamber, that raising a question about the validity of half a dozen votes in a referendum, where the outcome had been decided by a majority of tens of thousands or hundreds of thousands and where six votes would have no effect on the conclusion of the referendum, would be a frivolous challenge. It is right and proper that public money should not be wasted in pursuit of frivolous challenges.

This is an important point. The courts may construe clause 6 as not ousting their jurisdiction in appropriate cases, such as one involving a flagrant breach of the law by a counting officer in the conduct of the referendum. I assure all hon. Members that there is no question of the courts not being able to consider appropriate cases.

The hon. Member for Southwark, North and Bermondsey implied that there had been no debate on this issue in the other place when the Scotland and Wales referendum legislation was being considered there. The clause was fully debated in another place on stand part. The Lord Advocate spoke for the Government. Lord Lester of Herne Hill spoke for the hon. Gentleman's party. There was no vote at the end of that and the clause was accepted.

We recognise that the courts are rightly jealous of their jurisdiction and carefully examine clauses that seek to oust their powers. I am advised by Law Officers that there is a substantial body of case law concerning the proper interpretation of such statutory provisions. Should any legal proceedings be brought challenging the actions of the chief counting officer or a counting officer, it will be for the court, in accordance with case law and the particular circumstances of the case, to decide whether a challenge could be entertained in the light of clause 6.

I am encouraged by what the Minister says. Just for the avoidance of doubt, I did not suggest that there was no debate on the other Bill; only that there was no debate here. I put to the Minister the pertinent question. I share the concern and endorse the view of the hon. Member for Croydon, South (Mr. Ottaway). Let us take a case parallel to the by-election case. Let us say that a referendum had been decided by a majority of two and there were 55 unmarked papers—it is the best case that we can give because it really happened. Is the Minister saying that his legal advice is that there will be nothing to preclude a challenge by someone who wants to argue that the referendum result was wrong and that, had the papers been included, it would have gone the other way?

The important point, which I hope that the hon. Gentleman will recognise, is that it will be for the courts to reach a view on whether they should entertain such an application. They would reach judgment as to whether in practice clause 6 should apply, or whether it should not because it would be wrong for it to oust their jurisdiction. That is the crucial consideration and I hope that that gives the hon. Gentleman the assurance that he is looking for.

If that is the case and the law, I accept that. In that case, the clause is slightly odd because an ordinary lay person or anyone else who reads an Act that says

"No court shall entertain any proceedings"
and is then told that the courts can entertain them if they want to, will think that this is not the clearest legislation in the world. They might regard it even as misleading.

It will not be for the first time in this place that we encounter such difficulty with the phrasing of legislation. When first considering the clause, I expressed some concerns on that ground, but I am satisfied that this is a proper provision, which is designed to prevent frivolous challenges, while not preventing a genuine challenge.

The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) has raised an important point. He gave the figures for Winchester, and the Minister rightly said that this will be a matter for the court to decide, but the court will pick up the Bill, which by then will be an Act, read

"No court shall entertain any proceedings"
and decide that it cannot hear the case, effectively saying that legal proceedings will not happen.

As I said earlier, there is a substantial body of case law concerning the interpretation of such provisions and I am advised, by people in a far better position than I to understand it, that the clause will not prevent a court from entertaining a case, where it believes that it is right and proper to do so.

The hon. Member for Croydon, South (Mr. Ottaway) mentioned New York. I do not think that the New York example is helpful in this respect. During my visit to New York, I was somewhat startled, during a discussion with the city attorney, to be told that his office contains several hundred employees who deal with outstanding lawsuits relating to the city of New York. I believe that the figure quoted was 160,000. That shows the litigiousness of the American people, which I hope will not be a precedent in this country.

I hope that I have satisfied the Committee that the clause is a safeguard to prevent frivolous litigation. It does not cut across fundamental rights.

The Minister has gone a considerable way. He has been honest and straightforward in saying that he had concerns when he first considered the clause, but he said, "Do not worry. The powers of the courts are such that they can still consider proceedings." I should be grateful if he could give just some examples of how the words "any proceedings" can be nullified by court action. If courts cannot consider any proceedings, how can they consider proceedings at all?

I regret having given way to the hon. Gentleman, as I have already said that this matter has been considered in the context of several previous Acts—in 1975, in 1978 and earlier this year. Those people who are far better qualified than I to consider these matters are satisfied that the clause does not oust the courts' jurisdiction in serious matters. That is the crucial consideration. We are providing a safeguard against frivolous litigation. We are basing it on the precedents that have been brought into law with all previous recent referendums. On that basis, I support the clause.

Question put and agreed to.

Clause 6 ordered to stand part of the Bill.