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Mr. Mike O'Brien: I hope that the right hon. and learned Gentleman has misread the clause; it is not intended to do what he describes. I will consider the point that he raises and write to him about it. If it is necessary to amend the clause because it would have the effect that he claims, we shall consider doing so.
Question put and agreed to.
Clause 120 ordered to stand part of the Bill.
Brought up, and read the First time.
Mr. Mike O'Brien:
I beg to move, That the clause be read a Second time.
The Second Deputy Chairman of Ways and Means (Mr. Michael Lord):
With this it will be convenient to discuss the following: Government new clause 2--Orders regulating conduct of referendums.
Government amendment No. 9.
Mr. O'Brien:
I understand that the hon. Member for South Staffordshire (Sir P. Cormack) wants to make some points on the new clauses and the amendment, so I shall introduce them briefly.
The two new clauses contain procedural provisions for the administration of a referendum. Provision for major referendums, such as those in Scotland and Wales in 1997, has customarily been made in separate Bills, but those Bills contained several administrative provisions that have, by now, become standard.
It is not the intention that the Bill should replace the need for specific legislation to authorise the holding of a referendum on a particular issue; we made that clear earlier in our proceedings. However, the consideration of
such legislation should focus on the key issues: whether it is right to hold a referendum on the particular issue and, if so, when it should be held and what the question should be. By covering the nuts and bolts of a referendum in the Bill, we can ensure that future Parliaments can concentrate on the big picture.
New clause 1 designates the chairman of the Electoral Commission as the chief counting officer in any referendum to which part VII of the Bill applies. There is one exception to that rule: when a referendum is held only in Northern Ireland, the chief electoral officer is designated as the chief counting officer.
The clause also empowers the chief counting officer to appoint counting officers in each local government area where the referendum is being held. As a result, votes will be counted and declared at the level of a district council or a London borough in England, and by local authority area in Scotland and Wales. That follows the practice in referendums that have been held to date. There would be one count and one declaration in Northern Ireland.
I understand that the main concern of the hon. Member for South Staffordshire is new clause 2. The purpose of that clause is to enable the provisions of the Representation of the People Acts and regulations to be applied to any referendum. The clause mirrors similar order-making powers in section 4 of the Greater London Authority (Referendum) Act 1998--I have a copy of the Act before me.
Mr. O'Brien:
I will give way to the right hon. and learned Gentleman in a moment.
Section 1 of the Referendum Act 1975, schedule 12 to the Wales Act 1978 and schedule 17 to the Scotland Act 1978 contain similar provisions. The clause is entirely benign, with no hidden agenda. I hope that the hon. Member for South Staffordshire will accept that that is our intention. The Secretary of State will have to consult the Electoral Commission before making any order under the provision, and the order will have to come before the House.
Mr. Hogg:
The Minister will know that new clause 2 contains a power to create offences and to apply and disapply other enactments to the provision. Is the order-making power covered entirely by clause 142? As I understand it in this context, clause 142 uses the negative, not the affirmative, procedure. Will he, therefore, confirm that the affirmative procedure is not being applied to the creation of offences?
Mr. O'Brien:
The creation of some offences will already be covered in the representation of the people legislation. In effect, all that we are doing is importing into a referendum campaign provisions that we all accept for general election campaigns. I do not think that there is any particular problem here. If we were seeking to go further, the Committee would become aware of that and I expect that it would be a matter of considerable controversy.
Although in practice the right hon. and learned Gentleman may have a point--I certainly undertake to consider it--in reality the provision will not cause any great difficulty. The matters about which he has expressed
concern are the sorts of provisions that we would deal with on a day-to-day basis in any local government election, never mind a national election or a referendum.
Sir Michael Spicer:
Will the Minister give way?
Mr. O'Brien:
I shall give way once more, and that will be it.
Sir Michael Spicer:
Whether new clause 2 is benign in the way that the Minister described depends on how one interprets words such as
Mr. O'Brien:
The hon. Gentleman knows perfectly well--we dealt with this point earlier in the debate--that there will be specific legislation on any national referendum campaign. We deal with such issues on a daily basis in relation to any general election. New clause 2 is entirely benign.
Sir Patrick Cormack:
The Minister is in his less emollient mood. A few moments ago, the Parliamentary Secretary, Privy Council Office, used his technique of gentle persuasion and sweet reason; now we have the staccato utterances of the Minister as he seeks to persuade us--without taking much trouble over doing so--that new clause 2 is benign. I direct my remarks to that new clause, because we have no quarrel with new clause 1.
New clause 2 has been called--and with some justification--a Henry VIII clause. Through it, unfettered powers can be taken by the Secretary of State. He can, by order, make certain provisions. As my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) said, the Secretary of State can dictate what offences have been created. The new clause gives him enormous power. There is not even much of a fig-leaf in subsection (4). It refers to the necessity to consult the commission, but the commission has no power of veto or real authority in this matter.
The Minister prayed in aid the Representation of the People Bill, but clause 11(4) of that Bill states:
.--(1) This section has effect in relation to any referendum to which this Part applies.
(2) There shall be a Chief Counting Officer for the referendum, who (subject to subsection (8)) shall be--
(a) the chairman of the Commission, or
(b) if the chairman of the Commission appoints some other person to act as Chief Counting Officer for the referendum, the person so appointed.
(3) The Chief Counting Officer for the referendum shall appoint a counting officer for each relevant area in Great Britain.
(4) The local authority in the case of each such area shall place the services of their officers at the disposal of the counting officer for the area for the purpose of assisting him in the discharge of his functions.
(5) Each counting officer shall, as respects the votes cast in the area for which he is appointed, certify--
(a) the number of ballot papers counted by him, and
(b) the number of votes cast in favour of each answer to a question asked in the referendum.
(6) The Chief Counting Officer shall certify--
(a) the total number of ballot papers counted, and
(b) the total number of votes cast in favour of each answer to a question asked in the referendum,
in the whole of the referendum area.
(7) Where two or more forms of ballot paper are used in the referendum, a separate number shall be certified under subsection (5)(a) or (6)(a) in relation to each form of ballot paper so used.
(8) Where the referendum is held in Northern Ireland, the Chief Electoral Officer for Northern Ireland--
(a) shall be the Chief Counting Officer for the referendum if it is held only in Northern Ireland, and
(b) in any other case shall be treated, for the purposes of subsection (5), as if he were a counting officer appointed under this section for the whole of Northern Ireland.
(9) In this section--
(a) "relevant area in Great Britain" means any of the following--
(i) a district in England or a London borough,
(ii) the City of London (including the Inner and Middle Temples), the Isle of Wight or the Isles of Scilly,
(iii) a local government area in Scotland, or
(iv) a county or county borough in Wales,
where it is comprised in the referendum area;
(b) "the local authority"--
(i) in the case of an area falling within paragraph (a)(i), (iii) or (iv), means the council for that area, and
(ii) in the case of an area falling within paragraph (a)(ii), means the Common Council of the City of London, the Council of the Isle of Wight or the Council of the Isles of Scilly, as the case may be;
(c) "the referendum area" means the parts or part of the United Kingdom, or (as the case may be) the region in England, throughout which the referendum is held as mentioned in section 95(1).'.--[Mr. Mike O'Brien.]
"regulating the conduct of referendums".
That phrase is all embracing, so will it cover how the question is set? What assurances can the Minister provide given that the words are in the new clause and are all-embracing?
"An order under subsection (1) shall be made by statutory instrument; and no such order shall be made unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament."
It would be nice for the Minister to listen to what I am saying. [Interruption.] The Government Whip should contain himself; he is getting terribly agitated and will only prolong the agony by so doing.
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