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Lord Mackay of Drumadoon: I seek to oppose the Question that Clause 4 should stand part of the Bill. The

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clause seeks to prevent any court entertaining any form of legal proceedings questioning either the number of ballot papers counted or votes cast as certified after a referendum by a chief counting officer or one of the counting officers.

This matter was dealt with at Second Reading by the noble Lord, Lord Sewel. He explained (at col. 1115 of the Official Report) that the purpose of the clause was to provide a safeguard against the opponents of devolution trying to delay implementation of the Government's proposals following a "Yes/yes" vote by calling into question the mandate provided by the referendum through spurious, but lengthy, litigation. He explained to the House that the clause had precedent in the legislation dealing with both the 1975 referendum and the 1979 referendums.

I shall deal, first, with the issue of precedent. I am aware of the statutory provisions that lie behind what the noble Lord, Lord Sewel, said at Second Reading. However, the situation is different as far as concerns those previous referendums. The question that arose in the 1975 referendum was whether the United Kingdom should remain a member of the European Economic Community. The Government would have been required to withdraw the United Kingdom from the Community had the vote gone against them on that occasion. The 1979 referendums were to deal with bringing into force two Acts of Parliament that had already been passed. The provisions of those Acts required that before any orders bringing individual sections into force were implemented the necessary votes had to be achieved in the Scottish and Welsh referendums.

The situation is different here because, as noble Lords on the Front Bench have stressed on more than one occasion, the referendums are to be of an advisory nature and there will be nothing to prevent the Government presenting a Bill or two Bills to Parliament, assuming they receive votes in support at the referendums, even if some form of legal proceedings were forthcoming. The existence of legal proceedings would not require the Bills to be delayed or indeed any part of the parliamentary process to be delayed.

Those noble Lords who have considered the terms of the draft orders for the holding of the referendums which are now to be incorporated into the Bill in the light of the concession made on an earlier Committee day will appreciate that only certain of the provisions are to be included. Some are not. Perhaps I may take, as an example, the position as to the counting of votes. The draft orders provide that rule 44 dealing with the attendance of people at the counting of votes will allow observers to be present. But they will be in a different position from the candidates, the election agents and the counting agents who attend at the count of a parliamentary or local election in that they will have a right only to observe. They will have no right to challenge what is going on in the sense of objecting to the rejection of a spoilt ballot paper and, in particular, will have no right to seek a recount. As there have been amendments dealing with the declaration of specific results for specific areas and constituencies, the need for

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a recount may arise. It is just as likely to do so in a referendum as it is in a parliamentary election if those provisions are given effect to.

What the orders do not do is to incorporate into the procedures for running the referendums--one assumes therefore that it is the Government's proposal that they should not come into a new schedule--the proceedings which allow election petitions to be presented to the court seeking to challenge the manner in which a count has been conducted and, in particular, seeking to challenge the rejection of individual ballot papers. In addition, there is a possibility that people will seek to vote in the referendums, having got their names registered on the electoral roll, when they were not entitled to do so. There is the possibility that they may be subjected to some form of illegal pressure, whether financial or otherwise, to vote or not to vote; and, if they are to vote, to vote in a particular way. That is why Sections 113, 114 and 115 of the Representation of the People Act are incorporated into the proceedings that are to be followed by the draft orders as we now have them. Accordingly, there is a possibility that grounds will exist for challenging either the fact that individual voters have voted when they were not entitled to do so or the validity or otherwise of the decision to reject a particular vote as amounting to a spoilt vote.

At the present time the clause would exclude any possibility of challenging these matters in court. It would be difficult--I fully accept this--to incorporate into the proposed schedule a new procedure for such court proceedings but it would not be impossible to do so. In so far as the Government seek to obtain from the referendums some support which will provide greater legitimacy for their proposals on devolution, I would invite them to consider why court proceedings should be excluded altogether. In the absence of a provision for challenging the rejection of individual ballot papers and in the absence of the possibility of people being prosecuted for the offences we discussed on a previous occasion, there are grounds for suggesting that the clause should not stand part of the Bill.

Baroness Strange: I should like to support this amendment, having already spoken on this particular point at Second Reading. I will be brief, and spare your Lordships, particularly as it is important to get this Bill through our House in time to get our buckets and spades for our Summer Recess, whenever that may be.

I am certainly in favour of a referendum as I feel it is important that everyone in Scotland has a say in how much government they are prepared to pay for. And, of course, if we have a parliament in Edinburgh and a parliament in London with two lots of Scottish Members of Parliament, we will certainly be paying twice--and twice for the same thing. And I am certainly Scottish enough not to want that.

However, the point here is perfectly clear and perfectly straightforward, and nothing to do with the idea of devolution as such at all. It is simply concerned with the fairness of the referendum. Of course no one wants niggling court cases going on for ever about nothing. But if the counting officer is appointed by the Secretary of State, and is answerable only to the

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Secretary of State and to no other court of justice in the land, it seems to me to carry more than a whiff of dictatorship. It is the type of election one might possibly expect, and would kick against, in a third world country. But not in Britain, which is a democracy and an example to all. The Scots voted overwhelmingly for a Labour government, although a lot of them voted for Conservatives and some also for the Liberal Democrats and for Scottish nationalists. That is perfectly plain. What is not plain is whether the Scots people really want an extra parliament. That is what the referendum is to find out. That is why it is so important for both the Opposition and the Government, and for everyone in Scotland, that the procedure is fair and just and is seen to be fair and just. That is why I support the amendment.

Lord Hardie: As the noble and learned Lord, Lord Mackay of Drumadoon, observed, this clause has a basis in precedent, first, in 1975 and then in 1978. In the Referendum Act 1975, the Scotland Act 1978 and the Wales Act of the same year, there are provisions which are of similar effect although not identical in terms.

I took the trouble to go back to look at the Committee stages of each of those Acts to see whether Members of this House had raised the question of the appropriateness of having such a provision in the Acts. My research indicates that as regards what became the Referendum Act 1975, at Committee stage there were only minor drafting amendments to the clause provided on behalf of the Government. No further amendments were provided. As the Scotland Bill was going through your Lordships' House, at Committee stage general amendments were proposed but no one challenged the appropriateness of the exclusion clause. Similarly, as regards the Wales Bill, there were two amendments, one of which was agreed and the other withdrawn. Neither related to this issue.

I also went back to the Second Reading debate on the Referendum Bill in this House. In dealing with Clause 4, the same number as we are considering, the then Lord Chancellor, Lord Elwyn-Jones, said:

    "I come now to Clause 4. Since its introduction this has been amended so as to restrict the original rather sweeping exemptions from proceedings in a court of law. The Bill now provides only that the results of the referendum may not be challenged in the courts to force a recount, which will be a matter for the Counting Officer, or obtain a fresh poll. We believe this clause is vital to prevent frivolous challenges which would delay reaching a decision on membership, a delay which could have serious economic disadvantages. We consider the proposed limited exclusion of challenge through the courts to be essential. Your Lordships will know that any allegations against the Government about the handling of the poll can be pursued in Parliament. The clause does not, of course, exempt anyone accused of an offence under the relevant Representation of the People Act, or under the Order made under this Act, from the normal legal processes".--[Official Report, 29/4/75; cols. 1194-5.]

That was observed by the noble and learned Lord, Lord Mackay of Drumadoon, in his speech tonight. He accepted that clearly anyone who voted who was not entitled to do so would be liable to prosecution. The purpose of the clause is the same as that behind the equivalent clauses in the Referendum Act 1975 and the Scotland and Wales Acts of 1978. It was to prevent any

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challenges relating to the counting of votes or ballot papers. But it does not exclude any legal proceedings in relation to the referendum. As I have observed, people may be liable to criminal prosecution if they vote when they are not entitled to.

Furthermore, the courts, as Members of the Committee will be aware, are very jealous of their jurisdiction over clauses which seek to oust their powers. There is a substantial body of case law concerning the proper interpretation of such statutory provisions. Should any legal proceedings be brought challenging the legitimacy of the actings of the chief counting officer or of a local counting officer, it would be for the court, in accordance with that case law and in the circumstances of the particular case, to decide whether that challenge could be entertained in the light of Clause 4. For example, if it can be shown that a counting officer failed to carry out his statutory duties or had acted in any other way which was seen to be ultra vires, then the courts would intervene despite the terms of this clause.

With those assurances, I trust that Members of the Committee will agree that Clause 4 does no more than provide a valuable protection to ensure that we can act quickly in response to the results of the referendum. Perhaps I may take the point made by the noble and learned Lord, Lord Mackay of Drumadoon. I will be very surprised if the existence of proceedings in the courts challenging the referendum would have no effect on the introduction of the devolution Bill in either House. I would be astonished if in this House your Lordships did not raise the point that the whole question of the referendum and its outcome was being challenged. I am not giving any undertaking, but that is clearly a point that would be raised in debate. I am sure that the Committee would not fail to notice the existence of such proceedings.

In short, I invite the Committee to follow the precedent of the previous legislation that this House has not seen fit to challenge the appropriateness of similar provisions in the past. There have been referendums following on legislation containing such provisions and they appear to have worked well. I do not believe the fact that this is a pre-legislative referendum as opposed to a post-legislative referendum makes any difference. I urge Members of the Committee to withdraw their opposition to Clause 4.

7.15 p.m.

Lord Lester of Herne Hill: Before the noble and learned Lord sits down, can he confirm that Clause 4 does not seek in any way to exclude the principles of judicial review? I believe that follows from what he said. All that it does is immunise findings of fact by the chief counting officer so that if he or a counting officer were to act illegally beyond the four corners of statute or were to take leave of his or her senses by acting in an irrational way, then judicial review would be fully preserved and the courts would be likely to construe Clause 4 narrowly and not in any way seek to oust the

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jurisdiction of courts. If the noble and learned Lord agrees, does it follow that any suggestion of a whiff of dictatorship is entirely inappropriate and unjustified?

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