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The Duke of Montrose: My Lords, I listened to what the Minister said. I presume that he realises that we have not in any way questioned the timescale for the reviews of parliamentary constituencies being limited to eight to 12 years. We are saying that when the Electoral Commission thinks that there should be a review, it should take place within a certain limited time.
The Minister emphasised that such deadlines are not contained in any of the areas in which the various Boundary Committees will work. It is because of that that we have raised the matter at this time, because it will be felt equally by the public in all the other regions in which Boundary Committees will work.
I suppose that we have the power if we wish to put such a provision in a Bill for the Scottish constituencies, because it would make the people who have to operate the provisions for Scotland far more comfortable. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Duke of Montrose moved Amendment No. 3:
The noble Duke said: My Lords, this matter was dealt with to some extent in the letter that the Minister sent me. It probes the drafting of paragraph 6(8) which refers to the validity of Orders in Council. I raised the issue in Committee. When I challenged the Minister about what "purporting to be" meant, he commented:
"I will check it, but I assume that the phrase takes its natural meaning from the Bill: 'seeming to mean' and 'appearing to mean'.—[Official Report, 21/6/04; col. 1097.]
However, in his letter the Minister brings out the point that "purporting to be" is meant to apply if the order is challenged. There is nothing else in the Bill that deals with the challenging of Orders in Council. Perhaps we are supposed to take that interpretation, but our concern is that "purporting" has the connotation of something appearing to be what it is not. I mentioned in Committee the possibility of a counterfeit order. As paragraph 6(8) is drafted, any counterfeit order could not have its validity called into question in legal proceedings.
According to paragraph 6(8), the Order in Council being challenged would have been approved by a resolution of each House of Parliament and so would already have been open to being challenged there. If the Minister would also like to include in the text, "and purported to have been approved by both Houses of Parliament", that would seem more logical.
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I still do not see what case can be made for including the words "purporting to be" in the Bill because the order by that time has been approved. If we remove those words the Bill will be much clearer and easier to interpret. I beg to move.
The Earl of Mar and Kellie: My Lords, the noble Duke's amendment implies that "purporting to be" is an unhelpful expression. I believe that it belongs to the same context as the expressions "pretending to the throne" or "a pretender". The old meaning was clear: the person had a good claim to the throne. Therefore, the phrase "purporting to be" may be rather quaint but it means "is rightfully derived from".
Baroness Carnegy of Lour: My Lords, I did see the letter. I bumped into my noble friend and he very kindly gave me a copy of it. I was fascinated by the part that covered this subject because it almost confirmed what we were saying from this side of the House about the word "purporting". It seems that that word must be used because, if a Minister has a shot at making an order and it is challenged and falls, it is an order that never was. Therefore, it is all right to say that it was "purporting to be" an order. It may be an order which turns into an order. That seems to be what this is all about. I was fascinated by this matter. I have always wondered what the word "purporting" means and that seems to be it—it allows for an order to fall. Will the Minister confirm that that is correct?
Lord Evans of Temple Guiting: My Lords, before I speak to Amendment No. 3 moved by the noble Duke, I meant to say that we would arrange for the noble Lord, Lord Gray, to receive a copy of the letter from my noble friend Lord Filkin. A copy went to the noble Duke, the Duke of Montrose, and to the noble Earl, Lord Mar and Kellie, and a copy was placed in the House Library. But I think that it will be best if tomorrow we arrange for the letter to be sent to everyone who has taken part in this debate. If we need to discuss certain issues further, we shall be happy to do so outside the Chamber or at the next stage of the Bill.
The words "purporting to be made" have caused some confusion. It took two discussions with officials and another one with a QC for me to understand what it meant. I always thought that "purporting" meant pretending or whatever. But I think that we have to consider this matter in a legal context. The word is being used in this clause but it is used in many orders and it has an accepted definition.
I shall try to respond to the concern raised in Committee and again today about the inclusion of terminology which refers to an Order in Council "purporting to be" made. The noble Duke argued that either an order had been made under this schedule or it had not. He raised, as he has done again today, the appalling prospect of "counterfeit" orders which could not be called into question or challenged.
I hope that I can reassure the noble Duke and other noble Lords that there is little or no chance of such a fraudulent or malicious order being passed by this
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House. If Parliament were ever to pass an order which was in some way wrong, it would always be open to the Government and Parliament to undo that error.
However, that is not the background to this provision. The noble Duke received a letter in which my noble friend Lord Filkin explained why Orders in Council were described as "purporting to be" made. For the benefit of those who have not seen the letter, I shall repeat the reason that it sets out.
As my noble friend indicated, the purpose of a challenge to the validity of an order would be to have it declared invalid. If there were claimed to be an error or some procedural defect in the making of an order, it could be argued that, as a matter of law, the order had not been made and was legally invalid. A tiny error could mean that the order was legally invalid. Therefore, if the amendment were carried, such an order would not be protected from court scrutiny as the amendment would protect only orders. It could be argued that legally the instrument being challenged was not an order.
As orders that have been approved in draft by resolution of each House of Parliament should be above question in legal proceedings, the draftsman is required to protect documents that purport to be an order to prevent this argument being used to introduce scrutiny in legal proceedings. Orders are therefore all described as purporting to be made.
If this phrase were not included, it would open the Order in Council up to—possibly mischievous—legal proceedings in the courts in some circumstances. This could have serious consequences for the conduct of future elections while the matter remained under dispute. The intention therefore is to prohibit such a challenge where the order has been approved by Parliament.
But as I said earlier, if in the very unlikely event that Parliament should ever become concerned about any aspect of an order, then of course we could look into this and rectify the matter. That would be for Parliament to decide upon and not the courts.
I hope that this explanation is clear. I would like to stress that this word is not being used simply in this Bill; it is used with all orders. I hope that the noble Duke, the Duke of Montrose, will withdraw his amendment.
The Duke of Montrose: My Lords, I thank the noble Lord for that reply.
I am sorry if we have bored any lawyers who are present but I found it absolutely fascinating. The noble Lord has answered the misunderstanding that we found in the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Duke of Montrose moved Amendment No. 4:
Page 10, line 2, leave out from beginning to "aim" in line 3 and insert "It shall not be the duty of the Electoral Commission or (as the case may be) a Boundary Committee to"
The noble Duke said: My Lords, I can be extremely brief with this final amendment. Again, the Minister has addressed this matter in his letter.
Throughout the Committee stage of this Bill when we queried some of the points of detail in Schedule 1, the Minister returned again and again to the sanctity of the Parliamentary Constituency Act 1986. Interestingly, he said:
"The electoral arrangements and the ways in which the boundaries of constituencies are reviewed separate from government—dealt with in the Parliamentary Constituencies Act—should not be changed for one part of the United Kingdom on the back of a specific piece of legislation, even when it is about such an important part of the United Kingdom—namely, Scotland".—[Official Report, 21/6/04; col. 1096.]
In reference to the rules which we have in Schedule 1, I now understand that they are based on the same rules contained in the Parliamentary Constituencies Act. Rule 2(2) mirrors rule 5 of that former Act and rule 3 mirrors rule 6. For rule 4, however, the idea is similar but the drafting of the rule differs from that of rule 7 in the 1986 Act.
Our amendment would change the drafting of rule 4 to make it identical to rule 7 of the 1986 Act. In his letter the Minister refers to the change as being in the modern style. Perhaps he could explain to us what difference the variation in the drafting makes? Is there an aversion in the modern style to the wording that mentions the "duty" of the Electoral Commission? I almost expect that soon the wording would include the word "choice" rather than "duty". I beg to move.
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