CONDUCT OF REFERENDUMS

HC Deb 16 February 2000 vol 344 cc1064-72 .—(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—

1. (a) the chairman of the Commission, or
2. (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—

1. (a) the number of ballot papers counted by him, and
2. (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—

1. (a) the total number of ballot papers counted, and
2. (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—

1. (a) shall be the Chief Counting Officer for the referendum if it is held only in Northern Ireland, and
2. (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—

1. (a) "relevant area in Great Britain" means any of the following—
   1. (i) a district in England or a London borough,
   2. (ii) the City of London (including the Inner and Middle Temples), the Isle of Wight or the Isles of Scilly,
   3. (iii) a local government area in Scotland, or
   4. (iv) a county or county borough in Wales,
   where it is comprised in the referendum area;
2. (b) "the local authority"—
1. (i) in the case of an area falling within paragraph (a)(i), (iii) or (iv), means the council for that area, and
2. (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;
3. (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).'.—[Mike O'Brien.]

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. Hogg

rose—

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 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?

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: 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.

Where is the reference in new clause 2 to the power of the House? There is very real concern on this side of the Committee that, at the end of the Committee proceedings, the Secretary of State is taking to himself unfettered, unrestricted powers. Although I do not for a moment seek to impugn the Minister's good intention, his explanation did not go anywhere near far enough to convince us that the new clause is benign. Indeed, we consider it malign and we are very worried about it. Unless he can give us some powerful promises and assurances, we will certainly want to divide the Committee on it.

Mr. Swayne

I find new clause 2 absolutely outrageous. We are at the end of the Committee stage, having discussed the ins and outs of the Bill, and we discover that notwithstanding all that we have said, the Secretary of State can do as he pleases and make up the rules as he goes along. The Minister says that the new clause is benign. Has it occurred to him that the Secretaries of State who follow may not be benign?

We are dealing here with the conduct of referendums. Has the Minister studied the conduct of the referendums as used by dictators in the 1930s? Referendums are tools of tyranny in the wrong hands. What self-respecting Parliament hands such wide-ranging order-making powers to Ministers, however benign they might be—like a benign tumour perhaps?

Subsection (2)(a) says that the Secretary of State may make an order to make provision for the creation of offences". Perhaps one of the most awe-inspiring things that we do in this place is to create offences that may result in the imprisonment of some of our constituents. A Parliament should think long and carefully about that, but we are not prepared to think about it at all; we are prepared to hand the powers to a Minister.

What sort of Parliament would pass this new clause? My hon. Friend the Member for South Staffordshire (Sir P. Cormack) said that it is a Henry VIII clause; it is in fact an Attila the Hun clause.

Mr. Hogg

I support the remarks of my hon. Friend the Member for New Forest, West (Mr. Swayne). New clause 2 is indeed far reaching. It does not matter much to me whether it is an Attila the Hun clause or a Henry VIII clause, but it is certainly not a clause that the House should support.

We need to analyse the new clause, bearing in mind the fact that it must be read in the context of clause 142. The new clause enables the Secretary of State to do at least three things. First, in the context of referendums, it enables him to create offences that, by definition, have a penalty attached, which will be either a fine, a term of imprisonment or a period of disqualification and may incur more than one of those penalties. The new clause enables the Secretary of State to create offences without seeking the consent of the House.

Dr. Julian Lewis

Is my right hon. and learned Friend suggesting that the Government are pretending not only to be tough on crime and tough on the causes of crime, but tough in the creation of new crimes?

Mr. Hogg

Indeed; the Government do not intend to consult the House.

Secondly, the new clause enables the Secretary of State not only to create new offences, but to apply to the referendum law any other enactment that he chooses. He can fish a provision from another statute and apply it to the law on referendums without coming to the House. That is a bizarre proposition.

Thirdly—this is even more bizarre, especially in a time of devolution—the new clause enables the Secretary of State by order to apply or disapply the law as it is contained in the Bill differentially as between the various parts of the United Kingdom. We can therefore have different systems of law applying to different parts of the UK that are promulgated by law at the behest of the Secretary of State. All that is done by order—and by the negative procedure, as clause 142 states. In other words, none of the things that I have described has to come before the House.

I used Henry VIII clauses as a Minister—of course I did—and the Government of whom I was a member used them over many years, but that does not mean that it is right to do so. We should be very chary about using such clauses. This one is so far reaching that it is best moved by the cardinal himself. I rather expect in another place the Lord Chancellor to move it. It is so far reaching that I hope that it is unacceptable to any democrat.

12 midnight

Mr. Stephen O'Brien

My hon. Friend the Member for South Staffordshire (Sir P. Cormack) mentioned Henry VIII, who famously said to his wives, "I shan't be keeping you long." I shall not be keeping you long, Mr. Lord.

The Minister was generous enough about my speech on clause 111 and schedule 13 to accept that, in certain respects, my arguments had validity and to say that he would be looking into them and would write to me. I hope that he will be equally open minded on this matter. He will recall that the basis of those arguments was ensuring the democratic legitimacy of provisions, particularly those on referendums. If referendums are for anything, they are to confer the democratic legitimacy of the populace on measures that affect the whole country. Therefore, new clause 2 must go to the very heart of democratic legitimacy, especially in relation to referendums.

Under new clause 2, the Secretary of State is allowed to reserve for himself the powers to set rules. As a Minister of the Crown, he is bound to have an interest in the outcome of a referendum. Therefore, he would be setting the rules for a game in which he had an interest whether he won or lost, and whatever side of the argument he took. That is why it was fair of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) to say that, although most Governments have habitually used Henry VIII clauses, there is a very real reason why it is not appropriate to do so in this case. The new clause should not be agreed.

Mr. Nicholas Winterton

The Minister described new clause 2 as benign. I rise to speak briefly because I want to know how he can describe it so. It has been said from the Opposition Benches that the new clause is a Henry VIII provision, and the one thing that one cannot say about Henry VIII is that he was benign.

Bearing in mind what my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) and other hon. Friends have said, I am sure that, in seeking to give me his definition of "benign" in his winding-up speech, the Minister will accept that the new clause is draconian. It gives the Secretary of State very wide powers.

Mr. Hayes

Perhaps the Minister confuses benign with vague. It is probably true that the more specific the clauses, the more benign they are; the more vague they are, the less benign they are. Because the new clause is so wide ranging, it is anything but benign. Vagueness is no excuse for accuracy in defining what Ministers can and cannot do under this Bill or any other legislation.

Mr. Winterton

I am not sure that I can answer that point. I am hoping that the Minister will deal with my hon. Friend's intervention in his winding-up speech. I agree with the views expressed by my hon. Friend, as I do with those expressed by my fellow Cheshire Member of Parliament, my hon. Friend the Member for Eddisbury (Mr. O'Brien), who in a brief speech made some important points.

New clause 2 is surely a draconian, all-enveloping provision, which gives substantial powers to the Secretary of State. Can the Minister justify his remarks that the clause is not that important and is benign? This matter is important, and the House deserves a proper and full explanation.

The Second Deputy Chairman

The Question is, That the clause be read a Second time—

Sir Patrick Cormack

Are we to take it, Mr. Lord, that the Minister, having heard the strong objections from the Opposition—

The Second Deputy Chairman

Order. The Minister gave no indication that he wished to address the House.

Sir Patrick Cormack

In that case, Mr. Lord, I shall say a few words. That is contemptuous treatment of the House of Commons. Several extremely powerful points were made by the Opposition.

The new clause is utterly unacceptable. The Secretary of State would take to himself wide-ranging powers when, as we have heard, in a referendum all the dice are loaded in favour of the Government of the day.

In a genuine fit of repentance, my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) explained how wrong such Henry VIII clauses are. There is nothing worse than for the Government to take the powers of a Henry VIII clause when dealing with a referendum. We are utterly opposed to the new clause, and we are, frankly, disgusted that the Minister is not prepared to answer the debate. We want to press the motion to a Division.

Mr. Hogg

I support my hon. Friend. On any view of the matter, the new clause gives the Secretary of State the power to create new offences and to apply the law differentially throughout the United Kingdom. Whether that should be done by affirmative resolution or negative resolution or be written into the Bill is a matter for legitimate debate. The Opposition have urged a certain point of view. It is a disgrace that those on the Government Front Bench have not sought to respond to those points. It is a contempt of Parliament.

Mr. Mike O'Brien

It is inappropriate that I have failed to address the important point raised by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). I understand that the usual channels have had their discussions about the length of the debate. Hon. Members in all parts of the House will understand that some hon. Members want to go home. One can understand that. [Interruption.]

However, let me address the point rightly raised by the right hon. and learned Gentleman, which is relevant. He suggested that the measure could be introduced under the negative resolution. The precedent is that it should be done by affirmative resolution. We need to consider the right hon. and learned Gentleman's point. It is my view that the affirmative resolution procedure should properly be used, but I will examine the matter.

The Second Deputy Chairman

We are dealing with new clause 1. The Question is—

Sir Michael Spicer

rose

The Second Deputy Chairman

I call Sir Michael Spicer.

Sir Michael Spicer

There is one point that I want to raise with the Minister. I pointed out in an intervention that the new clause gives overriding powers to the Secretary of State. The Minister said that the Bill contained safeguards against that. The issue has arisen late in the day, and overrides everything else in the Bill. It is all-inclusive and all-embracing. The Minister must answer the point. He cannot simply say that there are safeguards in the Bill. The new clause is crucial, which is probably why it was introduced so late.

Mr. O'Brien

The hon. Gentleman is wrong. That is nonsense.

Mr. Paterson

This must be one of the lowest points in this Parliament. [Interruption.] It is 12.10 am—

Mr. Joe Ashton (Bassetlaw)

On a point of order, Mr. Lord. On at least two occasions, you have risen to your feet to put the Question, and then withdrawn because an Opposition Member stood up. The will of the House is to put the Question now.

The Second Deputy Chairman

Let me be clear: I have not completely put the Question. We are in Committee, and hon. Members can speak as often as they choose. It is important that we hear hon. Members who want to contribute.

Mr. Paterson

My hon. Friend the Member for South Staffordshire (Sir P. Cormack) and my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) posed some pertinent questions. Notwithstanding clause 142, which gives the Home Secretary extraordinarily wide powers, we have not received a proper explanation of why, without consulting Parliament, the Home Secretary, who will not be impartial in a referendum campaign, should be given such wide powers in new clause 2.

Secondly, under new clause 2, the Home Secretary will be able to choose different provisions for different parts of the United Kingdom. That is extraordinary and unique. I have never seen such a provision before. It is a charter for gerrymandering the referendum and a power of which Mr. Mugabe could only dream.

I know that hon. Members want to go to beddy-byes, but we want straight answers to our pertinent questions. The provision is a constitutional outrage and the Minister should answer the questions before we vote.

Question put and agreed to.

Clause read a Second time, and added to the Bill.