EXCLUSION OF LEGAL PROCEEDINGS (Hansard, 30 April 2003)

§ Mr. Leslie
I beg to move, That this House agrees with the Lords in the said amendment.

§ Mr. Deputy Speaker (Sir Alan Haselhurst)
With this, it will be convenient to deal with Lords amendments Nos. 21 and 22.

§ Mr. Leslie
After a long but very interesting debate on the previous amendment, it gives me enormous pleasure to have the opportunity to discuss in great detail, but fairly briefly I hope, the issues surrounding these Lords amendments, which relate to the circumstances for the exclusion of legal proceedings challenging the certification of a referendum or referendum results.
Amendments Nos. 20 and 21 are consequential on the introduction of a local referendum in areas with two tiers of local government, and it is right that the same provisions for legal challenge to a count should apply to 366 local referendums under the new clause 2 as well as to the regional assembly referendums under clause 1. These two amendments would achieve that. Amendment No. 22 represents a slightly more significant change rather than a consequential matter. I hope briefly to describe what that entails.
There has already been quite a lot of debate in both Houses on the terminology used in what is known as the ouster clause—clause 10—which would prevent frivolous legal moves that might delay a Government responding to the result of a referendum. We have always said, and this remains the case, that serious challenges would not be barred, but we have listened and responded carefully to the debates and queries on the wording and meaning of the so-called ouster clause, which were raised in Committee, during earlier proceedings in this House and in another place.
We feel that this amendment helps to clarify the matter. Legal challenges to the certification of referendum results will now be clearly allowable in two specific circumstances—if they are brought by a claim for judicial review, and if they are brought within six weeks of certification.
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The amendment was prompted in particular by questions about how third-party fraud might be handled if it occurred during a referendum process. What would happen if someone sought to issue a legal challenge to the certification of the result? We should draw a distinction between the processes involved in the counting officers' work and the actual certification process. Third-party fraud might not be considered to have occurred during the latter process. We felt that we should spell out the circumstances in which a legal challenge would be possible and might be necessary, and we have therefore specified both a time frame and a mechanism for such challenges.
The amendments make clear the circumstances in which legal proceedings could be excluded or allowed, and improve the Bill in a way recommended by both Houses. I hope that this House will accept them.

§ Mr. Hammond
This is a curious grouping. I can say that because I was advised by the Clerk last night that the Minister in charge, rather than Mr. Speaker, is responsible for grouping Lords amendments.
Lords amendments Nos. 20 and 21 extend to the proposed local authority referendum provisions already applying to the main referendum. We may have our differences about the Bill—indeed, we have aired them effectively this afternoon—but given that the House has already agreed to the earlier amendments, this must be seen as an uncontroversial proposal, ensuring some continuity of architecture.
Lords amendment No. 22 is more substantive. Of course these are only words, but I am grateful to the Minister in the other place for accepting the need to clarify the fact—it is, I think, no more than a clarification—that the exclusion of access to the courts was never intended to mean exclusion of the possibility of judicial review. Nevertheless, given the principle that Acts of Parliament should be plain speaking, it is surely sensible to include a specific reference to the availability to a member of the public, or an organisation, of access to the courts through judicial review.
367 As I probably say about 500 times during the consideration of every Bill, I am not a lawyer. I was, however, interested to see a specific reference to a period of six weeks for the bringing of a judicial review application. As a layman, I understood that hitherto the law had stated that judicial review applications must be brought as soon as practicable, and in any event within three months. A relatively recent appeal decision suggested that "as soon as practicable" would normally mean six weeks, in the absence of exceptional circumstances. The Bill, though, specifies six weeks, with no reference to exceptional circumstances. My interpretation of that is that an application brought seven weeks after the relevant date would automatically fail without such a reference.

§ Mr. John Taylor (Solihull)
Not least on the basis of my own experience, I urge my hon. Friend never to be deferential or apologetic about not being a lawyer. In a long career, I have encountered cases in which the lawyer knows the legal position exactly, but the layman knows that it does not matter.

§ Mr. Hammond
I am grateful to my hon. Friend for that pearl of wisdom; indeed, I am often grateful to him for such pearls.
Perhaps the Under-Secretary could explain to the House whether it is intended that this provision is a precedent-setting departure, and whether the judiciary is supposed to infer something from it in relation to judicial review in general. That is a genuine question of some importance, although I realise that the Under-Secretary may not want to answer it off the cuff. If he has no advice readily to hand, I should be grateful if he offered a commitment to write to me about it.

§ Mr. Edward Davey
I welcome these amendments, which were agreed by all sides in the other place. It is interesting to note that when we raised these issues in Committee, the Minister was not quite so happy. I should like to pay tribute to the hon. Member for Runnymede and Weybridge (Mr. Hammond), who tabled amendments in Committee. I had missed the point relating to judicial review when I scrutinised the Bill, and it was the hon. Gentleman who, with his razor-sharp analysis, raised it. I credit him for that, and I am glad that the issue was taken up in the other place.
When we debated the hon. Gentleman's amendments—I was in total agreement with them; indeed, I voted for them—it seemed odd to me that we were not allowing judicial review on an advisory referendum on the basis that it might hold matters up, given that the United States of America had had a judicial review into some hanging chads on which the future of the American presidency was determined. The Government were taking a rather odd position, therefore, in not allowing judicial review.
There was some debate as to whether judicial review was implicit, but as the hon. Gentleman has made clear, including such a provision in the Bill in plain English is a step forward, and I hope that future draftsmen of future Bills on related matters will learn from this experience. In conclusion, I offer my support for these amendments from the other place.

§ Mr. Leslie
I am sorry that I have to interrupt the love-in between the Liberal Democrats and the Conservative 368 party. I am of course more than happy to acknowledge the razor-sharp acumen of the hon. Member for Runnymede and Weybridge (Mr. Hammond), although not necessarily in respect of these amendments. Colleagues have told me that on the morning in question, the hon. Gentleman may have arrived in Committee a little late. I am not sure that that is true, so I shall check the relevant Hansard.
These changes are reasonable and add clarity to the circumstances in which legal proceedings should, or should not, be allowable. The reason for choosing the six-week period is specific to this case; it is not a general principle that we are seeking to establish. We feel that it strikes the right balance between allowing a challenge to take place, and giving the Government the opportunity to get on with implementing the outcome of any referendum. The hon. Member for Runnymede and Weybridge has spotted the normal rules in respect of judicial review for the three-month period, and the six-week period would certainly fall within that. But if there is anything to add to the comments that I have already made, I shall certainly endeavour to write to him. With those closing comments, I hope that the amendments can stand.