ELECTORAL CONFERENCE 2015

TIMOTHY STRAKER QC

Introduction

1.  Over the last few years I have been asked, on these occasions, to talk about recent developments in the law. On this occasion it is also appropriate to talk about prospective developments. This I am very happy to do. I should also make plain that I have been asked to take questions. Please, if you have any, ask them at any time. Do not worry about interrupting.

2.  I am always happy to attend these events, which have a real virtue in that there is a community of interest with a realisation amongst those who work in elections that the random hand of litigation can affect anyone concerned with running elections.

3.  Today, I am principally going to speak about the kind of electoral issues with which I have been concerned in the last year or so. I am also going to try and look forward to May, the General Election and beyond.

4.  The most important thing in looking forwards is to look backwards and ask whether you have started and are pursuing your preparations.

5.  Necessarily in the written text there is some repetition of what has been said or written before but issues do not slot neatly into calendar years. I have scheduled some text on the basis it might be useful.

6.  I proceed on the basis that at least some of the work undertaken may give a clue as to points of concern arising in respect of the multitude of elections we now endure or enjoy.

7.  At least two petitions were issued in May 2014. One concerned the election to Hackney and the other the election, held at the same time, to Tower Hamlets. The Hackney petition, in which I appeared for the Returning Officer with Sappho Dias, has concluded. The Tower Hamlets petition should start to be heard at the beginning of February 2015. It is likely to take six weeks. I am acting for the Returning Officer.

8.  Each of these petitions tells us something about the approach to be followed to elections generally and petitions in particular. They also reveal a problem with which the Law Commission is trying to grapple.

9.  In the Hackney petition a losing candidate brought as he was entitled to do a petition challenging the election. He did not suggest that any other candidate had done anything wrong but rather that the returning officer had done a number of things wrong including starting the count in the morning rather than at midnight. There was no technical basis, save a point on security for costs, to strike out his petition so that an election court had to be convened in Stoke Newington Town Hall.

10.  Ultimately no evidence was called by the Petitioner but the Commissioner properly required the Returning Officer to explain openly what had happened. This was done through my explaining what our evidence showed. It was a demonstration of preparation of the sort I expect and hope is underway for the general election.

11.  It was also preparation that was very well recorded. This made it easier than would have otherwise been the case to show the Commissioner that all had been done correctly.

Avoid election petitions

12.  I have mentioned before an election petition I once tried. I continue to mention because it still does not appear that the defect exposed has been corrected. This serves to show that any change in law or practice can take a long time. It also reveals that it can be difficult to extricate oneself from a petition. It also reveals a problem, as does the Hackney case, with which the Law Commission are trying to grapple.

13.  In the case I tried the petitioner decided rather than having a full blown trial to withdraw his petition.

14.  If you want to withdraw an election petition you need permission. This is because of the public interest in a petition. Thus, for many years it was provided as a matter of law that if someone was going to withdraw a petition someone else could step into his shoes. Consequently, the Election Petition Rules 1960 require that to withdraw a petition you have to advertise your application to withdraw and state that someone else can appear at court to ask, and, indeed, expect to take over the petition.

15.  The Election Petition Rules were made in 1960. However, many years later the Representation of the People Act 1983 was amended so as to prevent someone from taking over a petition. However, the Election Petition Rules were never changed. This was a living demonstration of the fact that we have manage to accumulate a variety of legislation some of which is not in harmony with itself, other legislation or modern times.

16.  The principal problem is that if you read the Ballot Act 1872 you are reading text with which you will be familiar as it is largely repeated in the Representation of the People Act 1983. However, our circumstances are now very different.

17.  At any rate I gave a judgment to the effect that it was entirely stupid to demand an advertisement under the 1960 Rules for something no longer legal under the 1983 Act. I also said that the Rules Committee of the High Court should urgently look at the 1960 rules so as to align them with the primary legislation. I suppose it is a vivid demonstration of judicial power that nothing yet appears to have happened and I most certainly have not told of anything.

18.  More seriously it shows that a petition is trying to do at least two things. One is to protect the public interest and the second, which is or may be entirely different, pursue a private interest, namely gaining an office or preventing someone from holding that office.

19.  The Law Commission have produced a consultation paper in which they acknowledge the tension between those interests. They recognise that a petition is intended to police the conduct of elections but that unless a private interest initiates a petition that policing will not occur. The integrity of the electoral system is important whether the majority is one or one hundred thousand. However, the private incentive to bring a petition may be entirely lacking in the latter circumstance.

20.  Consequently, the concept of a public interest petition is mooted. This in turn brings problems. Who would be the petitioner? How would petitions be chosen? On what would petitions focus? Would it be the problems of postal votes? Or some other problem?

21.  These are questions to which there are no easy answers but I urge you to look at the proposals and to comment as you feel fit. An initial reaction may be to say whatever you do don’t increase the chance of petitions. However, I am not sure that is the right response. Thus the change could carry with it an ability to get shot of petitions on the basis that there was no reasonable prospect of success. This might have disposed of (for example) the recent Hackney petition which, amongst other things, complained that the returning officer had provided pencils at polling stations.

22.  If a provision enabling an early step to be taken to get rid of a petition becomes available then the importance of recorded preparation and recorded activity has been enhanced.

Queues at Elections: The Electoral Registration and Administration Act 2013

23.  2013 saw the introduction of the Electoral Registration and Administration Act 2013. This is another piecemeal alteration of electoral law. It demonstrates one of the reasons why the present work of the Law Commission is so valuable.

24.  The Act starts by inserting section 10ZC into the Representation of the People Act 1983. I spent a large part of Easter 2013 grappling with (what I call) Z sections inserted into (existing and much older) local government finance legislation by the Localism Act 2011. The one thing which can be accurately stated about all such Z sections is that when inserted into legislation they do not make the legislation easier to understand.

25.  New and comprehensive legislation dealing with elections is an important step. However, it appears to be some way off. Meanwhile piecemeal legislation comes forward responding to minor difficulties leaving the frailties exposed in the election petition which went to trial in 2013 again exposed by Commissioner Mawrey QC in place.

26.  The 2013 Act seeks to address, amongst other things, two problems thought to have been exposed at the 2010 general election.

Queues for ballot papers: What to do?

27.  Section 19 changes the Parliamentary Election Rules so that a voter who at the close of poll is in the polling station or in a queue outside the polling station for the purpose of voting shall despite the close of the poll be entitled to apply for a ballot paper.

28.  This change is thought to deal with a problem thought by some to be widespread in 2010 of voters at or about 10.00 p.m being in queues for voting papers. I say ‘thought to be widespread’ because it rather appears that some television pictures were very widely broadcast as opposed to the problem being anything other than patchy. In other words the television pictures were widespread rather than the problem.

29.  The extent of the problem may be thought doubtful and the solution, of course, brings a new problem. The length of a queue at a bus stop is not necessarily easy to determine. The length of a queue at a precise moment is even more difficult to determine. The length of a queue of people present for a particular purpose may introduce a further difficulty in determining who is in the queue for the purpose of voting or who has just turned up because he got a call from his friends in the pub that some people had gathered in the street outside a polling station.

30.  If there is a queue the polling station is likely to be busy. The determination of the length of the queue at the close of poll will or may –the circumstances will vary- depend on someone having to go outside to check the end of the queue. How then will others be prevented from joining the queue? Am I allowed to hold a place in the queue for another or for my friends in the pub? The answer to that last question is that places cannot be held. The statutory language refers to a voter being in the queue.

31.  The answer to the earlier question is more difficult. An officer at a polling station will have to do the best he can to gauge the queue at the close of poll and to ensure that only those in the queue at that time are allowed to seek voting papers.

32.  The exercise will be driven by practical considerations but it will need to be remembered that rules in an election have to be strictly met and there is no scope for a presiding officer to vary the rules or their operation.

33.  The time when the count has to start should, in this context, be noted. 4 hours within the close of the poll. This applies to parliamentary elections.

Can the election be stopped?

34.  It has been known for people to seek to stop a parliamentary election. This happened most recently in the north east on the basis the timetable was very short and that a candidate wanted to stand but had not got his papers in in time. Proceedings took a very similar course to that taken a year or so earlier when an attempt was made to stop the alternative vote referendum.

35.  In short what was done was to keep in close contact with the court who were supplied, as was the Claimant, with a comprehensive note explaining the background, the law, the fact that an injunction should not be granted because the timetable cannot be changed (there is no provision in the Rules for that); proceedings have to be brought very swiftly (Sedley J in ex parte Sanders CO/1421/94 said delay might be measured in hours); the Courts have not been able to think of an occasion when it is ever right to stop an election (Begum v Tower Hamlets [2006] EWCA Civ 733 per the Master of the Rolls) and the Rules give no scope for discretion (de Beer’s case CO/1670/2002 stated in Begum’s case to be correct by Court of Appeal).

36.  In such a circumstance, i.e someone trying to stop an election, the first priority usually will be to get some material before the court. As an advocate making his living by appearing in court I should not say this but if there is a choice between getting a sensible note before the court or getting someone to attend the better course is to get the document there. You may, of course, want to have both but you want to get the judge, if he has to go into court, to go in having seen, as can be clearly put with a variety of reasons, that he should not stop an election.

The Woking petition

37.  The Commissioner’s judgment recorded that it was alleged that false names were entered on the electoral register for a ward in Woking. Names were entered of people who did not live at the address stated or of people who did not exist at all. Further, the postal votes of some genuinely resident were harvested. Accordingly, the allegation was that false personal and postal votes were given.

38.  The Commissioner said it was another case where the UK’s shambolic electoral system has led to an election being challenged on the ground of widespread fraud.

39.  It is of importance to notice that the Commissioner expressly said (paragraph 267 of [2013] EWHC 2572) that the existence of widespread and successful fraud was no criticism of the Returning Officer. He was described as an impressive witness running the electoral affairs of Woking as well as could be done. The Commissioner summarised the matter by saying that the Returning Officer ran a tight ship and that it was not his fault that he, an honest man, was called on to operate a dishonest system.