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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Evans, R (On the Application Of) v The Electoral Commission [2021] EWHC 1818 (Admin) (31 March 2021) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2021/1818.html Cite as: [2021] EWHC 1818 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
B e f o r e :
____________________
| THE QUEEN ON THE APPLICATION OF DAVID EVANS |
Claimant |
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- and - |
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| THE ELECTORAL COMMISSION |
Defendant |
____________________
MR P. COPPEL QC AND MS O. DAVIES appeared on behalf of the Defendant.
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Crown Copyright ©
If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
MRS JUSTICE ELLENBOGEN:
Introduction
The principles to be applied
The facts
a. at 08.54, David Evans wrote to Mr Bob Posner, Chief Executive of the defendant, seeking a meeting. He stated that the party's application had not been made sooner because the Scottish Labour Party's leadership election had not concluded until 27 February 2021 and that the leadership election constituted extenuating circumstances which the defendant was obliged to take into account. The description on the regional list ballot paper was an essential mechanism for communicating the party's message to voters — to deny the claimant the opportunity to register an appropriate description for the crucial Scottish Parliamentary elections would be profoundly unfair;
b. at 12.43, Mrs Edwards responded, at Mr Posner's request. She stated that, whilst it was a matter for the party, whether because it was common to other parties in Scotland or for some other reason, to include a reference to its leader in Scotland within the description the subject of its application, that choice was not obviously a relevant fact for the defendant to take into account in fulfilling its legal duties in a robust and impartial way. She continued, ""We asked for applications well in advance of close of nominations to help all parties know when we needed them by to have time to complete assessments against the various tests. The related challenge here is the need for all applications to be published for a reasonable period of time for public comment. We would find ourselves in difficulties regarding procedural fairness should we disregard that step for you but not for anyone else… I do want to say that your party has, and has always had, the same opportunities under the law and our processes as any other party to apply for amendments to your registered details. There is no question of the commission denying any opportunity to your party that has been extended to others. That said, we are of course willing to talk further if you do think there are exceptional circumstances to consider your application urgently and without a reasonable period for public comment. I can be available for a phone call this afternoon…";
c. at 14:00, the parties had a telephone conference, during which the claimant reiterated its position that the defendant's approach placed the elections in jeopardy of not taking place on an equal footing;
d. at 16:25, Ms Edwards asked the claimant to arrange for its registered officers to authorise the amended application which the claimant had sought to make on 23 March 2021;
e. at 16:29, Mr Whyte asked Ms Edwards whether an email from him, with the registered officers on the copy line, would suffice for a valid authorisation, or whether each officer needed to send his individual authorisation.
a. at 06.45, Ms Edwards informed Mr Whyte that an email from him, copied to the other registered officers, would not suffice and that affirmative individual authorisations by email were required;
b. at 11:22, Mr Whyte sent the necessary authorisations to Ms Edwards, thereby validating the application. (That was over 7 weeks after 31 January 2021 and over 4 weeks after the claimant's Scottish leadership election.);
a. at 13:25, Ms Edwards informed the claimant that, "Having considered the matter very carefully, unfortunately as the initial application was received on 4 March, followed by an authorised amendment on 25 March, we are left with insufficient time to fulfil our statutory duties as the registrar of parties and take a fair decision on this matter in advance of the close of nominations next week.… In order for us to meet our statutory obligations in respect of the registration of party descriptions, we follow an established process when taking decisions on applications. The details of this process can be found on our website. This includes undertaking a careful assessment against the statutory requirements, as well as seeking the views of our internal approvals board before taking a final decision. Prior to this, we also publish the details of applications on our website for public comment. This allows voters to provide views on the proposed identity marks in relation to the statutory tests, and so forms an important part of the process. Following this process ensures that the decisions we reach are robust and fair. It also means that voters can interact with the ballot paper without being confused or misled by what is on there, and no party is treated more or less favourably as part of it…. We do not think it is reasonable under the circumstances to accelerate the process. Doing so would compromise our decision-making process potentially to the detriment of voters in the upcoming election. It would also not be fair to other parties who have submitted applications that will also not receive a decision before the close of nominations for the May Polls this year… We had advised parties on 9 October 2020 via our website to submit applications by 31 January. This was to ensure parties had enough time to finalise the details of applications well in advance for the nominations deadline, and ensure that we could undertake a statutory decision-making role in a robust manner. Our guidance also makes clear that, once we have all the information we need to consider for an application, the process usually takes around six weeks. In some cases, it can take less or more time than that… You have raised concerns that your party is being put at an electoral disadvantage because of this matter, particularly noting the use of other parties' leaders names and policy positions, and also the voting system in Scotland. As stated yesterday, we appreciate these factors but do not agree that they raise extenuating circumstances to consider your party's application ahead of close of nominations, with the consequent deviations from our standard procedures. If parties want to use particular identity marks or ballot papers, then it is the party's responsibility alone to determine those details and submit an application in a timely manner. Our responsibility is to maintain the registers of political parties and consider those applications in line with the statutory requirements. We do this by applying the law consistently, impartially, and fairly for all applicants. Ensuring that parties have similar or identical registered descriptions that they can use at elections does not comprise one of our statutory functions, and it would not be proper for us to interfere in this way…"
a. received a pre-action letter from the claimant, which stated that, unless the defendant confirmed its grant of the claimant's application by 5:00 p.m. that day, proceedings would be issued; and
b. published the claimant's application of 25 March 2021 online, for public comment.
The grounds of review
Breach of statutory duty
a. First, it is said that there has been a breach of statutory duty arising from an error of law. It is contended that, under section 30 of the Act, an application of the type in question must be granted unless the defendant forms the opinion that it (1) will cause the relevant political party to have too many descriptions registered (section 30(4A)(a)); or (2) is longer than the six words prescribed by statute (section 30(4A)(b)); or (3) is impermissible in one of the ways specified by section 28A(2) of the Act. (section 30(4A)(c)). Neither section 28A nor section 30 permits the defendant to impose an additional or procedural substantive pre-condition beyond those for which the Act provides. Refusing to grant an application on the ground that it had not been made prior to a self-imposed administrative cut-off date was an error of law and a breach of the statutory duty to grant applications which do not fall foul of the relevant provisions, as was the refusal to determine the application, absent an opportunity for public comment (which is neither required by statute nor clearly provided for within the defendant's own guidance; the latter stating that proposed descriptions will "normally" be published on the defendant's website, for no particular period. The defendant had already indicated that it considered that the description did not engage any of the statutory grounds for refusal and there was no basis on which to delay its decision until after close of nominations, knowing that the effect of doing so would be to deprive the claimant of its ability to have the description included on ballot papers for the Scottish Parliamentary elections. Any specified pre-conditions which are not required by the Act ought to be disregarded. Furthermore, there is no room for implying a general power under which the defendant might delay or defer compliance with its statutory obligations. The defendant's reliance upon the need to apply its processes consistently to all applicants was misconceived: consistency, whilst desirable, was not an absolute rule in administrative law and, in any event, (2) there is no virtue in consistency where its effect is to subvert the defendant's express statutory obligations; and (3) the claimant's position falls to be distinguished from that of other applicants because its new Scottish leader was elected after the defendant's internal deadline for applications.
Unlawful fettering of discretion
b. Further or in the alternative, it is said that the defendant's inflexible application of its standard approvals process constitutes an unlawful fettering of the statutory discretion which Parliament has accorded to it under sections 28A and 30 of the Act because:
i. it is an unlawful fetter on a public body's discretion for it to treat policy guidance as binding, and internal policies must not preclude a proper exercise of the statutory discretion in each case;
ii. a policy should not be framed in absolute terms which have the effect of debarring from consideration a person who falls outside the terms of the policy rule, but within the statute itself; and
iii. there is no bar on public bodies adopting a policy or practice, as long as it does not preclude departure from that policy, or the taking into account of circumstances relevant to a particular case. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful.
Irrespective of whether sound reasons lie behind the defendant's usual process for considering applications of the nature under consideration, there is no justification for its rigid application in circumstances in which it is not appropriate, particularly where the defendant has acknowledged that the limited statutory grounds for refusal are not engaged.
The grounds of resistance
a. There has been no "decision", as described in section 3 of its claim form. The claimant's contention is a construct, because the only alternative would be to challenge the defendant public authority on the basis that it had not made a decision within a matter of days of its receipt of a valid application, submitted by a body which had delayed making it, knowing of a time imperative.
b. There had been no refusal to grant the application; merely a recognition that the decision-making process for the purposes of section 30 of the Act could not be completed before 31 March 2021. Neither could such recognition properly be construed as a policy of refusing to grant applications on the grounds that they had not been made by a self-imposed cut-off date. As the defendant's website made clear, 31 January 2021 was not such a date, because it was still possible that applications received after that date would be determined before close of nominations, as, indeed, some had been. However, that could not be guaranteed. Here, the claimant had submitted a valid application 4 weeks after electing its new Scottish leader, leaving the defendant with just 5 days before the close of nominations. There was a need to prioritise giving due consideration to the factors set out in section 30 of the Act, over rushing to deal with applications as quickly as possible. The process was not a tick-box exercise and had been introduced following an independent review by Elizabeth Butler, in 2014, after the defendant had approved the registered description "Remember Lee Rigby", to the considerable distress of Mr Rigby's family. Although the claimant's proposed description was not offensive, the reference to the name of a more recent political figure (Mr Sarwar) could mislead a voter, if used in an electoral area where that figure was not a candidate. It was to be remembered that a description could be used on a ballot paper without an emblem. The defendant was obliged to consider the experience of any sort of voter — including one who had limited education and knowledge of political parties — when casing a vote. The defendant had not informed the claimant that it considered the proposed description to engage none of the statutory grounds for refusal. It had indicated that, unlike the originally proposed descriptions, the amended description clearly referred to a particular registered party. That was a consideration under the defendant's guidance, but was not one of the considerations required by section 30 of the Act. The matter was not straightforward and the claimant's proposed description would need to be compared against all 867 descriptions on the register to ensure that there were no similarly worded descriptions which could cause confusion amongst the electorate. In considering whether voters were likely to be confused or misled, it could not be unlawful to seek views from the electors themselves, which was a vital and necessary part of the defendant's ability to decide whether section 28A(2)(b) or (e)(i) was fulfilled. In any event, such power could be found in paragraph 2 of schedule 1 to the Act, by which the defendant "may do anything...which is calculated to facilitate, or is incidental or conducive to, the carrying out of any of [its] functions".
c. The need for balance in the way in which the defendant carries out its functions was embedded in the Act; see, for example, the provisions which ensure that the defendant's composition and the information and representations which it receives are representative of the political landscape (sections 3A and 4). That need necessarily informs the processes by which the defendant carries out its functions. The claimant's suggestion that the defendant replace its current practice of dealing with applications in the order in which they are received with one which takes account of subjective factors, such as the date of a party's leadership election, in deciding which application should take priority, would be entirely ad hoc and would lead to precisely the situation of which the claimant unjustifiably complains, whereby other parties are not in a "comparable position" with one another. It would be smaller parties which would suffer in that event.
d. Even if an application to amend the claim form were to be made, seeking to challenge the time being taken to decide the claimant's application, the claim would fail because a valid application had not been received until 25 March 2021, and, then, only at the defendant's prompting; determination of an application is not a mechanical exercise; there is nothing unlawful in the process adopted by the defendant, which is thorough, even-handed and expeditious; all of the evidence before the court is that the defendant has moved with as much speed as possible; and the substantive and operative course of the defendant's inability to complete the process before close of nominations is the claimant's serial delays in submission of required details.
e. The defendant had not fettered its discretion and had already decided 11 of the applications to amend the register which had been submitted after 31 January 2021 (albeit earlier than the claimant's application), within 2 weeks of that date. The defendant was continuing to work through the remaining applications, of which the claimant's was one of the latest, on a first come, first served basis. This was not a case in which the defendant's advice to parties amounted to a decision or determination, or in which the Defendant had applied an inflexible policy; it was a statement of the length of time usually taken to carry out the requisite steps, in order that applicants would not be disappointed. The defendant's statement that some applications could be completed quickly indicated that the time taken is, properly, fact-sensitive. Had the claimant not wasted a month between Mr Sarwar's election and the making of a valid application, its application could well have been granted. The claimant had been informed, on 12 March 2021, that its proposed description was unlikely to be approved, because it did not clearly identify a registered party. It had then taken a further 11 days to attempt to make another application, containing revised wording, on 23 March 2021. Even then, that application had not been validly submitted for a further 2 days. By that point, less than a week had remained before close of nominations, with 17 applications ahead of the claimant's in the queue.
The parties' submissions
For the claimant
a. First, following that process would cause the claimant substantial prejudice; its leader's name would not appear on the ballot paper, whereas the Scottish National Party's leader's name would do so. The fact that the proposed description can be deployed in other materials is the source of part of the prejudice created — electors will not be able to identify the connection between the two.
b. Secondly, the process will frustrate the purpose of the Act, which is to require approval and registration of those descriptions which are compliant with the statutory criteria; and
c. Thirdly, there can be no justification for such prejudice, because public consultation is neither required by statute, nor otherwise reasonably required.
For the defendant
a. The situation which the claimant now complained, and the associated need for expedition, was not a product of external circumstances, or unlawful decision-making by the defendant; rather it was one of the defendant's own making; further,
b. It was material to whether the court should entertain the claimant's claim, or grant relief. Ms Edwards' evidence, which could not be gainsaid, was to be borne in mind:
"54. The Commission received 59 registration applications in the month of January 2021. This was the highest number of applications in one month for the Commission. All applications received by 31 January have been determined by the Commission. The last of those applications was determined on 5 March 2021. As at 26 March 2021, we have received another 40 registration applications after the 31 January date, of which the Labour Party is one of the later applications, We have considered these applications on a first-come-first served basis, except where they were part of the earlier descriptions review (paragraph 52 above). We have determined another 11 applications received after 31 January date and are continuing to assess the others."
That evidence demonstrated that the claimant's contention that the defendant refused to consider applications received after 31 January 2021 was simply wrong and, secondly, that allowing its very late application to be determined without reference to lawful procedure would serve to bump the claimant up the queue. That would be unfair and was unattractive, having regard to the importance of the defendant being conspicuously fair, a concept baked into its composition and required independence and impartiality. For one large political party to be given preferential treatment would be unfair. Even if all outstanding applications could be determined by the morning of 31 March, that would be to the prejudice of those who had been obliged to go through a more rigorous application process and would favour those who had put in applications very late and, for that reason, would be subject only to an abbreviated process. Some members of that latter group might have had an application rejected following public consultation which would not have been rejected in its absence. There had been no suggestion that the defendant had been dilatory. The requirements of fairness towards the electorate and other registered parties were at a premium in the legislation; they were not luxuries. The application for interim relief ought to be refused.
Discussion and conclusion
"(1) A party's application under section 28 [for the initial registration of a party] may include a request for the registration of up to 12 descriptions to be used on nomination papers or ballot papers.
(2) Where a request is made by a party under this section in relation to a description, the Commission shall register the description as a description of the party unless it is of more than six words in length or in their opinion it –
(a) would be the same as the name of a party or the registered description of a party which (in either case) is already registered in the register in which that party is applying to be registered,
(b) would be likely to result in electors confusing that party with another party which is already registered in respect of the relevant part of the United Kingdom,
(c) is obscene or offensive,
(d) is of such a character that its publication would be likely to amount to the commission of an offence,
(e) would be likely, were it to appear on a ballot paper issued at an election –
(i) to result in an elector being misled as to the effect of his vote, or
(ii) to contradict, or hinder an elector's understanding of, any directions for his guidance in voting given on the ballot paper or elsewhere,
(f) includes any script other than Roman script, or
(g) includes a word or expression prohibited by order made by the Secretary of State ..."
"(1) A party may apply to the Commission to have its entry in the register altered by ...
(bb) the addition, alteration, substitution or removal of a description...
(2) Subject to subsections (3) to (6A), the Commission shall grant an application under this section.
...
(4A) The Commission shall refuse an application to add a description if –
(a) the party already has 12 descriptions (or such other maximum number of descriptions as is substituted by order under section 28A(6)),
(b) the length of the description exceeds six words, or
(c) in the Commission's opinion, any of paragraphs (a) to (g) of section 28A(2) apply to the description ...
(8) Where the Commission refuse an application by a party under this section, they shall notify the party of their reasons for refusing the application ..."
"45. The Commission follows an established process for the making of decisions on applications under sections 28A and 30 of [the Act]. Outside busy election periods, this process normally takes approximately 6 weeks.
46. This process involves the following steps:
a. checking that all the required documentation has on the face of it been provided, the application has been authorised by the party's officers and the fee has been paid, which usually takes place within five working days of receipt dependent on workload;
b. publishing the details of the applications on its website for public comment, usually on a Thursday, giving voters the time and opportunity to provide their views on, in the case of an application under section 30, applied-for descriptions. We usually allow around 10 days for public comment;
c. assessment of the application by the Commission's registration team, which forms part of the Regulation Directorate for which I am the director, which then makes a recommendation as to whether the application meets the legal tests. The time needed for this depends on the individual circumstances of each application;
d. a "minded to" decision by the Regulation Director on the application (for parties that intend to contest elections in Scotland only, the Head of the Electoral Commission in Scotland takes this and the final decision referenced below) with the aim that this is done within two working days;
e. submission of the application, assessment and minded to decision to the Commission's internal Approval Board (a group of senior officers from across the Commission) which considers the application in accordance with an internal guidance document entitled "Briefing Paper – The party registration approval board", a true copy of which I produce as EXHIBIT LE 3. The aim is for the Board to make recommendations within five working days;
f. review of the Approval Board's comments and final decision by the Regulation Director, again with the aim that this is taken within two working days;
g. notification of the decision to the applicants, usually the day after the decision; and
h. If the application is approved, the making of the necessary changes to the relevant register."
a. the pleaded case — the defendant has made an unlawful decision not to determine the application for the addition of a registered description for the Labour Party, to be included in nomination papers and subsequently printed on ballot papers;
b. the case asserted in Mr Campbell's opening submissions to me yesterday — the defendant has refused to take a decision in advance of close of nominations; and
c. the case asserted in reply to Mr Coppel's submissions — the decision by the defendant that the standard process would be followed, including public consultation, in the knowledge that that would preclude an in-time decision.
a. the allegedly substantial prejudice to the claimant in not having its Scottish leader's name on the ballot paper, in circumstances in which its primary opponent will have such an opportunity. As Mr Coppel submitted, that may be a consequence of the application of the defendant's process but, if so, it does not render that process unlawful. Furthermore, there is a tension between Mr Campbell's submission regarding Mr Sarwar's renown in Scotland and his assertion that, notwithstanding the claimant's unfettered ability to use the proposed description in its campaign materials, the connection between such materials and Mr Sarwar, or between Mr Sarwar and the Party, might not be made by voters at the ballot box;
b. its frustration of the purpose of the Act. I have already observed that a fair process serves, rather than undermines, the purpose of section 30;
c. the absence of justification for the alleged prejudice. It is far from clear that such prejudice has been demonstrated, but, if it has, I am satisfied that the claimant's contention that consultation is an unnecessary part of a fair process is unlikely to succeed. In any event, consultation is only one of the elements of the defendant's process which would need to have been completed within a 5-day period, and, on the claimant's case, potentially in relation to all applicants whose applications were submitted after 31 January 2021. It is self-evident that abridging the process adopted to such an extent will impede the quality of decision-making and will mean that applications which have been submitted late, or very late, will be subjected to lesser scrutiny than were those submitted in good time. That is not only unfair to applicants in that latter group but contrary to the interests of the electorate. I regard the submission that the defendant's approach risks treating every applicant affected unlawfully as fanciful.
a. the relief sought is that a decision to be taken by the defendant, by 11 o'clock this morning, to enable all necessary steps to be taken in advance of the close of nominations later today, should that decision be positive. I have already set out my conclusions as to the prejudice which the requisite truncation of the assessment process would cause, both to other applicants and to the electorate.
b. set against that is the potential prejudice to the claimant which would be caused by the refusal of interim relief. As I noted earlier in this judgment, I am not satisfied that significant prejudice has been demonstrated, on the available evidence. Mr Whyte has stated his belief that the defendant's "..continuing refusal to grant the Application will place the Scottish Labour Party at an unfair electoral disadvantage in the 2021 Election". However, he has also given the following evidence:
"8. …In his acceptance speech on the day of his election as leader, Mr Sarwar outlined the two campaign themes of an end to division and a focus on recovery from the Covid pandemic (see text of acceptance speech on LabourList website at pages 45-47). These two themes have remained at the forefront of the Scottish Labour Party's campaign in the 2021 Election."
That messaging, together with Mr Sarwar's high profile in Scotland, and the claimant's ability to use the text of its proposed description in all campaign materials, speeches et cetera, in my judgment means that any prejudice to the claimant is substantially less significant than has been asserted and is significantly outweighed by the prejudice which would be caused to other applicants, the electorate and the defendant's independence from political pressure, were the relief sought to be granted.
