English Democrats Party, R (On the application of) v Electoral Commission

The Claimant, the English Democrats Party (“the English Democrats”), is registered as a political party with the Defendant, the Electoral Commission (“the Commission”), under Part II of the Political Parties, Elections and Referendums Act 2000 (“PPERA”).

The Claimant challenges the Commission’s decision of 7 September 2016 (“the decision”) under s.23 of PPERA to maintain the register of political parties for Great Britain (“the Register”) by removing the description “English Democrats – England Worth Fighting For!” (“the description”), one of the twelve descriptions included in the Claimant’s entry in the Register.

The Commission’s letter of 7 September 2016 notifying the Claimant of the decision states, so far as is material:

On 21 September 2017 Gilbart J, at a renewal hearing, granted the Claimant permission to challenge the decision only on the grounds of vires, rationality and lack of consultation.

Mr Robin Tilbrook is the Leader of the English Democrats. He is also a Solicitor and Principal in Tilbrook’s, solicitors for the English Democrats. Mr Tilbrook informed me that he does not have a Higher Court rights of audience qualification and he is therefore now representing the Claimant as a litigant in person. Mr Philip Coppel QC appears for the Commission.

The Commission was established by PPERA s.1. It consists of nine or ten Electoral Commissioners appointed by the Queen in accordance with s.3. Schedule 1 to PPERA makes further provision for the terms of appointment of Commissioners, for staff, and imposes political restrictions on staff in the Commission. The Commission’s general functions are set out in ss.5-13. Amongst other things, the Commission must keep under review and submit reports to the Secretary of State on the registration of political parties: s.6(1)(e).

The registration of political parties is governed by Part II of PPERA (ss.20-40). Section 23 provides for two registers of political parties: one for England, Scotland and Wales (called “the Great Britain Register” or Register) and the other for Northern Ireland (called “the Northern Ireland Register”): s.23(2).

The Register replaced a short-lived political party registration scheme created by the Registration of Political Parties Act 1998 (“RPPA 1998”). That register was maintained by the registrar of companies under the then-Companies Act 1985.

The Commission is charged with the responsibility of maintaining the Register. It is one of nine separate registers created by PPERA, each of which the Commission must “maintain”. Section 23(1) provides:

The registration process starts by a political party applying to be registered under Part II. A political party does this by sending to the Commission an application which must comply with the requirements of Part I of Sch.4 and which is accompanied by a declaration in the prescribed form. Part I of Sch.4, in conjunction with s.24(1), specifies various matters that must be included in the application:

The proposed registered name of the political party;

The address of its headquarters;

The name and home address of the party’s leader;

The name and home address of the party’s nominating officer;

The name and home address of the party’s treasurer;

A copy of the party’s constitution; and

The party’s draft financial scheme.

In addition a political party may apply for other matters to be included in its entry in the Register:

The party’s campaign officer (s.25(1));

Up to twelve descriptions (s.28A(1));

A joint description (s.28B(1)); and

Up to three emblems (s.29(1)).

When the Commission receives an application for the registration of the name of a political party, the Commission must grant the application unless in its opinion the proposed name would contravene one or more of paragraphs (a)-(f) of s.28(4). Upon granting the application, the Commission must include the specified particulars in the Register: s.28(8). If the Commission refuses an application, it must notify the party and give reasons for the refusal: s.28(9).

Where a political party includes a request for the registration in the Register of one or more descriptions, the Commission must register each description unless that description would contravene s.28A(2) which provides:

Where a political party includes a request for the registration in the Register of one or more emblems, the Commission must register each emblem unless that emblem would contravene s.29(2).

A party may apply to the Commission to have its entry in the Register altered (s.30(1)). Sub-sections 30(2)-(8) prescribe how the Commission is to deal with applications to alter an entry in the Register. Sub-sections 30(4A), (4B) and (4C) provide that the Commission must refuse to add, alter or substitute (respectively) a description if, in the Commission’s opinion, any of paragraphs (a) to (g) of s.28A(6) would apply to the new description.

A registered political party is required to notify the Commission if “at any time particulars in a party’s entry in the Register which relate to any relevant matter cease to be accurate”: s.31(2). “Relevant matters” are listed in s.31(2). In addition, at specified intervals the treasurer of each registered political party must notify the Commission that the particulars in the party’s entry in the Register remain accurate and, if not, must notify the Commission of changes: s.32(2).

Registration of a party’s political name, description or emblem entitles a candidate who is the subject of that party’s authorisation to have that detail included on the ballot paper.

Schedule 1 to the Representation of the People Act 1983 (“RPA”) contains the Parliamentary Election Rules which are the relevant rules on the uses of a description in the Register.

The timetable in those rules is triggered by the Clerk of the Crown issuing a writ for a Parliamentary election. Rule 1 requires the Clerk of the Crown in the case of a by-election to issue the writ as soon as practicable after the issue of the warrant. The writ is directed to the returning officer for the constituency and is conveyed to him: rule 3(2). Not later than 4pm on the second day after the returning officer receives the writ, he must publish a notice of election, stating the place and time at which the nomination papers are to be received and, if the by-election turns out to be contested, the date of the poll: rules 1 and 5. In the case of a by-election, to be nominated as a candidate, the nomination paper must be delivered to the returning officer “not earlier than the third day after the day of the publication of the notice of election or later than the seventh day after the date on which the writ is received”: rule 1. Rule 6(2)-(3) provides:

In the case of candidates who are authorised by a registered political party to be a candidate for that party in a particular election and constituency the description ‘which is authorised as mentioned in rule 6A(1) or (1B) below’ is any of the descriptions of that party registered under s.28A of PPERA.

Once a nomination paper is delivered to a returning officer within the prescribed time, that returning officer must accept the nomination except in the very limited circumstances prescribed by rule 12(1). The returning officer has no power to refuse to accept a nomination on the basis that the description from the Register chosen by the candidate authorised by a registered party is offensive. Thereafter the returning officer must publish a list of the persons nominated: rules 1 and 12.

Rule 14 provides for the publication of statement of persons nominated. Rule 14(2) provides:

Rule 19 prescribes the form of the ballot paper. It provides, so far as relevant:

The Commission’s publication “Introduction to registering a political party” refers to a party “description” as “an optional identity mark which, depending on the specific election, can either act as an alternative to the party name or be used in addition to the party name on the ballot paper”.

In July 2014 the Commission published a report on the European Parliamentary Elections and the Local Government Elections which took place in May 2014 (“the Report”). At paras 3.18-3.39 the Report considered “party descriptions and emblems”. It was noted that in one case the Commission had wrongly registered an offensive description (“Remember Lee Rigby”) which subsequently appeared on the ballot paper in Wales (paras 3.21-3.23).

As soon as the Board had become aware of the mistake it asked for a full independent investigation which was undertaken by Elizabeth Butler, the Independent Chair of the Commission’s Audit Committee (para 3.24). Ms Butler’s recommendations in her report dated 5 May 2014 included the following:

The legal advice referred to by Ms Butler in her report stated, so far as relevant:

In the light of the Butler recommendations the Commission instructed Price Waterhouse Coopers (“PWC”), its internal auditors, to undertake a sample testing of the names, descriptions and emblems. PWC produced a report dated 25 July 2014. This led to the Commission revising its process for the assessment of applications to register or alter a party’s entry of a party name, descriptions and emblems.

The Commission accepted all the recommendations in the Butler report. A range of changes were made to minimise the risk of such a serious error as occurred with the “Remember Lee Rigby” description in the future. The Commission’s procedure for considering all new applications is set out in a document entitled “Party Registration Approvals Board” (November 2015). Subject to a few amendments to the table of board members and alternates, this remains the current procedure. The “end to end process” is:

Following the events in 2014 the Commission undertook a review of the existing party names, descriptions and emblems, as described by Mr Robert Posner, the Director of Political Finance and Regulation and Legal Counsel at the Commission at paras 55-61 of his second witness statement made on 19 October 2017. The first review covered those party names and descriptions that included abbreviations and acronyms, numbers expressed as numerals, links to online content, confusion with other parties’ identity marks, and the use of block capitals. In addition, the review also covered two emblems that included links to online content. In 2015 the Commission undertook a second review. This review covered party emblems and a limited number of descriptions. The result was that the Commission determined that 109 emblems and 14 descriptions should be removed from the registers of political parties.

In addition to the large scale reviews to which I have referred, the Commission will also review existing registrations where there is a specific electoral incident or circumstances that in the Commission’s view warrant such a review. Such was the position on 16 June 2016 following the murder of Jo Cox, the Member of Parliament for Batley and Spen in her constituency a week before the referendum on the UK’s membership of the European Union. Mr Posner in his second witness statement, states (at para 83) that:

Mr Posner therefore asked the party registration team to consider whether any new applications or existing registered identifiers of parties that had expressed an intention to stand at the Batley and Spen by-election might be offensive in light of the circumstances of the by-election. At paras 89-101 in his witness statement Mr Posner deals with the Commission review of parties intending to stand.

The review of the Claimant’s registered descriptions began on 26 August 2016. It appears that an e-mail was circulated within the party registration team on 2 August with a link to a press release on the Claimant’s website indicating their intention to stand in the by-election, but Mr Posner states that he was not aware of this at the time (para 111).

The various stages of the review are set out in a document entitled “Review Summary”. The party registration team assessment was sent to Mr Posner on 31 August. Its recommendation was to retain all the Claimant’s descriptions on the Register.

On 1 September Mr Posner expressed an initial view that he was minded to decide that the present registered descriptions continued to meet the statutory test for registration, save for No.6 English Democrats – England Worth Fighting For! which did not meet the statutory requirements because it would be offensive to voters.

Mr Posner asked for views from the Approvals Board members. The Approvals Board was unanimous in its view that eleven of the twelve descriptions should remain on the register. On the sixth description views were mixed. Four members of the Board were in favour of removing it, three for keeping it. The Review Summary contains their reasons. In his second witness statement Mr Posner states at para 115:

Thereafter on 5 September 2016 Mr Posner took the final decision, recorded in the Review Summary in the following terms:

The present registered descriptions continue to meet the statutory test for registration, save for No.6 English Democrats – England Worth Fighting For!

No.6 English Democrats – England Worth Fighting For! does not meet the statutory requirements for registration because it would in the opinion of the Commission be offensive to voters, in the context of a ballot paper and voters exercising their right to vote. In reaching that minded-to decision a material consideration is the forthcoming Spen and Batley by-election, for which the English Democrats party have indicated an intention to stand a candidate and the tragic and violent circumstances of the murder of the sitting MP for that constituency. In that context, for a ballot paper to include a party description that could not unreasonably be perceived as a call to or condoning violent means to further a particular political view, would at the very least be inappropriate and ill-judged, but I conclude more than that there would be those who would—as does the Commission—understandably find it offensive.

Mr Tilbrook advances three grounds of challenge:

The Commission lacked vires to make the decision.

The decision was not one that the Commission could reasonably have reached.

The Commission failed to consult with the Claimant before taking the decision.

Mr Tilbrook submits that the Commission has no power to make changes to entries in the Register without the agreement of a registered party. Section 30 of PPERA gives an express power to the Commission to make changes to the Register but that is only on the application of the registered party. Section 23, on which the Commission relies is, he submits, first, concerned with the introduction of the new Registers of Political Parties in place of the Register of Political Parties maintained by the Registrar of Companies under the RPPA 1998, and second, gives the Commission a power to maintain the Registers, not to change them.

Mr Tilbrook submits that “maintain” means “keep in order”. The example he gives is of a car being serviced and maintained; that does not include making changes to the car, such as to the colour of the car.

In his amended witness statement dated 27 October 2017 (“amended witness statement”) Mr Tilbrook states at para 14(d):

Further Mr Tilbrook contends that if the power to maintain given by s.23 granted to the Commission a power to make changes to the Register and, as in the present case, to remove a description, the legislation would have included safeguards requiring prior consultation and providing rights of appeal.

I reject these submissions. Section 23(1) of PPERA provides (see para 9 above) that the new Registers (a) shall be “maintained” by the Commission, and (b) shall be “so maintained in such form” as the Commission may determine. I agree with Mr Coppel that it is clear from the wording of sub-section (b) that sub-section (a) is not concerned with the form of the Registers but with their content. I accept Mr Coppel’s submission that the Commission does not “maintain” the Register by allowing non-compliant entries to remain on it. The maintenance of a register involves a continual process of securing that both new entries onto it and existing entries satisfy the requirements for being on the Register. The Commission maintains the Register by ensuring that each entry meets current, rather than historic, requirements.

There are nine Registers created by PPERA, each of which the Commission must maintain: ss.71 V (Register of recordable transactions), 89 (Register of Notifications for Purposes of section 88); 107 (Register of declarations and notifications for purposes of s.105); Sch.7 para 15 (Register of donations); and 19 (Register of compliance officers); Sch.7A, para 15 (Register of recordable transactions); and Sch.19A para 7 (Register of recordable gifts to unincorporated associations). The draftsman is presumed to use words consistently in a statute. If the Claimant is correct in its construction of s.23(1), then in respect of all nine Registers that the Commission must maintain, it cannot do anything about existing entries that no longer satisfy the requirements for being on the Register, unless and until asked to do so by the registered party. I cannot accept that is so. The Commission’s function of maintaining the Registers (s.23(1)) is separate from and additional to its functions of granting an application to be registered (s.28) and granting an application to have an entry in the Register altered (s.30).

I am satisfied that s.23(1) of PPERA gives the Commission the vires to make the decision.

During the course of his submissions Mr Tilbrook contended that Mr Posner did not have delegated power to make the decision that he did. This is not one of the grounds of challenge in the Claim Form, and there is no basis for this contention.

In support of his submission that the decision is irrational Mr Tilbrook relied on the matters set out at paragraph 15 of his amended witness statement. In summary, the most relevant appear to be the following:

He believes that “the Electoral Commission have acted out of their own personal political prejudices and not on any statutory or even objectively justified basis”.

The English Democrats are democrats who want to see England’s political future and democracy properly protected. The English Democrats have never campaigned in a way that is anything other than “fighting” the political campaign in the normal, proper, legal and democratic way.

“The linkage with the Batley and Spen By-election is a little difficult to understand on any rational basis since the murderer of Jo Cox is of Scottish origin and is alleged to have said ‘Britain first’ whilst attacking her. He also appears to be somebody with a long history of mental illness and to have been acting entirely alone. It would therefore seem that the English Democrats’ description which was removed (‘England Worth Fighting For!’) would be something that Thomas Mair would have (perhaps violently) have opposed!”

The approach taken by the Commission is direct or indirect discrimination, since it is directly against English nationalists but it is also indirectly against all English people, since English people are far more likely to feel that they are in favour of campaigning, fighting, etc for England than other types of people would be.

The decision is explicitly taken because of the linkage between fighting and England which is not only irrational, discriminatory and offensive to English nationalists, but is even more explicitly so when it is considered alongside what other descriptions mentioning fighting have been mainly allowed on the Commission’s register. Having done a search of the Commission’s website to see other usages of the word “fighting” or “fight” which are registered, the one that provides the clearest comparator is the Welsh “Peoples First” Party who have a reported description “Fighting for Wales”. Mr Tilbrook submits that the present case is a clear instance of unlawful discrimination contrary to the Equality Act as it would seem that the Commission are happy for Welsh nationalists to fight for Wales but not English nationalists to fight for England, despite the fact that Welsh nationalists have actually used violent means but English nationalists have not.

The meaning of the word “fighting” is not restricted to fighting with violence, and Mr Tilbrook emphasised that the English Democrats are opposed to violence. That being so, and having regard to the other factors to which I have referred, Mr Tilbrook submits that the decision is irrational. He contends this is particularly so as the word “offensive” in s.28A(2)(c) is linked with the word “obscene” (“obscene or offensive”), and the word “offensive” should therefore be considered to be (in his words) “equivalent to obscene”.

I do not accept that the decision was one that the Commission could not reasonably have reached. It is clear that the Commission undertook a careful review (see paras 34 to 37 above). It concluded that the murder of Ms Cox in her constituency under the banner of putting “Britain first” meant that the use of the word “fighting” in the description “English Democrats – England Worth Fighting For!” would, for a sufficiently large number of voters reading the ballot paper, more likely be associated with the primary meaning of the word “fighting” (i.e. the use of physical force to defeat an opponent) than its secondary meaning (i.e. campaigning for a cause), rendering the description offensive. This, in my judgment, was a conclusion that the Commission was entitled to reach on the evidence. The Review summary records the views articulated by the Registration team and the Approval Board that were considered by Mr Posner when he made the decision. He recognised that the word “fighting” had different meanings and gave his reasons for concluding as he did, having regard to the circumstances that existed at the time.

As Mr Coppel submits (and Mr Tilbrook did not disagree) the application of the unreasonableness test involves a sliding scale review, more or less intensive according to the nature and gravity of what is at stake (R v Department for Education and Employment ex p Begbie[2001] 1 WLR 1115 at 1130 (CA)). I agree with Mr Coppel that no heightened review was warranted in this case which (1) involved the removal of only one of twelve descriptions (descriptions remaining included No.3 “Putting England First!” and No.12 “Believe in England”); (2) the only significance of a registered political party’s descriptions is in relation to the content of nomination papers, and the statement of persons nominated in ballot papers; and (3) a fresh application can be made to put the description back on the Register at any time. Whether or not such an application succeeds will no doubt depend, at least in part, on whether there has been a change in circumstances.

In his evidence and during the course of his submissions Mr Tilbrook made various allegations. First, he alleged bias. He believes that the Commission “acted out of their own personal political prejudices” (see para 47(i) above). He refers to “the context of the creation of the Electoral Commission” which, he suggests, was one of “Labour partisanship”; and he states that he “accepts that there are probably very few people working for the Electoral Commission who are patriots and that they may not like the idea that people will fight for their country” (para 3 of his amended witness statement). Further Mr Tilbrook alleges that Mr Posner “is personally opposed to “English nationalism” (see his supplemental witness statement dated 14 December 2017, para 12). However, despite these allegations, bias is not one of the grounds of challenge. In my judgment there is no basis for the suggestion that the decision resulted from the bias of the Commission or Mr Posner.

Second, and as part of the allegation of bias, Mr Tilbrook suggests that the reasons given by Mr Posner for the decision were not genuine reasons. This, he said, is apparent from the fact that when subsequently the Claimant applied to re-register the description “English Democrats – England Worth Fighting For!” the application was refused. Mr Posner explained in his witness statement (at para 122) that the final decision was made by Ailsa Irvine, Director of Electoral Administration, on 15 September 2017. Mr Posner states: “Although the Batley and Spen by-election was in the past by then, the Commission noted the current context of violent acts with political or ideological motivation, including instances of violence linked to English nationalism. In that context, the word “fighting” could be read as condoning violent action for political purposes which, in the Commission’s opinion, made if offensive”. There is no challenge to that decision in these proceedings. I reject the allegation that the reasons given by Mr Posner for the decision were not genuine reasons.

Third, Mr Tilbrook alleges discrimination. This is clear, he submits, from the fact that the Commission has allowed the Welsh “People First” party to have a description “Fighting for Wales”. However permission to challenge the decision on the ground of discrimination contrary to the Equality Act 2010 (see summary grounds of claim, ground (iv)) was refused both on the papers by Morris J and at the renewal hearing by Gilbart J. Mr Tilbrook attempted to re-introduce this ground in his oral submissions as part of a rationality challenge. There is no basis for so doing.

Mr Tilbrook submits that any proposed amendment to the Register or other changes should only be made after consultation with the relevant registered party and perhaps also, he suggests, only after a public consultation if appropriate, in a manner that is similar to the Commission’s process for registering changes which have been applied for by a registered party or other registrant.

There is no basis for the suggestion that before one of the twelve descriptions registered by the English Democrats was removed there should have been a public consultation.

The essence of the Claimant’s complaint is that they were not given an opportunity to make representations either before or after the decision was taken.

It is not in issue that the courts have recognised that in some circumstances there is a need for urgency such as will affect what fairness requires to the point of not allowing the person affected by an administrative decision to make representations before that decision is taken (R v Birmingham CC ex p Ferrero[1993] 1 All ER 530 at 541-543 (CA); and R v Life Assurance Unit Trust Regulatory Organisation, ex p Ross [1993] QB 17 at 51-52 (CA)). In my view the present case is an example of where a public interest urgency prevailed over the requirement to allow representations to be made before a decision affecting a person or body is taken.

It is Mr Posner’s evidence that in ordinary circumstances the Commission does give a registered political party notification that it is proposing to remove from the Register one of that party’s existing descriptions, as well as the reasons for its proposal, to give the party an opportunity to make representations before the decision is made. Mr Posner stated (in his amended witness statement, at para 67):

Certainly the electoral circumstances in the aftermath of the murder of Jo Cox MP were not “ordinary circumstances”. A by-election had to be held, the date of which was not immediately known to the Commission; nor did the Commission immediately know which parties would be fielding candidates. The time available for the review of descriptions to be completed was short. I accept Mr Coppel’s observation that there is no question that the Commission did not reach its decision as speedily as it properly could, having regard to the fact that there were a number of descriptions for a number of parties that had to be reviewed. By the time the decision taking process had been completed, the initiation of the electoral timetable was imminent. In fact it commenced a week later. The writ for the by-election was moved on 15 September 2016. In accordance with the timetable prescribed in Sch.1 to RPA (see para 19 above), the notice of election was published on Monday 19 September and nominations opened the following day, Tuesday 20 September. Close of nominations was on 27 September. Polling day was on 20 October 2016.

Mr Tilbrook complained that not only was there no prior attempt to consult the Claimant, but that “the internal consultation seems to have been perfunctory” (skeleton argument, para 3). That plainly was not so. Indeed the views expressed by members of the Commission’s Registration Team and its Approval Board were so wide-ranging that the Claimant has not been able to suggest that it missed the opportunity to say something that was not said during the decision-making process. That is of some significance when assessing what is essentially a complaint of lack of fairness. So also is the nature of the decision. The Claimant’s candidate still had eleven other descriptions on the Register from which to choose. At no time has Mr Tilbrook, or anyone else on behalf of the Claimant, said what representations they would have made, had they been given the opportunity. When I asked Mr Tilbrook about this he said that they could have said that they did not think the description was offensive. Indeed, he said he would have said that it was offensive to say it was offensive. He did not know whether it would have made any difference. He said if they had been asked they might have said that they would not have used the description.

In support of his submission that the failure to give the Claimant an opportunity to make representations in advance of the decision made the decision unlawful, Mr Tilbrook referred to the case of R (on the application of Durand Academy Trust) v Office for Standards in Education, Children’s Services and Skills [2017] EWHC 2097 (Admin). In that case HH Judge McKenna (sitting as a judge of the High Court) quashed an Ofsted Report on the basis that the absence of any ability effectively to challenge the Report rendered the Complaints Procedures unfair and vitiated the Report (see paras 41-48). That decision does not in my view assist the Claimant. It concerned a settled process of Ofsted regardless of circumstances not to allow particular representations to be made. The restrictions in its Complaints Procedures did not permit a substantive challenge which could have resulted in the change of the decision. There is no statement of general principles in Durand that affects the present case.

I am satisfied that the failure to give the Claimant prior notification of the decision and the opportunity to make representations does not make the decision unlawful.

For the reasons I have given, none of the grounds of challenge succeed. Accordingly this claim is dismissed.