Electoral Commission defeats Labour Party’s claim for judicial review

31 Mar 2021

Public Law and Judicial Review

Philip Coppel QC and Olivia Davies successfully defended the Electoral Commission against the Labour Party’s claim for judicial review.

The claim concerned registered descriptions – phrases that political parties can apply to the Electoral Commission to add to their entry on the register. Registered descriptions can be used on nomination papers and ballot papers at elections. On 25 March 2021 the Labour Party made an application under s 30(1) of the Political Parties, Elections and Referendums Act 2000 to add two descriptions to the register. These new descriptions referred to its new Scottish leader, Anas Sarwar. It wanted the descriptions included ahead of the close of nominations (on 31 March 2021) for the Scottish Parliamentary elections on 6 May. The Electoral Commission had advertised in October 2020 that such applications should be made by 31 January 2021 if parties wanted to ensure they would be determined by 31 March 2021.

By the time the Labour Party made its application there remained less than a week for the Electoral Commission to determine it before the nomination paper deadline. On 25 March, the Electoral Commission therefore informed the Labour Party that while it would consider the application in accordance with its normal published procedure, which included allowing time for public consultation, it would not be possible to reach a conclusion by 31 March.

On 29 March, the Labour Party issued a judicial review claim seeking an order to compel the Electoral Commission to determine its application by 11am on 31 March so that it could use the descriptions referring to Anas Sarwar on its ballot papers at the May election. The claim was brought on two grounds: that the Electoral Commission had breached its statutory duty to determine the application and that it had unlawfully fettered its discretion by not determining the application by 31 March 2021.

Mrs Justice Ellenbogen dismissed the Labour Party’s claim on both grounds, finding that the Electoral Commission had not made a decision to refuse to determine the application before the closure of nominations for the May elections. The fact that the Labour Party would not be able to use the descriptions on their ballot papers was a consequence of the Electoral Commission’s decision-making process not being able to be concluded by 31 March. However, that consequence did not render the decision making process unlawful. The Electoral Commission had simply decided to adhere to its standard process, and that process constituted neither an unlawful precondition to an application being granted, nor a delay in decision-making. The Electoral Commission’s thorough decision-making process, including public consultation, was necessary given the need for balance and impartiality in the Electoral Commission’s exercise of its functions. It was clear from the fact that the Electoral Commission had already granted 11 applications made after the 31 January, but before 25 March, that it had not fettered its discretion. The Electoral Commission had responsibly and transparently warned parties of the consequences of making a late application.

Mrs Justice Ellenbogen ordered the Labour Party to pay all the Electoral Commission’s costs.

Mr Fraser Campbell and Mr Will Bordell of Blackstone Chambers appeared for the Labour Party.