Electoral Campaigns in UK Law

Some consideration was given during argument to the standard of proof required to establish a breach of the subsection. If a person is found guilty of a corrupt practice under section 115 he is liable to be prosecuted on indictment. Furthermore he may be the subject of severe electoral disqualifications under section 160(4). If there is a prosecution there is no doubt that the case must be proved to the criminal standard of proof.

Mr Gough was directly involved in the decision to make the application under rule 47. Mr Field told him that he agreed to the application being made if it could properly be done. The question which Mr Gough had to decide was whether, in the circumstances which had arisen, it was permissible to apply under rule 47. It was incumbent upon Mr Gough, who had been asked to advise about the feasibility of using rule 47, to address all these questions.

Mr Gough came to the conclusion that on balance an application could be made and that it could be made by the returning officer. It will be apparent from the findings which I earlier made as to the applicable electoral law that it is my view that Mr Gough reached the wrong answers on each of the above questions. But Mr Moloney rightly says that it does not necessarily follow that Mr Gough was negligent.

Generally speaking, public bodies should be kept to their promises. A public body should not be permitted to resile from a legitimate expectation which it has created in the minds of those members of the public to whom the undertaking which gave rise to the expectation was addressed, or who were affected by the practice which confirmed that expectation, and from which it would be an abuse of the process to resile.

The reality is that Councillors must be trusted to abide by the rules which the law lays down, namely that, whatever their views, they must approach their decision-making with an open mind in the sense that they must have regard to all material considerations and be prepared to change their views if persuaded that they should.

In a society based upon the rule of law and the separation of powers, it is necessary to decide which branch of government has in any particular instance the decision-making power and what the legal limits of that power are. That is a question of law and must therefore be decided by the courts.

It is true that the severity of this rule is tempered by a discretion to allow the issue to be re-opened in subsequent proceedings when there are special circumstances in which it would cause injustice not to do so: see Arnold v National Westminster Bank plc [1991] 2 AC 93. As Lord Keith of Kinkel said (at p 109), the purpose of the estoppel is to work justice between the parties.