Electoral System in UK Law

Flexibility and discretion are all very well but there is merit too in certainty, not least in the field of electoral challenge. It is undesirable to have someone serving in a public office with doubts surrounding the legitimacy of his election.

An example discussed in oral argument which provides a good means of testing these conclusions is a case involving spending for referendum purposes on travel and accommodation. Suppose that during a referendum campaign volunteers affiliated with a particular campaign organisation (which is a permitted participant) travel from London to Birmingham by rail to attend a public meeting and stay in a hotel overnight.

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 appears to me that this question had a number of aspects to it: did rule 47 apply where the votes which needed to be counted were themselves uncounted votes?

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.

That question obviously does not have to be answered in terms of statistical evidence or specific evidence of actual cases of deterrence. In practice the claimant's assertion about the potential effect of the 15 year rule on free movement is very difficult to demonstrate by any means, because it does not square with ordinary human experience.

On the contrary, I found difficulty in following how a reasonable reader in the circumstances specified in Jeynes could be expected to understand the "scandal" in question to be confined to the mere fact that Mr Waterson made a claim in respect of a mortgage and decoration.