R (Electoral Commission) v Westminster Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Walker |
| Judgment Date | 22 January 2009 |
| Neutral Citation | [2009] EWHC 78 (Admin) |
| Docket Number | Case No: CO/9277/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 January 2009 |
[2009] EWHC 78 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Before: The Hon Mr Justice Walker
Case No: CO/9277/2007
Mr Michael Beloff QC and Mr Jasbir Dhillon (instructed by the Treasury Solicitor) for the claimant
The defendant did not appear and was not represented
Mr Alan Newman QC (instructed by Moreland & Co) for the interested party
Hearing dates: 9/9/08, 27/10/08
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Paul Walker, 5 February 2009
Mr Justice Walker:
Introduction
These judicial review proceedings concern the forfeiture by a Magistrates' Court of donations to a registered political party. Restrictions on such donations are found in Chapter II of Part IV of the Political Parties, Elections and Referendums Act 2000 (“PPERA”). References in this judgment to sections, Chapters, Parts and Schedules are, unless the context otherwise requires, references to PPERA.
Sections 58–60 in Chapter II make provision for forfeiture in relation to donations made by impermissible or unidentifiable donors. I have been told by counsel that there is no previous reported case dealing with ss 58–60, and that the outcome of the present case may affect what will happen in a number of potential or pending applications for forfeiture. In these circumstances I think it desirable at the outset of this judgment to explain the role of this court on judicial review and to summarise my conclusions as to the principles governing this particular power of forfeiture.
Role of the Administrative Court on judicial review.
An application for judicial review in this court usually involves assertions falling under one or more of three heads. The first head is that the body under review misunderstood or misapplied the law. This will include taking irrelevant considerations into account or leaving relevant considerations out of account. It will also include breaches of the Human Rights Act 1998 in cases where it requires compliance with certain provisions in the European Convention on Human Rights and subsequent protocols. The second head concerns a failure to adopt a fair procedure. It is convenient to include under this head a failure to give reasons where, or to the extent, required. The third head is that the decision under review went beyond the range of decisions reasonably open to the decision-maker. Other possible grounds of review have been canvassed, but it is not necessary to mention them for present purposes.
Judicial review is often contrasted with a statutory appeal. A court dealing with a statutory appeal must identify from the statute the nature of its role. This will often be a role going beyond the limited task of the court on an application for judicial review.
In s 58 Parliament has given to the Electoral Commission power to seek a forfeiture order and to the Magistrates' Court power to make such an order against a registered political party. In s 59 it has given the registered political party, where a forfeiture order is made, a right of appeal. In England and Wales this right of appeal lies to the Crown Court. No such right is given, however, to the Electoral Commission in the event that the Magistrates' Court refuses to make a forfeiture order or makes an order in an amount less than that sought by the Electoral Commission. The result is that the Electoral Commission's only means of challenge is by way of an application for judicial review.
Summary of general conclusions
Below is a broad summary of my general conclusions. In each case I identify in brackets the paragraphs of this judgment where the conclusion is set out.
(1) One of the aims of PPERA as a whole is to enhance and maintain the integrity and propriety of and public confidence in the political process. (para 62)
(2) A motive for many of the provisions found in Part IV, including ss 54 to 60, is the undesirability of foreign donations. Political parties are involved in the democratic process taking place within the UK, what happens here is the concern of those who live and work here, and the approach taken by Parliament in this regard is motivated by an assessment that political parties should not be entitled to donations made by persons and corporations who have no genuine stake in the UK. (para 78)
(3) Practical considerations led Parliament to reject a recommendation that mere entitlement to be on an electoral register should qualify an individual to be a permissible donor. Instead as regards individuals Parliament adopted a policy that there should be a ban on donations by those not on an electoral register. (para 78)
(4) A specific purpose of s 54 is to give effect to that policy by (1) prohibiting parties from accepting donations from those who are not, at the time of receipt by the party, permissible donors and (2) defining an individual as a permissible donor only if that individual is registered on an electoral register. The main purpose of the forfeiture power in s 58(2) is to provide a method of enforcing s 54. It also seeks to deter future breaches of s 54, whether by the party in question or by others. (paras 44 and 81)
(5) Under s 58(2) the first stages for the Magistrates' Court involve determining two factual matters. It must first decide whether, in relation to any particular alleged donation, what has been brought to its attention by the Commission did indeed amount to a donation which by virtue of s 54(1)(a) or (b) the party was prohibited from accepting. If so it must secondly decide whether the party nevertheless accepted the donation. (para 49)
(6) If those factual matters are resolved against the party, then the final stage under s 58(2) is for the Magistrates' Court to consider whether to make a forfeiture order. At this final stage it must proceed on the basis that its task is to advance and not to frustrate the policy and objects of PPERA and, in relation to donations by individuals, the specific purpose of s 54 identified at (4) above. (para 43)
(7) This does not mean that there is a presumption in favour of forfeiture; the Magistrates' Court should exercise the power of forfeiture where this would advance the statutory purpose in a manner which would not be disproportionate. (para 71)
(8) If an ambiguity arises as to the true construction of a statutory forfeiture power such as s 58(2) then regard must be had to the common law principle that a statute should not be construed so as to interfere with property rights unless it is clearly intended to do so. (para 44)
(9) The Magistrates' Court must strike a fair balance between the rights of the individual and the public interest. There must be a reasonable relationship of proportionality between the means employed and the aim pursued. (para 48)
(10) In relation to any one donation, the power under s 58(2) is all or nothing: either there is an order forfeiting the amount of the donation or there is not. Accordingly, applying the principle at (9) above, if the Magistrates' Court considers that it would be disproportionate to order forfeiture of an amount equivalent to the value of the donation in question, then an order under s 58(2) cannot be made in relation to that donation. (para 117)
(11) At a hearing under s 58(2) the cogency of the submissions made on behalf of the Commission will fall to be considered and tested in the same way as any other submissions. (para 55)
(12) Subject to the above, the Magistrates' Court may decide, within a range of what is reasonably open to it, which potentially relevant factors it regards as relevant to a particular case and how much weight should be given to them: see the speech of Lord Bridge of Harwich in R v. Tower Hamlets LBC, ex parte Chetnik Developments Ltd [1988] 1 A.C. 858 at p. 873G. Factors which PPERA, on its true construction, does not rule out as a matter of law can be described as “potentially relevant” factors. Applying Lord Bridge's analysis in conjunction with the principles of proportionality described in the citations at paragraphs 47 and 48 below, some potentially relevant factors can be mentioned on the basis that they are not exhaustive and that whether they can reasonably be regarded as relevant may depend on the particular circumstances. At a general level potentially relevant factors include the type and degree of harm caused by the breach of s 54(1), the extent to which the party's actions or inaction deserve blame, concerns as to what may happen in the future, and the stance and current position of the party. At a more specific level, in relation to type and degree of harm there might be a need to examine the extent to which breach of s 54(1) means that in fact the party now has a benefit which it ought not to have had. A potentially relevant factor is whether the party has gained from a donation by foreign donor. When considering the relevance and weight of the presence or absence of this factor the Magistrates' Court must bear firmly in mind that Parliament's policy, for the common good, is that there should be a ban on donations by individuals not on an electoral register. In relation to blame potentially relevant factors include the following. Did the party know at the time of acceptance that the donation was impermissible? Ought it to have known? Has the party been in breach of s 54(1) in relation to previous donations by this...
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