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

The Electoral Commission’s duty to maintain the register of political parties includes securing that existing entries continue to satisfy current statutory requirements. It may therefore remove a non-compliant description without an application by the party.

The assessment of whether a description is offensive is context-sensitive. A decision is lawful if the Commission could reasonably conclude that, in the circumstances, a significant number of voters would understand the description in an offensive sense. The intensity of rationality review depends on the nature and gravity of what is at stake. Procedural fairness may not require prior representations where electoral urgency would materially prejudice the statutory purpose of the register.

The claimant, a registered political party, challenged the Electoral Commission’s decision under [2018] EWHC 251 (Admin) to remove one of its twelve registered descriptions, “English Democrats – England Worth Fighting For!”, under the Political Parties, Elections and Referendums Act 2000.

The decision was taken shortly before the Batley and Spen by-election, following the murder of the sitting Member of Parliament. Permission was granted on grounds of vires, rationality and lack of consultation. The issues were whether the Commission had power to remove an existing description, whether its conclusion that the description was offensive was irrational, and whether fairness required prior representations.

1. Vires. The claim was dismissed. Section 23(1) of the Political Parties, Elections and Referendums Act 2000 requires the Commission to maintain the register both by keeping its form and by ensuring that its contents comply with current statutory requirements. The power is separate from the powers governing applications for registration and applications to alter an entry. “Maintain” therefore includes removing an existing entry which no longer satisfies the statutory test.
2. Rationality. The Commission was entitled to conclude that the description was offensive under s.28A(2)(c). The word “fighting” could bear both a political and a physical meaning. In the context of the forthcoming by-election and the recent politically motivated murder, the Commission could reasonably find that a sufficiently large number of voters would associate the word with physical force rather than political campaigning. The review was careful and the decision-maker considered the competing views.
3. The intensity of unreasonableness review follows a sliding scale according to the nature and gravity of what is at stake, applying R v Department for Education and Employment ex p Begbie. No heightened review was justified. Only one of twelve descriptions had been removed, the description’s significance was confined to nomination and ballot papers, and a fresh application could be made if circumstances changed.
4. Fairness. Prior consultation was not required. Although the Commission ordinarily gives notice and an opportunity to make representations, exceptional electoral circumstances and the imminent timetable created a public-interest urgency. The internal review was substantial, the party retained eleven descriptions, and no material representation was identified which could have affected the decision. R v Birmingham CC ex p Ferrero and R v Life Assurance Unit Trust Regulatory Organisation, ex p Ross supported the conclusion that urgency may displace a prior hearing requirement. R (on the application of Durand Academy Trust) v Office for Standards in Education, Children’s Services and Skills was distinguishable because it concerned a settled complaints process that prevented an effective substantive challenge.

All grounds failed. The claim was dismissed.

Not stated in the judgment.