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

The claimant challenged the Electoral Commission's decision under s.23 of the Political Parties, Elections and Referendums Act 2000 (PPERA) to remove one registered party description as offending the statutory test in s.28A(2)(c) PPERA. The court held that the Commission had vires under s.23 to maintain and, where necessary, amend the content of the Register; that the Commission's assessment that the description "English Democrats – England Worth Fighting For!" could reasonably be perceived as condoning or calling for violent means in the specific context of the Batley and Spen by-election was one it could rationally reach; and that, given the exceptional and urgent electoral circumstances following the murder of Jo Cox MP, the Commission was entitled to make the decision without prior consultation. The claim was dismissed.

Background and parties:

• The claimant, the English Democrats Party, is a registered political party. The defendant is the Electoral Commission, charged by PPERA with maintaining the Register of political parties for Great Britain.
• The Commission removed from the Register one of the claimant's twelve registered descriptions, stating it was offensive under s.28A(2)(c) PPERA in the context of the forthcoming Batley and Spen by-election.

Nature of the claim and relief sought:

The claimant sought judicial review of the Commission's decision of 7 September 2016 seeking quashing of the removal on grounds of lack of vires, irrationality and failure to consult.

Issues framed by the court:

1. Whether s.23 PPERA authorised the Commission to amend entries on the Register without the party's consent (vires).
2. Whether the decision to remove the description was irrational or otherwise unlawful.
3. Whether the Commission unlawfully failed to consult the party before removing the description.

Facts and decision-making context:

• The Commission had revised its procedures after a previous erroneous registration and had carried out targeted reviews of identifiers. In the aftermath of Jo Cox's murder the Commission reviewed identifiers of parties indicating an intent to stand in the Batley and Spen by-election.
• The Commission's internal Approval Board and Registration team considered the claimant's descriptions; views were mixed only on the description containing the word "fighting". The Commission concluded that, in the specific and sensitive context, the primary violent connotation of "fighting" would predominate in the minds of a substantial number of voters and that the description was offensive for ballot-paper purposes.

Court's reasoning:

• Vires: s.23(1) gives the Commission the function of maintaining the Registers and the court accepted that to maintain a register requires ensuring entries meet current statutory requirements; the Commission therefore had power to remove non-compliant entries.
• Rationality: the court applied a conventional Wednesbury/unreasonableness review on a sliding scale and concluded the Commission's careful review and contextual assessment (including the murder of Jo Cox and contemporaneous tensions) justified the view that the description could be offensive. The removal of one of twelve descriptions, leaving other England-themed descriptions on the Register, and the availability of re-application pointed away from a need for intensified scrutiny.
• Consultation: the court accepted that ordinarily the Commission would invite representations, but held that exceptional urgency and public interest in the immediate electoral context justified omitting pre-decisional consultation. The decision to act without prior consultation did not render the decision unlawful.

Disposition: The claim was dismissed and none of the grounds of challenge succeeded.

The claim is dismissed. The court held that (1) s.23 PPERA authorises the Commission to maintain the Registers by ensuring entries meet current statutory requirements and therefore to remove non-compliant descriptions; (2) the Commission's conclusion that the description "English Democrats – England Worth Fighting For!" would be offensive in the specific context of the Batley and Spen by-election was within the range of reasonable judgments; and (3) given the exceptional and urgent electoral circumstances following the murder of Jo Cox, the Commission was entitled to make the decision without prior consultation.