21 Oct 2014

Judges could overturn a Tory victory in Rochester, lawyers say

Are the Conservatives about to come a huge cropper with David Cameron’s extremely expensive primary election in Rochester?

A couple of Britain’s top election lawyers say the primary which the Conservatives are currently holding to pick their candidate for the Rochester and Strood by-election could open the by-election result to serious challenge in an election court.

Last week I argued that the Conservative primary, the result of which will be announced on Thursday, might breach the spirit of the legal spending limits which are imposed on parliamentary elections.

In particular I argued that the current exercise might be construed more as promotion of the Tories soon-to-be-unveiled candidate, than as an genuine operation to give voters more choice.  I pointed out that there are only two contenders, where in previous Conservative primary contests there have usually been three of four people in contention.

I have now consulted two of Britain’s leading experts on election law, both of whom have been involved in high profile cases.  Neither wanted to be named but both believe that the primary process could open the Conservative contender to an election petition in the event of them winning.  And, if the lawyers are right, then the result might be overturned by an election court.

Primary elections don’t come cheap, which explains why they don’t happen very often.  I think that Rochester is only the third time that a party has ever conducted a full postal primary involving a constituency’s 70,000 or so voters.

The two previous postal primaries – conducted by the Conservatives in Totnes and Gosport in 2009 – were estimated to cost about £35,000 to £40,000 each, though that figure was queried.

Spending limits

Much, if not most, of this  spending must be attributed to the cost of sending out to each voter leaflets about the candidates, a ballot paper, and a freepost envelope to return the vote.  But postage costs have risen hugely since 2009 – from 30p to 53p for a second class stamp for example.  The Tories would get a bulk discount, but presumably bulk costs have risen by a similar proportion.

And the Conservatives seem to be spending a vast sum of money just on this primary election, though they refuse to say how much. Over the past three weeks, they’ve sent three separate mailings to each of the 77,000 or so voters in the constituency.

According to Ukip, the first mailing involved a letter from David Cameron and glossy A3 leaflet about the new policies announced at the Conservative conference in Birmingham. The second mailing involved another letter from the prime minister which named the two possible candidates.

The third mailing included a letter from Conservative HQ, a piece of paper with biographical details which doubled up as a ballot paper, and a freepost envelope in which to return the voting paper. If one includes the envelopes in which the mailings were sent to voters, that means nine items of paper per voter, or almost three quarters of a million items of paper altogether.

If that wasn’t costly enough, all the postage has been first class, not second.  The mailings alone must have cost at least £100,000, before any expenditure related to counting the votes. In addition, over two successive Saturdays, the Conservatives distributed two A3 coloured leaflets to each of the 45,000 houses in the constituency, talking about their primary election. And there was also a full-page ad in the local paper, as well as the cost of holding a hustings public meeting.

In by-elections each party is limited to spending £100,000 on their campaign.  In Newark (picture, below) the Tories claimed to have spent more than £97,000, just within the limit, and the party has pledged to fight an even more energetic and extensive campaign in the Rochester by-election.

Voters Go To Polls In Newark By-Election

The Tories insist that the costs of their primary to choose their candidate need not be included within that spending limit.  They’re relying, they say, on guidance from the Electoral Commission, which they say stipulates that spending doesn’t count until a candidate is announced.

Ukip, on the other hand, claim they’ve taken legal advice – from a top QC – that says the Tory primary should count towards election costs.

In law, election spending is broadly linked to each candidate.  The crucial point here is the definition of what constitutes a “candidate”.  The Conservatives say that the two women in their primary election are not candidates, and that they won’t have a candidate until Thursday. Therefore, they argue, they can’t incur election spending until then.

Expenses clock

The law on this issue is laid down by the representation of the people act 1983, and in particular part II, section 90.

One part would seem to give the Conservatives some confidence.  Section 90ZA (1) states that election expenses are what: “is used for the purposes of the candidate’s election after the date when he becomes a candidate at the election”.

So indeed, it seems, the expenses clock doesn’t start ticking until they announce their candidate on Thursday.

However, read on.  A few lines later, section 90ZA (5) says that the act’s earlier reference to a candidate: “includes (where the context allows) a reference to a person who becomes a candidate at the election after the expenses are incurred.”

So it seems money spent before the candidate is picked might count as an election expense, and that the spending clock may actually have started ticking when David Cameron wrote to every voter last week asking them to take part in the party’s primary.

The act makes it clear that expenses include unsolicited material distributed to voters, which is pretty much what voters have received from Mr Cameron.


Legally, I’m told that the key word here could be “context”, as “context” might include the very issue I raised in my blog last week. Was the primary election largely carried out in order to promote the eventual candidate by pumping out to every voter favourable literature about her (and the losing alternative) and to bring her virtues to the attention of voters?

And it’s Section 90ZA (5) which leads my two lawyers to think the Tories are skating on very thin ice.  One argues that the whole cost of the primary might have to count as an election expense.  Or it might be half the cost, as there are two candidates in the primary contest.

It’s quite a tricky issue for the election lawyers, who are venturing into totally uncharted territory.  And I must stress that the Conservative Party cite Electoral Commission guidance that spending doesn’t start until a candidate is picked.

Heading to court?

I’m surprised that for such a bold, unprecedented step, they should rely so much on the Commission, and haven’t done what Ukip did, and taken independent legal advice.  For such a bold move, it does seem a little, er, reckless.

And if Ukip loses to the Tories in Rochester, and the result is close, it could all end up in court.  Ukip would have to wait until the end of December – 35 days after the result – to confirm that the primary is not included on the Tories’ expense return, and also to see if they have left any leeway for it to be added on without breaching the £100,000 spending limit.

Then they’d have to petition the high court for the result to be overturned at a hearing of the election court.  That might entail a series of juicy court cases in January and February.

If the Tories’ spending in Newark is any guide, inclusion of the primary expenses could see the party 100 per cent over the limit.  If the election judges agree with the interpretation of the lawyers to whom I’ve spoken, then such a discrepancy would be hard to brush aside.

What a mess Rochester could prove to be – with David Cameron heavily implicated in the whole process.

Follow @MichaelLCrick on Twitter.

20 reader comments

  1. Lydia says:

    Actually there have been 4 mailings from the Tories: first one included a survey to send back with a freepost envelope, second one was a reminder about the survey, third one was to announce the postal primary, fourth one was the postal primary ballot paper, with another freepost envelope. I know this because I live in Rochester and received them all.
    Most people I know are bemused by the point of holding a postal primary, and some people I know (including myself) chose to send the ballot paper back blank, not being Conservative voters.

    1. Mark says:

      Aren’t you the lucky one! My household has just had the 2 letters plus the Primary voting one. My reminder about the survey came 1 day after the original!

    2. margaret Smith says:

      Just think if http://www.peoplebeforeprofit.org.uk got just 25% of Media coverage UKIP gets, they would be in with pulling of a BRADFORD shock win.
      Remember UKIP, SNK were not so long ago not even listed as crediable.. How different times have changed. People Before Profit will in 10m years be as large as the other partys, because they offer a real alternative, as people check them out, they will sdtack up the votes, as they do in South London..

  2. Ellie says:

    Would the Tories not argue that the original postings from mark reckless before he moved to ukip (about a week before he moved parties he sent a letter out to all people in the area saying how wonderful he is, and a survey to say interest) was him starting his campaign, that was pretty dirty tactics from him as he wasn’t a ukip member but was using Tory money to promote himself

    The first 2 letters from the Tories were before candidates had been announced

    I think both are trying to push limits

    Labour and lib dems are interesting in their silence

    1. Brimstone says:

      At the time Mark Reckless sent out his communication no election had been called. There were no candidates, he was the sitting MP and presumably this communication was not on electoral but constituency matters.

  3. David Boothroyd says:

    One thing to consider, if the Conservatives win and UKIP petition against it, is that it will take some time to set up the court hearing. In the case of Oldham East the election was in May and the hearings were in the middle of September, with judgment given on 5 November. This is a more complex issue.

    Rochester and Strood polls on 20 November. Any petition still outstanding when Parliament is dissolved on 30 March 2015 automatically lapses. I would be surprised if it can all be completed before the dissolution.

  4. walter bowden says:

    One can SMELL the Tory leaders panic here in Sheffield, a smell THAT IS CLEARLY informing voters how FEAR is driving CAMERON to the verge of something he is yet to discover, the British people have FINALLY awoken WITH A TRUE POLITICAL LEADER FOR THE UK IN THEIR SIGHTS; UKIP for the UK!

    1. Dorothy says:

      Have you seriously not noticed thatUKIP are just very right wing Tories who want to privatise the NHS etc?

      1. Brimstone says:

        You have obviously not been paying attention otherwise you would know that the only people proposing to charge to see your GP is Labour. Labour have already privatised much of the NHS as did John Major’s government.

      2. Tom Hollings says:

        Dorothy, please get your facts correct before posting. See our manifesto. This is an extract from a leaflet called “Policies for People”.
        “UKIP will ensure that the NHS is free at the point of delivery and time of need for all UK residents. We will stop further use of PFI in the NHS and encourage local authorities to buy out their PFI contracts early where this is affordable…”
        For those who do not know, PFI is part of the wider programme of privatisation and financialisation.

  5. Frank Fisher says:

    The Electoral Commission is in LiblabCon’s pocket anyway – bunch of establishment stooges; I doubt they will kick up a fuss. Sending promotional material after a by-election has been triggered is *clearly* campaigning, but the fake Tories will get away with it.

  6. Lydia says:

    True, Reckless took his own ‘poll’ of constituents, by post, before making the switch (questions mainly focusing on EU and immigration, funnily enough). He even sent out thank you letters following the survey, on his House of Commons paper.

    As for Labour and Lib Dems, they’ve both been round our area, posting leaflets and door knocking, but clearly they don’t have the same funds or central backing as the Tories and UKIP.

  7. Holly53 says:

    With regard to the 90ZA (5).

    Would that only include the money spent on the successful candidate, and not both, as they both can not be successful, and only one of them would actually be a candidate at the election?

    Confusing myself now FGS.

  8. icini123 says:

    The campaign started as soon as the two possible candidates were announced. Two very similar women. Huge amounts of money has been spent promoting them both. The primary thing is just an attempt to delay selecting one of them for as long as possible, it’s completely against the understood spirit of electoral law, though it may be within the letter of it.
    What’s being demonstrated here is a Tory willingness to stretch the truth for electoral advantage.
    What else are they up to if they’re willing to attempt this sort of trick ?

    1. Demon says:

      That is NOT correct, please read the electoral rules, the campaign starts once the Candidate is elected and announced, not when candidates are up for selection… if you don’t believe me, please go to the Electoral Commission website, all the rules for all parties, candidates, agents, returning officers etc,, is all available in .pdf format for you to download and read.. there are different rules for different types of elections and this is a By-Election and the mistake being made is that campaigning for a GE can start 365 days before, however, this is a different type of election and therefore THOSE rules apply and not the GE Rules despite being within the GE Campaign Period, if anything, the Tories can offset the 4 leaflets sent out as Party Campaign Leaflets for the GE and NOT the By Election.

  9. Demon says:

    Actually the Tories are correct if you look closely at the Electoral Commission Guidelines… expenses incurred by a Political Party in selecting a Candidate are NOT included in the costs of a Campaign. The costs incurred by the parties only start when a candidate is selected and I know this because I have worked on several campaigns for more than one party over the years. UKIP and their legal counsel can interpret the law how they like, but if the guidelines are adhered to, the Tories are doing nothing wrong… UKIP just can’t match their spending and so want to divert attention away from the facts.

    If anyone wants to have a look at the Guidance for Candidates and Agents in Local Elections, Part 4. Section 3, Paragraph 1.2, it quite clearly states that “Election spending Limits apply from the date a person officially becomes the Candidate”, so no ambiguity there, very clear.

    It is obvious costs will be incurred selecting that candidate, just as it would cost an employer to find a new member of staff…. but his tax liabilities would not commence UNTIL that member of staff was ‘hired….

  10. David Boothroyd says:

    Demon is correct in saying that expenses on candidate selection are not normally considered election expenses. But this isn’t a normal situation and it isn’t an explicit legal exemption, more a judgment call. There is nothing in law that says the parties have carte blanche to spend what they like on candidate selection, including promoting alternative candidates to the electorate at large, and it definitely won’t be returnable as an election expense.

    If it were to come to trial the judges would probably consider how close the selection was to the election, and whether the party was spending on the selection process with the intention of helping their cause in the election. On both of these it is certainly arguable that what the Conservatives are doing in their Rochester and Strood ballot is spending money with the intention of procuring the election of a particular candidate, even if they do not yet know who that will be.

  11. Scary Biscuits says:

    Demon, the guidance is mentioned in the article above. Did you not read this before commenting? Also, you may wish to note that guidance is just that, guidance. It is just some guy’s opinion. It is not law. That’s why UKIP took independent advice because you can be sure the Tories would have been complaining if UKIP were as far over the spending limit as they are.

    1. Demon says:

      You missed the point I made earlier…

      The leaflets they have sent out will come under the ‘GE’ Budget as they ONLY promote Party Policy, the do NOT endorse a ‘Candidate’, the ‘GE’ Budget came into effect on the 16 May 2014 as the Election is due 15 May 2015.

      This is a ‘By Election’, effectively a ‘Local Election’ and therefore the spending does NOT commence until one of the Candidates is ‘elected’ and ‘announced’ and at that point, then the Agents and the Candidates Budget commences.

      Example 1: If a Candidate or their Agent issues a Leaflet promoting the ‘Candidate’, then 100% of the cost is on their Budget.

      Example 2: If a Candidate or their Agent issue a Leaflet promoting the ‘Candidate’ and ‘Party Policy’, then the costs will be split 50/50 between the ‘GE’ Budget and the ‘Candidate’ Budget.

      I agree the ‘policy’ is guidance, but it this guidance that all Parties/Agents/Candidates & Returning Officers abide by, so at the end of the day, if the Returning Officer when he receives the accounts believes they have done something ‘untoward’ in relation to expenditure, they are reported to the Electoral Commission who investigate and take appropriate action.

      There is no ambiguity in the Guidance, just some people who don’t like it want to stir it up and create a news story as they then get publicity FREE instead of paying for it as part of their election costs…..

  12. Andrew Price says:

    It would seem that the primary has been a hugely expensive damp squib. I wonder why the Tories will not tell us the number of spoilt ballot papers in the overall total? No matter , even if all the ballot papers returned were actual votes , for the Conservatives to be in line to be winning , the returned votes should have been well north of 10,000 votes. UKIP are on course to win a historic by election which will set in train many consequences.

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