Refereeing elections

The ruling of Judge Richard Mawrey on the conduct of the late mayoral election in Tower Hamlets, repays reading in full. It is far from the usual dry analysis. Part of his preamble deserves wider circulation.

17 Before dealing with the law relating to election petitions, it is necessary briefly to rebut
the criticism made in certain quarters after the high profile case of Watkins v Woolas
(referred to hereafter as ‘Woolas’) in which the election of Mr Philip Woolas as Member of Parliament for Oldham East and Saddleworth in 2010 was set aside by an election court on the ground that Mr Woolas had committed an illegal practice contrary to s 106 of the 1983 Act (which will be discussed in detail later in this judgment).

18 The criticism is usually voiced in terms of ‘unelected judges unseating democratically elected politicians’, the obvious implication being that this process is itself undemocratic.

19 There are two answers to this criticism. First the resolution of disputed elections by the courts is not a power the judges have arrogated to themselves. It is a task laid upon them by Parliament, a task, what is more, that the judiciary originally resisted tooth and nail. As the history of election courts set out in Woolas in the Divisional Court shows, when, in 1868, it was proposed that election disputes should be referred to the courts, the then Lord Chief Justice, Sir Alexander Cockburn Bt (ironically the country’s leading expert in electoral law), wrote a stern letter of protest to the Lord Chancellor and earned himself an unflattering cartoon in Punch for his pains. All to no avail. The reason is obvious: if, as Parliament believed, and has continued to believe, politicians cannot be trusted to resolve election disputes fairly, then who is left but the judiciary? Election courts have thus lasted from 1868 to the present.

20 The second reason is that the criticism itself begs the question. If a candidate is elected in breach of the rules for elections laid down in the legislation, then he cannot be said to have been ‘democratically elected’. In elections, as in sport, those who win by cheating have not properly won and are disqualified. Nor is it of any avail for the candidate to say ‘I would have won anyway’ because cheating leads to disqualification whether it was necessary for the victory or not. In recent election cases, for example, it has been proved that candidates were elected by the use of hundreds (in Birmingham, thousands) of forged votes: would anyone seriously claim that those candidates had been ‘democratically elected’?

It is an answer to those of my Labour-supporting friends who protest that elections can be overturned "on a whim", "if the losers don't like it". (Some whim; the legal costs are high.)

Mr Mawrey's final paragraph has even wider resonance:

Events of recent months in contexts very different from electoral malpractice have starkly demonstrated what happens when those in authority are afraid to confront wrongdoing for fear of allegations of racism and Islamophobia. Even in the multicultural society which is 21st century Britain, the law must be applied fairly and equally to everyone. Otherwise we are lost.