Election Update - 7th May 2010
The waiting game
An officially hung parliament, hundreds of voters being turned away from polling stations, a plane crash and even street-fighting from a BNP candidate have provided the most dramatic election for a generation. A media storm has been gathering around the three party leaders with the nation on tenterhooks in anticipation of the horse-trading to come.
The Conservatives managed to win more seats than at any other election in the past 80 years, albeit from a low base, but a stronger-than-expected showing from Labour and the Liberal Democrats suffering from the ‘three-party squeeze’ has left the colour of the next government far from definite.
This afternoon Cameron spoke out for the benefits of a ‘confidence and supply’ arrangement under a minority government before going on to explicitly offer the prospect of talks and even a power sharing deal with the Liberal Democrats. He spelt out the policy areas the party would not compromise on, such as immigration and defence, but also spoke of the policies on which the two parties shared common ground. He even touted the idea of electoral reform, albeit restricting the offer to a parliamentary committee to look into reform of the voting system.
This was in stark contrast to Brown’s cards on the table offer of ‘immediate legislation’ on electoral reform in return for Lib Dem support. Whether Cameron would able to sell the idea of voting reform to his party is another matter altogether, as indeed would be whether Clegg could sell the Tories’ package to his party faithful. Given that both parties have lost seats, a Labour/Liberal Democrat deal would be less publicly credible but, in any event, such a combination would not deliver a majority anyway and would likely require auxiliary deals with some of the nationalists or other smaller parties.
Brown and Cameron have left the ball in Clegg’s court for now. In a topsy-turvy campaign, the Lib Dems now find themselves with more potential power than ever before despite the hugely disappointing showing. It is a decision that could have huge implications for the future of the party.
I wasn’t allowed to vote - see you in court?
After a frenetic campaign in which we were told that every vote would count, election night TV viewers were confronted with images not usually associated with British elections, those of lines of voters being turned away from polling stations. In cities across the country voters mounted protests after being denied the right to vote, in at least one case because a polling station had ran out of ballot papers – an astonishing revelation for anyone who assumed that there would be a ballot paper for every person on the electoral register.
The Parliamentary Election Rules say that polling must conclude at 10.00 pm. In order to ensure that people got the chance to vote some Presiding Officers applied that rule pragmatically by crowding waiting voters into the polling station and quickly issuing ballot papers before the clock struck 10. But in some places the polling station doors were simply shut on waiting voters, leading to protests, sit-ins and the intervention of the police.
The Election Rules require Returning Officers to provide a “sufficient number” of polling stations and to appoint “such clerks as may be necessary for the purposes of the election”. Those people who tried to vote but were unable to do so because of inordinate delays at polling stations could certainly argue that those Election Rules were not met and, as such, that the election in question was not conducted in accordance with the law. But can they take it further than that?
Election results can be challenged in the High Court using the ‘Election Petition’ procedure under the Representation of the People Act 1983, but the petition has to show not only that something went wrong but also that it adversely affected the outcome of the election (what the law describes as “undue election” or “undue return”). In other words, the court would not intervene where several hundred people were prevented from voting but the winning candidate had a majority which exceeded the votes in dispute.
Participation in elections is also protected by Article 3 of the First Protocol to the European Convention on Human Rights and, consequently, individuals may be able to sue for breach of that Article under the Human Rights Act 1998. However, that is also not as straightforward as it seems. The Convention requires States “to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”. Fundamental failings that prevent free and fair elections from taking place are one thing but the Convention does not provide a right to ‘freedom from queuing’. It is unlikely that the courts would consider the Convention to have been breached simply because, for example, a voter who did not want to queue to vote earlier in the evening then returned to the polling station when it was too late to vote.
The Electoral Commission has already promised an inquiry and the “what might have been” analysis of those seats where such problems occurred will undoubtedly be part of the media coverage in the coming days, but a flurry of court cases seems highly unlikely.
