UK election 2010: polling irregularites

I did not expect to be returning from my recent stint as part of an election observer team in Sudan (see last blog entry) to find my services might have been put to use in the UK as well. But I was wrong.

Insufficient ballot papers for the voters, voters names not found on the electoral register, people unable to vote due to slow processing before ballot closure, inconsistent decisions on procedure by polling staff faced with difficulties : all these things happened in the UK election last night, variously in Sheffield, Leeds, Liverpool and London, being our major conurbations. And we did not even have the obvious remedy to hand which the Sudanese government used when faced with the same issues, namely extending the period of election (in their case from 3 to 5 days, but the country is 10 times our size, is predominately rural and has nothing like our infrastructure).

It does our country no good internationally that these irregularities and mistakes should have happened. After all, one of the exports we are most proud of is our British democracy. Now it seems we are losing our record there as, regrettably, we have done elsewhere.

The UK Electoral Commission on polling night put the difficulties down to having to apply procedures first set in the Victorian era to a substantially increased electorate. But this just won't wash. Whilst the turnout in Thursday's election was up on the previous one (something which should be of course applauded, not seen as a problem) it is still down on the 1950s when turnout was over 80%. It is quite depressing to think that local authorities, who are responsible for resourcing and conducting the ballots, should have based their resource calculations for ballot materials and staff on what they thought they could get away with based on more recent lower turnouts, rather than on what was required for a healthy democracy, but this is the conclusion one is drawn to, especially in a climate of budget cuts due to the recession and public deficits.

So what is the legal position when people have been unable to vote due to these problems?

The Parliamentary Election Rules are set out in Schedule 1 of the Representation of the People Act 1983. In particular:

1. The Returning Officer for a constituency must provide each polling station with such number of ballot papers as in his opinion may be necessary (reg 29(1)) (my emphasis). It does not appear that this rule was followed in all constituencies

2. The Returning Officer must appoint and pay such clerks to attend the polling station as may be necessary. Whilst it is not acceptable for loads of people to take a chance and pour out of the pub, for instance, and expect to be processed to vote 10 minutes before close of polling at 10.00, if, by contrast, there were queues at 9.00, which were not processed due to insufficient staff, then there may have been a breach of this rule too. I would agree however that this 10.00pm rule needs amending in part due to societal changes. People are having to work more shifts (at call centres etc) and longer hours generally, plus are living further away from their work meaning that it is more difficult to get in line to vote early enough to exercise it in the evening

3. It is correct however that only voters who already had ballot papers issued should be allowed still to vote after 10.00, although it seems that this rule was not applied consistently as in some areas people were still processed to vote after 10.00. This raises the prospect of a legal challenge on this issue too as public law should always be applied consistently.

4. The appointed Registration Officer is responsible for preparing the Electoral Register and if names were missed off this due to clerical error this could also be the subject of legal claim by a disappointed voter.

5. Many postal votes have also 'gone missing' which could certainly be the subject of a claim

What is the remedy for a citizen who is disenfranchised by one or more of the above events occurring? The general remedy is the issue of an election petition in the prescribed form under the Local Government Act 1972, which will be heard by a specialist court called the Election Court. The outcome could be that an election in a particular constituency is declared void. Such a legal action could of course be expensive and would require specialist advice before it was embarked upon. It would only be a likely course where the collective disenfranchisement of voters could have tipped the balance in a seat another way than the outcome declared on the night. Maybe voters in one of the conurbations will club together and issue a petition.

The European Convention provides the right to vote and therefore it might be possible to sue a local authority or the Electoral Commission, as supervisor, for damages for denial of a Human Right. Counsel has suggested that £750 would be payable per disenfranchised voter. Maybe a settlement 'out of court' might happen early on.

But they shouldn’t have to go to all that effort to get their basic democratic rights.

May 6th 2010 was not a great night in the history of British democracy whatever your political allegiance and whether you are satisfied with the ultimate outcome or not. We can only hope that big lessons have been learnt.

Anthony Wooding
7.05.10

my time as international election observer in Sudan

I am currently out in Sudan, having completed my first role as an international election observer but unable yet to return home due to all flights been held back due to volcanic ash from an Icelandic volcano. This does at least mean that I will certainly be here for the announcement of the election outcome which is scheduled for Thursday.

Sudan is the tenth largest country in the world and the largest in Africa. It has an area of over a million square miles. In the north the population is predominately Islamic by culture although many are black Muslim rather than of Arab origin. In the south the population is African, mainly Christian by culture, although some are animist (pagan). Sudan was ruled by Britain until independence in 1956. The last free election was in 1986. The current Islamic goverment of Omar al Bashir took power in 1989. There had been civil war between north and south until 2005 due to the the south's claims for autonomy and resistance to sharia law. In 2005 the Comprehensive Peace Agreement was signed which allowed the south substantial autonomy by allowing the Sudan Peoples Liberation Movement/Army to form a government. The south has however remained unstable in part because of tribal tensions within its own borders.

I came here as a member of a party of 49, comprising seasoned observers, academics, lawyers and ex-military in particular under the auspices of a London based organisation, The Centre for Foreign Policy Analysis. My posting was to Malakal the capital of a southern state known as Upper Nile State. I recorded a video diary for 3 days, starting with the day of arrival the day before the election started on 11th April. I thought that this was the best way to record my immediate impressions of the election process.

This is my report at the end of the first day (April 11th):

And this is the second day.....

In the event the voting in the South was extended for a couple of days. We left Malakal on 15th and returned to Khartoum. We are now enjoying an unplanned stay at the Khartoum Hilton and experiencing much more of Sudan - it's history and culture - as we await the election result and also our return to UK arrangements.

laws of war

At first blush it might seem odd or at least futile that the law could get involved in war. For war is after all the antithesis of law. It is what happens when legal remedies break down and states use other means to achieve their aims or vent their grievances. But in fact there is law relating to war and it has a very long history.

Much of the law of war is predicated on the principle that the goals under which war is fought should be restrained to political ones (without judging for this purpose whether they are justifiable or not) and in particular shall not include unnecessary destruction and hardship.

This has lead to the formation of a number of principles which have been enshrined in custom and since the mid-nineteenth century in international lawmaking treaties including the successive Geneva Conventions which started in 1864 and Hague Conventions which started in 1899.

The key principles which have been developed are:

1. Fighting should only be with enemy combatants, not with civilians. However it has always been recognised, to use a horribly euphemistic phrase, that 'collateral damage' is inevitable, and civilians will be killed in the cross-fire and moreover in the effort to destroy the enemy's infrastructure. The bombing of Hiroshima was justified on the basis that it would shorten the Second World War, a justification which is possibly dubious on strict interpretation of the laws of war, even if true. Unfortunately civilian bombing campaigns seem to have become pretty much the accepted norm since.
   
2. Allied to the above, combatants have a duty to identify themselves as such. Essentially this means wearing uniform as bearing arms openly. Provided they do so they have corresponding rights, including the right to prisoner of war status. Suicide bombers, even if authorised by a state who regards itself at war, which is usually not the case, therefore cannot be combatants. Mercenaries are not combatants and are not therefore entitled to prisoner of war status. Mercenaries involved in the Angolan War of Independence in the 1970s were tried and shot by firing squad after defeat and this was probably not a breach of the laws of war. Spies are also in a very difficult position as, by definition, they do not identify themselves. It is worth saying that having non-combatant status doesn't mean you are not entitled to a trial and have human rights, but this maybe more a theoritical than real position in the case of mercenaries and spies.
   
3. Prisoners of war must conversely not be treated harshly or punished in any way.


4. When a conflict has ended, persons who have committed or ordered any breach of the laws of war, may be held individually accountable through process of law. Hence the concept of 'war crimes'. There have of course been numerous examples of action for war crimes in the 20th and 21st century, starting with the Nuremberg trials and leading through to the Tribunal for Former Yugoslavia which has tried Milosovic (who died before the trial ended) and is currently trying Karadic. In 2002, the International Criminal Court was founded, although it has not been joined by the major players, China,India, USA and Russia. It has opened investigations into Uganda and Democratic Republic of Congo for alleged atrocities.
   
   

It is often said that history belongs to the victors and this could be said of law too. It is usually the victorious who apply the laws of war, retrospectively, to the vanquished. There are of course some exceptions such as the eventual if half-heartened prosecution by US authorities of its own soldiers involved in the My Lai massacre in South Vietnam (and more recently Abu Grahib, Iraq) but the general proposition is probably true.

Marriage vows

A lot the work I do is dealing with legal problems. So it's nice to look sometimes and the creation of legal relationships not what happens when they go wrong. No legal relationship could be more important than the relationship of marriage.

It cannot be denied that in UK at least marriage rates are declining. A useful site which graphically illustrates this trend is http://www.2-in-2-1.co.uk/. One interesting statistic is that in 1950 a first marriage was taking place every 1.6 minutes whereas in 2000 it was one every 2.9 minutes although this is slightly off set by an increase in second marriages in the last decade or so. The figures for divorces for the same period are 15.9 minutes (1950) and 3.4 minutes (2000). Another site says that in 2oo6 there were 237,000 weddings, the fewest since 1895 when the population of the country was not much more than half what it is now: marriage-hits-lowest-rate-since-records-began-almost-150-years-ago. About 0.1% of adults marry every year.

It is also necessary to bear in mind that gay and lesbian couples may now enter into civil partnerships and there is some controversy over proposals to allow such couples to insist on a church ceremony. One civil registrar tried to claim discrimination on the ground that being made to officiate a civil partnership offended her Christian beliefs but her challenge failed and she was instructed to get on with the job. Some clergy are now similarly up in arms because any amendment to the Equality Bill approved in the Lords will allow homosexual couples to say that they are being discriminated against if they are not allowed to be married in church as hetrosexuals are: see Clergy-could-be-sued-if-they-refuse-to-carry-out-gay-marriages-traditionalists-fear

Nonetheless let us celebrate marriage. After all, although I may be in a minority I have been happily married for 22 years and I am sure a lot of others can say the same.

Marriage ceremonies can take place if registered by the Church of England or some other religious bodies or can be civil only provided they take place at authorised venues. For a full list of the latter visit map of weddingvenues. You will even find the odd zoo listed amongst all the stately homes (I don't know if you can choose the actual enclosure).

Civil ceremonies often allow couples to choose their marriage vows, although many are adapted from the 1662 Common Book of Prayer which contains: 'To have and to hold from this day forward, for better for worse, for richer for poorer, in sickness and in health, to love and to cherish, till death us do part'

Interestingly in the earlier prayer book of 1549, based on Latin texts, the wording was ...to death us do depart'. I have tried to research the reason for the change and I think it was because the word depart changed its meaning (for those of you gramatically -inclined it became a non-transitive verb so you could no longer depart something or someone, only from something or someone). An alternative in the 1928 prayer book omitted the additional bride's vow of 'obey' and this seems now to have become the norm. I rather like the way liturgy gradually adapts to modern mores.

One interesting snippet to close. The Gender Recognition Act 2004 allows transexual people to change their legal gender. Before doing so they must dissolve any existing marriage. If their relationship is still strong enough couples can if they wish dissolve and then enter into a Civil Partnership, all on the same day.

lawyers must be paid for telling the truth

I would like to mention a recent important Court of Appeal case which is about solicitors being paid. You might think that this is only of interest to my profession and that just mentioning the subject only serves to show that what a money-grabbing lot we all are ( I know several lawyer jokes - some are very funny, e.g George Burns: And God said: 'Let there be Satan so they don't blame everything on me and let there be lawyers do they don't blame everything on Satan'. More of the same on http://www.allgreatquotes.com/lawyer_quotes.shtml. Warning: please ignore the ads for sleazy lawyers on this site). But bear with me on this one as the case establishes a very important principle for the operation of justice in this country, important to us all I think, which the first instance decision in the High Court put under threat.

The case, Buxton v Mills -Owen concerns a law firm concerns a client whose case on planning law began to look decidedly ropey and the client instructed the lawyer nonetheless to present an argument to the court which was untenable in law no doubt in the hope that the court would not realise it was being presented with a hopeless point. The solicitors rightly decided in these circumstances they had to withdraw. In the High Court is was held that if they did they should not be paid for the work they had done so far, implying that they should fight on or lose their fee.

Very often cases start off with unclear prospects and therefore require research of the evidence, and sometimes the law, before an opinion can be properly given. Or cases which look reasonable are blown out by a 'smoking gun' of evidence which could not be discovered until later in the day(and in some instances was deliberately concealed by the client).

Sometimes these developments just mean that to fight on is not worth the risk of costs and in those circumstances if the client is fully advised on the enhanced risks but still wants to fight on in the teeth of them, and pays any reasonable sums on account of costs required, the lawyer should continue provided there is still sufficient confidence in the solicitor -client relationship to keep it going (in practice though the relationship usually breaks down at this point as the solicitor advises the case should be abandoned but the client will not accept).

However even if the client has every confidence that the lawyer will pull it off, no lawyer can continue with a case that is untenable in law or present false evidence or withhold evidence that must be disclosed. Since the solicitors' ethical code must be followed this even raise the vista of a solicitor having to say to a judge (of course in the most persuasive way possible) in effect: 'I know my client's case is rubbish but he has suffered badly at the hands of the other party, so please find for him anyway'

In those circumstances, the lawyer must be allowed to withdraw rather than remain in such a position.

As Lord Justice Dyson has wisely said in Buxton v Mills-Owen ..'the common law rule that a solicitor is entitled to be paid for all the work he has done prior to termination if he terminates for good reason has been part of our law for almost 200 years'.

There are some lawyer jokes that must never be taken seriously. One, by Patrick Murray, is one of those: 'a lawyer will do anything to win a case, sometimes even tell the truth'

court of appeal allows hindu cremations

A friend of mine Rambert (aka 'Ramby') de Mello was counsel in an important case decided in the Court of Appeal a couple of weeks ago brought by a Mr Ghai against Newcastle City Council : http://www.lawreports.co.uk/WLRD/2010/CACiv/R(Ghai)_v_Newcastle.htm

The case decided that Hindus can have open air cremations. Forget the alarmist vista painted by some. It does not mean that we will be seeing dead bodies burning on land all over the country. What the case actually decides is that it is ok to have a cremation in a building with a roof which is open to permit the sun to shine on the pyre.

The legal history is interesting. The first case brought by Mr Ghai, an orthodox Hindu, was under the Human Rights Act. At that stage he did indeed try to assert the right to be cremated on an open pyre and not in a crematorium in accordance . The court took the view that whilst this right was part of his genuine religious belief and therefore fell within Article 9 of the Act, the prohibition was justified to protect public morals and he therefore lost the case. But in his second case Mr Ghai produced evidence that his belief would be satisfied if his cremation took place within a structure provided that it was by traditional fire and sunlight could shine directly on his body whilst it was being cremated. This second case turned on the meaning of the word 'building' in the context of the Cremation Act 1902 section 2 . The Secretary of State intervening in the case argued that a building has to be 'an enclosure of brick or stone covered by a roof' but Rambi said the natural and ordinary meaning of the word building was a construction which was relatively permanent and substantial and that a building could have gaps in the walls. If a cremation was conducted in such a building it would still be shielded from public gaze. The court agreed this time.

In a way the case is an example of how British law can adapt to new faiths and cultures. It is perhaps as much about our law as about the good old British compromise, reflected in our developing legal process. Mr Ghai amended his case and the judges were prepared then to find a way to meet it.

MP expenses, the Bill of Rights and getting rid of the Rump Parliament

You may have heard that some of the 5 MPs charged with offences under Theft Act 1968 relating to fiddling their parliamentary expenses have claimed the protection of the Bill of Rights 1689 in an effort to exempt themselves from facing trial. The attempt has caused some furore due to the highly charged nature of the issue, but as ever with such issues some of the comments on either side have generated more heat than light on the law.

The Bill of Rights was passed in December 1689 as part of the settlement inviting the Dutch Prince William of Orange and his wife Mary to the throne. It's background was an effort to consolidate the fledgling development of a constitutional monarchy and by enshrining certain parliamentary and civil liberties making sure that the country did not lapse again into the tyranny of the 'Divine Right of Kings' characterised by the Stuart era. (it is actually the nearest thing we have to a constitution at all, although some of its provisions served a much more political purpose: it barred Catholics from any succession to the throne).

So amongst other things the Bill stated that 'the freedom of speech and debates or proceedings in Parliament' ought not to be impeached or questioned in any court'. MPs are not immune from the law. Certainly if an MP committed an assault in the precincts of Parliament he could not escape prosecution - he could not claim 'sanctuary' as people could do in medieval times once they had got inside a church. Perhaps it is arguable that expenses rules and MP correspondence with the Commons Fees Office comes into a different category, more akin to 'proceedings' as envisaged in the Bill , but I doubt it since the essence is still a criminal charge. I also suspect that the MPs of 1689 would turn in their graves if they thought the Bill would ever be used in this way.

But to put the point about non avoidance of trial beyond any doubt one needs to turn to the words 'in any court' contained in the Bill. There seems to reason why the 5 MPs could not be 'tried' by their peers in Parliament if not in court although this rather limits the sentence to expulsion (and/or possibly a fine?) and they are probably all standing down at next election anyway. Also this route is unlikely to assuage public anger. More realistically, Parliament could waive any immunity to trial as it belongs to parliament as a whole not to individual MPs. The government could also pass a new law overriding the Bill of Rights for the very reason that we do not have an inalienable constitution. However it is doubtful that any law should have retrospective effect and so catch the 5.

'You have sat too long for any good you have been doing lately ... Depart, I say; and let us have done with you. In the name of God, go!'

This is what Oliver Cromwell said about another corrupted parliament, known as the Rump Parliament, in 1653 (pictured above).

Stretching and misinterpreting rules (in however absurd a way) is one thing. Claiming for reimbursement of a fictitious mortgage quite another. This parliament reminds us of the Rump Parliament. Many of its members will disappear at the next election, but a few need to pay a higher penalty and face the full rigours of the law.