Electoral commission report opens door for barred voter claims

21 May 2010 by Adam Wagner

The Electoral Commission, an independent body which sets standards for the running of elections, has released its report on problems experienced by voters during the 2010 General Election. It calls for “urgent action” to ensure that “the restrictive rules which prevented participation should be changed”. This has probably opened the door to legal claims.

The Interim Report found that at least 1,200 people were still queuing at 27 polling stations in 16 constituencies at 10pm. It concludes that the main contributing factors to this problem were:

• Evidence of poor planning assumptions in some areas.
• Use of unsuitable buildings and inadequate staffing arrangements at some polling stations.
• Contingency arrangements that were not properly triggered or were unable to cope with demand at the close of poll.
• Restrictive legislation which meant that those present in queues at polling stations at the close of poll were not able to be issued with a ballot paper.

There are a number of possible legal remedies for barred voters. Under electoral law, it may be possible to force a re-run of affected polls. Under the Human Rights Act 1998, which imposes a duty on States to hold free and fair election, claimants may request a change in the law to prevent similar future problems, or compensation to reflect the breach of their rights.

We posted on 13 May on the difficulties which voters were likely to face in pursuing claims for compensation, despite the well publicised claim by Geoffrey Robertson QC that they might be entitled to £750 compensation. The European Court of Human Rights has been reluctant to award compensation to spurned voters in the past, and have been much keener to provide “just satisfaction” (the object of any legal remedy in human rights claims) by way of insisting on changes to State voting laws.

Liberty, the Human Rights organisation, are investigating claims on behalf of barred voters and have received around 220 submissions from individuals. They appear to be now seeking a change in law rather than compensation. Liberty’s legal director told The Guardian that the organisation has “ruled out petitioning for a rerun of the results because the number of people excluded in each area was not high enough to have affected the result of the ballot“.

The legal route Liberty will pursue is a judicial review to ask the High Court to rule on the issue on whether there should be some flexibility for people who are still in queues at 10pm when, on the current law, the polls must close. This appears to be the view of the Electoral Commission too, so it may be fairly straightforward to convince a court. Of course, this legal route assumes that the Government refuses to institute the change themselves; the review would have to be of an initial Government refusal to change the system.

Given the clear conclusions of the Electoral Commission report it may now be more likely that the Government will take the initiative, meaning that claims for a change in the law will become unnecessary. However, the result may be that voters should not expect compensation any time soon.

Read more:

• Feature | Barred voters and the right to compensation under human rights law
• Voters seeking compensation will face uphill climb