Monday, 8 November 2010

If it looks like a court...

The Election Court is a strange beast. At the very least, it is a rare one, having last been convened (as was reported all over the place last week) almost a hundred years ago. Perhaps that means that elections in this country are mercifully free of the kind of malpractice - for example, telling deliberate lies about one's political opponents - that the Election Court was called upon to adjudicate in the now celebrated case of Woolas v Watkins. Or perhaps there has hitherto been a tacit understanding among candidates not to be such cissies as to cry running to the courts whenever someone attempts to steal an election using underhand tactics of the sort complained of here. One thinks back, for example, to the Tower Hamlets election of 2005, in which Oona King was slandered even more outrageously by supporters of George Galloway than was Robert Watkins by Phil Woolas at Oldham in 2010. It's interesting to speculate what the Election Court would have had to say about that.

That's as maybe. Whatever one might think about the propriety of resorting to law following a bruising election campaign, though, it would seem fairly obvious that the Election Court that (under the Representation of the People Act 1983) has jurisdiction over such cases is in fact a court. The name is the first clue: Election Court, not Election Tribunal, or Election Commission, or Election Inquest, or another name that might have been chosen had the framers of the Act wished to imply that there was something not-quite-courtlike about the court. Nope, it's called the "Election Court".

Then there's the question of personnel. Unlike the regular High Court (which in all other respects it resembles - and, as we shall see, in fact is) the Election Court boasts not one but two of Her Majesty's judges. In this case, it was Mr Justice Teare sitting with Mr Justice Griffith Williams. Not just any old court, then, but a special souped-up court featuring an extra judge, just to be on the safe side.

So far, then, we've managed to identify two pretty significant court-like features of the Election Court: it's called a court, and it has judges sitting in it. But that's not all! The Representation of the People Act also seems to assume that the Election Court is simply a name given to a special sitting of the High Court. Section 120 provides for the challenging of an election result by means of a petition to the High Court (or, in Scotland, to the Court of Session). And Section 123, which establishes the Election Court procedure, is worded as follows:


(1) A parliamentary election petition shall be tried by—

(a) two judges on the rota for the trial of parliamentary election petitions, and the judges for the time being on that rota shall, unless they otherwise agree, try the election petitions standing for trial according to their seniority,

(b)in Northern Ireland, the two judges of the High Court or the Court of Appeal for the time being selected under section 108 of the Judicature (Northern Ireland) Act 1978,

and the judges presiding at the trial of a parliamentary election petition are hereinafter referred to as the election court.

(2) The election court has, subject to the provisions of this Act, the same powers, jurisdiction and authority as a judge of the High Court (or, in Scotland, a judge of the Court of Session presiding at the trial of a civil cause without a jury) and shall be a court of record.


So: it looks like a court, it's called a court, it is presided over by judges, and the Representation of the People Act confirms that it is a court - with precisely the same authority as the High Court normally enjoys. Anything else? Well, last Friday's judgement is headed

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ELECTION COURT

Which ought to put the matter beyond question. So why did Phil Woolas' lawyers advise him that the best way of challenging the judges' verdict was not the usual one - of seeking leave to appeal the decision from the Court of Appeal - but rather by means of a judicial review?

For the uninitiated, a judicial review is the procedure by which the High Court scrutinises decisions made by official tribunals, administrative officials and ministers, regulatory bodies such the General Medical Council, and other quasi-judicial bodies and people. Not other courts. As part of the High Court, the Election Court can scarcely expect to have its decision reconsidered by another part of the High Court - especially given that two High Court judges sat in judgement on the case, and a Judicial Review would ordinarily feature just one. The general rule is that appeals are made to higher courts than the one that made the initial ruling. The first appeal is to the Court of Appeal, and after that to the Supreme Court - and, ultimately, there may be grounds to petition the European Court of Human Rights in Strasbourg. At each stage, the judges involved aren't just more senior, there are usually more of them. To ask one judge to overrule two others of the same rank would be anomalous to say the least.

That's what Mr Justice Silber seems to think. Throwing out Woolas' request for judicial review today, he made the rather obvious point that the decision was "not amenable to judicial review because it is a decision of High Court judges sitting in their capacity as High Court judges". This was "settled law", he added. Well, it's nice to know that "settled law" agrees with plain logic and common sense. That isn't always that case. And, to be fair, he did add that "even if" the Election Court was amenable to judicial review, it would only apply in "limited circumstances none of which apply in this case", which might be taken to imply at least the possibility of a judicial review being heard. But that's really no more than typical judicial belt-and-braces, since the majority of his short ruling was taken up with reminding everyone of the principle that decisions of the High Court can only be appealed to a higher court, not judicially reviewed as though it were some lowly tribunal. He also invited Woolas to appeal, if he wanted to appeal, to the Court of Appeal; which quite frankly he should have done in the first place. Apart from anything else, an appeal would allow a much wider reconsideration of the facts.

To sum up, the Election Court looks like a court, is called a court, is run by High Court judges like a court, the Representation of the People Act describes it as a court, its judgements come headed with the words "In the High Court". And as if to remove all doubt, Mr Justice Silber, like Bunny sitting in the corner, thinks it's a court.

I'd put it down as definitely a very probable court.

"However a source close to Phil Woolas' legal team told the BBC his lawyers would renew their application for a judicial review and were seeking an oral hearing in front of a High Court judge in which to argue a review should take place."

I give up.