Judges could overturn a Tory victory in Rochester, lawyers say

Are the Conservatives about to come a huge cropper with David Cameron’s extremely expensive primary election in Rochester?

A couple of Britain’s top election lawyers say the primary which the Conservatives are currently holding to pick their candidate for the Rochester and Strood by-election could open the by-election result to serious challenge in an election court.

Last week I argued that the Conservative primary, the result of which will be announced on Thursday, might breach the spirit of the legal spending limits which are imposed on parliamentary elections.

In particular I argued that the current exercise might be construed more as promotion of the Tories soon-to-be-unveiled candidate, than as an genuine operation to give voters more choice.  I pointed out that there are only two contenders, where in previous Conservative primary contests there have usually been three of four people in contention.

I have now consulted two of Britain’s leading experts on election law, both of whom have been involved in high profile cases.  Neither wanted to be named but both believe that the primary process could open the Conservative contender to an election petition in the event of them winning.  And, if the lawyers are right, then the result might be overturned by an election court.

Primary elections don’t come cheap, which explains why they don’t happen very often.  I think that Rochester is only the third time that a party has ever conducted a full postal primary involving a constituency’s 70,000 or so voters.

The two previous postal primaries – conducted by the Conservatives in Totnes and Gosport in 2009 – were estimated to cost about £35,000 to £40,000 each, though that figure was queried.

Spending limits

Much, if not most, of this  spending must be attributed to the cost of sending out to each voter leaflets about the candidates, a ballot paper, and a freepost envelope to return the vote.  But postage costs have risen hugely since 2009 – from 30p to 53p for a second class stamp for example.  The Tories would get a bulk discount, but presumably bulk costs have risen by a similar proportion.

And the Conservatives seem to be spending a vast sum of money just on this primary election, though they refuse to say how much. Over the past three weeks, they’ve sent three separate mailings to each of the 77,000 or so voters in the constituency.

According to Ukip, the first mailing involved a letter from David Cameron and glossy A3 leaflet about the new policies announced at the Conservative conference in Birmingham. The second mailing involved another letter from the prime minister which named the two possible candidates.

The third mailing included a letter from Conservative HQ, a piece of paper with biographical details which doubled up as a ballot paper, and a freepost envelope in which to return the voting paper. If one includes the envelopes in which the mailings were sent to voters, that means nine items of paper per voter, or almost three quarters of a million items of paper altogether.

If that wasn’t costly enough, all the postage has been first class, not second.  The mailings alone must have cost at least £100,000, before any expenditure related to counting the votes. In addition, over two successive Saturdays, the Conservatives distributed two A3 coloured leaflets to each of the 45,000 houses in the constituency, talking about their primary election. And there was also a full-page ad in the local paper, as well as the cost of holding a hustings public meeting.

In by-elections each party is limited to spending £100,000 on their campaign.  In Newark (picture, below) the Tories claimed to have spent more than £97,000, just within the limit, and the party has pledged to fight an even more energetic and extensive campaign in the Rochester by-election.

The Tories insist that the costs of their primary to choose their candidate need not be included within that spending limit.  They’re relying, they say, on guidance from the Electoral Commission, which they say stipulates that spending doesn’t count until a candidate is announced.

Ukip, on the other hand, claim they’ve taken legal advice – from a top QC – that says the Tory primary should count towards election costs.

In law, election spending is broadly linked to each candidate.  The crucial point here is the definition of what constitutes a “candidate”.  The Conservatives say that the two women in their primary election are not candidates, and that they won’t have a candidate until Thursday. Therefore, they argue, they can’t incur election spending until then.

Expenses clock

The law on this issue is laid down by the representation of the people act 1983, and in particular part II, section 90.

One part would seem to give the Conservatives some confidence.  Section 90ZA (1) states that election expenses are what: “is used for the purposes of the candidate’s election after the date when he becomes a candidate at the election”.

So indeed, it seems, the expenses clock doesn’t start ticking until they announce their candidate on Thursday.

However, read on.  A few lines later, section 90ZA (5) says that the act’s earlier reference to a candidate: “includes (where the context allows) a reference to a person who becomes a candidate at the election after the expenses are incurred.”

So it seems money spent before the candidate is picked might count as an election expense, and that the spending clock may actually have started ticking when David Cameron wrote to every voter last week asking them to take part in the party’s primary.

The act makes it clear that expenses include unsolicited material distributed to voters, which is pretty much what voters have received from Mr Cameron.

Context

Legally, I’m told that the key word here could be “context”, as “context” might include the very issue I raised in my blog last week. Was the primary election largely carried out in order to promote the eventual candidate by pumping out to every voter favourable literature about her (and the losing alternative) and to bring her virtues to the attention of voters?

And it’s Section 90ZA (5) which leads my two lawyers to think the Tories are skating on very thin ice.  One argues that the whole cost of the primary might have to count as an election expense.  Or it might be half the cost, as there are two candidates in the primary contest.

It’s quite a tricky issue for the election lawyers, who are venturing into totally uncharted territory.  And I must stress that the Conservative Party cite Electoral Commission guidance that spending doesn’t start until a candidate is picked.

Heading to court?

I’m surprised that for such a bold, unprecedented step, they should rely so much on the Commission, and haven’t done what Ukip did, and taken independent legal advice.  For such a bold move, it does seem a little, er, reckless.

And if Ukip loses to the Tories in Rochester, and the result is close, it could all end up in court.  Ukip would have to wait until the end of December – 35 days after the result – to confirm that the primary is not included on the Tories’ expense return, and also to see if they have left any leeway for it to be added on without breaching the £100,000 spending limit.

Then they’d have to petition the high court for the result to be overturned at a hearing of the election court.  That might entail a series of juicy court cases in January and February.

If the Tories’ spending in Newark is any guide, inclusion of the primary expenses could see the party 100 per cent over the limit.  If the election judges agree with the interpretation of the lawyers to whom I’ve spoken, then such a discrepancy would be hard to brush aside.

What a mess Rochester could prove to be – with David Cameron heavily implicated in the whole process.

Follow @MichaelLCrick on Twitter.