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in legal proceedings, a report and recommendations of the Electoral
Commission or the proposals of a Boundary Committee, but such a challenge
may nevertheless in principle be raised in a claim for judicial review (on which,
see chapter 10). This was con¬rmed in R v Boundary Commission for England,
ex p Foot [1983] QB 600, in which the Court of Appeal held, in proceedings for
judicial review against the Boundary Commission for England, that any attack
must be based on the common law Wednesbury principles, established in
Associated Provincial Picture Houses v Wednesbury Corpn [1948] 1 KB 223 “ in
particular it would have to be shown that the Commission had misdirected
themselves as to the rules they were bound to apply or had arrived at conclu-
sions which no reasonable Commission could have reached.
There were (and remain) three obstacles to a successful challenge on these
grounds. The ¬rst was that the rules in the Second Schedule to the Parli-
amentary Constituencies Act 1986 (above), in using expressions such as ˜if it
appears to the Commission™, ˜so far as is practicable™ and ˜excessive disparity™,
made their application in many respects ˜dependent upon the subjective
judgement of the Commission™, which was not to be usurped by the court.
Secondly, the Boundary Commissions, not being subject to the Tribunals and
Inquiries Act 1992, were not required to give reasons for their decision to make
any particular recommendation. This factor, said the court in ex p Foot, would
usually make it impossible to establish that a Commission had failed to consider
or apply the rules properly. (The Electoral Commission and the Boundary
Committees are likewise not among the bodies required by the Tribunals and
505 Parties, groups and the people


Inquiries Act 1992 to give reasons for their decisions.) Thirdly, the e¬ect of what
was then section 2(2) of the House of Commons (Redistribution of Seats) Act
1958 (now rule 7 in Schedule 2 to the Parliamentary Constituencies Act 1986)
was that the Boundary Commissions were relieved from the duty to give full
e¬ect in all circumstances to the rules. The e¬ect of this provision, said the
court, was that while the Commissions must indeed have regard to the rules,
these had rather the status of guidelines than of rules of which a strict applica-
tion was mandatory. (Rule 7 is now to apply to the Electoral Commission and
Boundary Committees.) In the result it was held in ex p Foot that the Boundary
Commission had not misconstrued the rules in Schedule 2; neither had it been
shown that the Commission had not properly exercised the wide discretions
allowed to them by those rules.
After the draft Order giving e¬ect to the Electoral Commission™s recommen-
dations has been approved by both Houses it is submitted to the Queen
in Council to be formally made, and takes e¬ect at the next general election. If
either House rejects the draft Order, the Secretary of State may amend it before
again laying it before Parliament. Once the Order in Council has been made it
may not be called in question in any legal proceedings: Parliamentary
Constituencies Act 1986, section 4(7).
Our system of boundary delimitation does not ensure that votes have equal
value. It was held in ex p Foot (above) that it is not the primary purpose of the
system to achieve substantially equal constituencies so that each elector™s vote
should have as much weight as every other. The requirement of electoral
equality in the ¬rst limb of rule 5 of Schedule 2 to the Parliamentary
Constituencies Act 1986 is subordinate to rules 1 to 4, and in particular to
the guidelines in rule 4 designed to prevent the crossing of county or
London borough boundaries. In the United States, on the other hand, the
Supreme Court has held that equal representation for equal numbers of
people is demanded by the Constitution, and that votes are not to be substan-
tially diluted on the basis of place of residence. ˜Legislators™, said Chief
Justice Warren in Reynolds v Sims 377 US 533, 562 (1964), ˜represent people,
not trees or acres™. Some deviation from the equality of votes is, however,
permitted if based on legitimate grounds. (See Brown v Thomson 462 US 835
(1983).)
The rules for redistribution of seats formerly indicated a limit of 25 per cent
divergence from the electoral quota, but the present inde¬nite formula (˜as near
the electoral quota as is practicable™) was substituted by the House of Commons
(Redistribution of Seats) Act 1947 (see now rule 5 in Schedule 2 to the 1986
Act). Many commentators think that a more precise limit should be restored.
It has been proposed, for instance, that there should be ˜an overriding instruc-
tion that no constituency should have less than half the electorate of any other
at the time of redistribution, except for the Scottish Island areas™ (Report of
the Hansard Society Commission on Electoral Reform (1976), para 45). It has
also been suggested that ˜a maximum tolerance limit of 15 per cent from the
506 British Government and the Constitution


electoral quota™ should be imposed upon the application of the rule against
crossing local government boundaries (R Blackburn, The Electoral System
in Britain (1995), p 148).
The relative value of votes can be much a¬ected by population movements
which take place between delimitations. For instance, population changes had
produced the result, before the 1983 revision, that the electorate of Buckingham
was ¬ve times the size of that of Newcastle upon Tyne Central. The Boundary
Commission for England subsequently made a successful e¬ort to reduce the
divergence of constituency electorates from the electoral quota (to this end
departing for the ¬rst time from rule 4 so as to cross London borough bound-
aries): 84 per cent of the constituencies recommended in their 1995 Periodical
Report had electorates within 10 per cent of the quota, and 99 per cent were
within 20 per cent of the quota (Fourth Periodical Report, HC 433-i of 1994“95,
p 283). Some discrepancies continue to be intractable, however: in December
2005 the largest constituency electorate in England was the Isle of Wight with
107,790 electors; the smallest, Salford, had 50,138 (in Scotland, Na h-Eileanan
an Iar had only 21,404 electors) (Electoral Statistics 2006.) The general criticism
has been made of the rules in Schedule 2 that they are ˜at best imprecise and
ambiguous and at worst contradictory™ (I McLean and D Butler (eds), Fixing the
Boundaries (1996), p 252 and ch 12).
The process of boundary revision has often aroused political controversy and
it has not been immune from infection by considerations of party advantage
(although bias has not been attributed to the Boundary Commissions them-
selves). In 1969 the Labour Government, instead of following the normal
procedure for implementation of Boundary Commission recommendations,
introduced a bill which absolved the Home Secretary from his duty and
provided for the recommendations to be implemented only in part. The bill was
lost as a result of resistance by the House of Lords, whereupon the Home
Secretary performed his duty in laying before Parliament the Boundary
Commissions™ reports together with draft Orders in Council, but asked the
Government™s supporters in the House of Commons to vote against the Orders,
which were duly disapproved. The Government justi¬ed its action on the
ground that the Boundary Commissions had worked by reference to local gov-
ernment boundaries which were shortly to be extensively revised, following the
Redcli¬e-Maud Report (on which, see chapter 4). But since the recommended
boundary changes were believed to be disadvantageous to the Labour Party™s
electoral prospects, the Government was widely criticised for acting from polit-
ical bias. (Cf the subsequent rebuttal by Mr Merlyn Rees, a Home O¬ce junior
minister at the time: HC Deb vol 38, col 266, 2 March 1983.) On another occa-
sion there were allegations that a Conservative Government was expediting the
redistribution process so that the 1983 election might be held on boundaries
more favourable to the Conservative Party. (See HC Deb vol 995, cols 279 et seq,
3 December 1980 and D Butler and D Kavanagh, The British General Election of
1997 (1997), pp 22“3.)
507 Parties, groups and the people


See further Rallings and Thrasher, ˜The parliamentary Boundary Commi-
ssions™ (1994) 47 Parliamentary A¬airs 387; R Blackburn, The Electoral System
in Britain (1995), pp 142“56; I McLean and D Butler (eds), Fixing the
Boundaries (1996); D Rossiter, R Johnston and C Pattie, The Boundary
Commissions (1999).


(b) Fairness of the contest
In a general election the election is of members of Parliament to represent
constituencies. In modern times, however, elections have become less about
electing individual members of Parliament and more about electing a govern-
ment. No member of the electorate actually has a vote on who should, and who
should not, be in the government, but the overwhelming majority of the elec-
torate now use their votes as if this is what they are for. As such, the free choice
of the electorate may be impaired if the competing parties have unequal oppor-
tunities of making their policies known to the people, because of di¬erences in
¬nancial resources or access to the media of communication. Electoral law and
practice should as far as possible ensure that in these respects none of the parties
is at an unfair disadvantage in the election campaign. It is also in the public
interest that new political groups or independent candidates are not prevented
from entering the contest to challenge the policies of established parties.

(i) Election deposit
Every candidate in a parliamentary election is required to deposit a sum of
money with the returning o¬cer, and this sum is forfeited if the candidate fails
to poll more than a prescribed percentage of the votes cast in the constituency.
The amount of the deposit was ¬xed at £150 in 1918, and the threshold below
which the deposit was forfeited was 12.5 per cent of the votes cast. In 1983 the
Home A¬airs Committee of the House of Commons considered the require-
ment of the deposit (First Report, HC 32-I of 1982“83, para 70):

Though it is sometimes argued that there is no reason why any individual who wishes to stand
for Parliament should be prevented from doing so by financial considerations, there are valid
reasons for imposing some form of constraint. Candidates in parliamentary and European elec-
tions automatically acquire a number of advantages and privileges, such as free postage for
their election addresses, free use of publicly maintained buildings for public meetings . . . and,
not least, a great deal of publicity. These privileges are capable of being abused, and it is
generally accepted that a deposit of £150 would do little to prevent any number of frivolous
or deliberately disruptive candidates from participating in election campaigns and distributing
propaganda of a racially inflammatory or otherwise anti-social character.

Although the Committee found that there had been little serious abuse of
electoral privileges, it was of the opinion that a safeguard was needed (eg to dis-
courage candidates who set out to confuse voters by assuming a name similar
508 British Government and the Constitution


to that of a well-known candidate) and proposed that the deposit should be
increased to £1,000. The Government accepted this recommendation, and also
decided that the votes threshold should be reduced to 5 per cent of the poll
(eg 2,500 votes in a poll of 50,000). (The majority of the Home A¬airs
Committee had proposed 7.5 per cent.) A bill was introduced in 1984 to give
e¬ect to these and other changes in electoral law; in the course of its passage the
Government reached a compromise with opposition parties, to ¬x the deposit
at £500: see the Representation of the People Act 1983, Schedule 1, rules 9(1),
53(4) as amended. The Home A¬airs Committee returned to the matter in
1998, recommending that the deposit should be raised to £700 and thereafter
be index-linked (Fourth Report, HC 768-I of 1997“98, para 134).
The requirement of a deposit may discourage some serious independent can-
didates and creates di¬culties for less a¬„uent political parties, deprived at least
for the period of the election campaign of what may add up to a substantial
sum. For these reasons it has several times been proposed that the deposit
should be abolished and that there should instead be a large increase in the
number of supporting signatures required for a nomination “ from the present
ten to, say, 0.5 per cent of the constituency electorate (250“400 in most con-
stituencies). Governments have declined to adopt this solution, mainly on the
ground that candidates who would poll only a handful of votes might yet have
little di¬culty in obtaining the additional number of signatures to a nomina-
tion (Representation of the People Acts, Cmnd 9140/1984, para 5.4). But the
exaction of a substantial deposit may shut out fresh ideas and make it di¬cult
for a new political movement or minority group to take the parliamentary way
of advancing its cause. (See generally R Blackburn, The Electoral System in
Britain (1995), pp 222“31.)

(ii) Election expenditure
The power of money could undermine the fairness of the electoral contest if
there were no restriction on expenditure in the campaign. This was appreciated
as early as 1883, when a Corrupt and Illegal Practices Prevention Act established
a ceiling for expenditure by each candidate. The limitation of control to con-
stituency expenditure continued until the end of the twentieth century, even
though the main focus of election contests had shifted decisively to the national
campaign.
Expenditure by a candidate, a candidate™s election agent and by third parties
is controlled by the Representation of the People Act 1983, sections 73“76A. A
candidate™s election expenses must in general be paid by the candidate™s election
agent, and no expense in excess of (at present) £500 may lawfully be incurred
˜with a view to promoting or procuring the election of a candidate™ “ whether
by presenting the candidate or his or her views to the electors or by disparaging
another candidate “ except by the candidate, the candidate™s election agent or
persons authorised by the agent. The Act makes provision for maximum
amounts of expenditure that may be incurred by or on behalf of a candidate in
509 Parties, groups and the people


any constituency, such amounts being subject to variation from time to time by
statutory instrument. The limit applicable at the 2005 general election was
£7,150, plus 7p for every registered voter in a county constituency or 5p for
every registered voter in a borough constituency. A higher maximum (at present
£100,000) applies at by-elections, to which the parties devote a more intensive
e¬ort. In recent general elections the average recorded constituency expendi-
ture per candidate has been well below the permitted maximum for all the
parties. In the 2005 general election the average amount spent by candidates
was under £4,000 and only 15 per cent of candidates spent over four-¬fths of
their limit (Electoral Commission, Election 2005: Campaign Spending (2006)).
The authors of a study of the 1992 general election, while not persuaded that
there had been gross overspending, observed that the recorded ¬gures con-
cealed ˜the creative accounting which is universally acknowledged to occur in
expense returns™: D Butler and D Kavanagh, The British General Election of 1992
(1992), p 244; see also ibid, The British General Election of 1997 (1997), p 223.
The maximum sum allowed to be spent by a third party in support of or in
opposition to a candidate was formerly ¬xed at £5 by the Representation of the
People Act 1983, section 75, but this draconian limit was challenged in the
European Court of Human Rights in the case of Bowman v United Kingdom
(1998) 26 EHRR 1. Shortly before the 1992 general election Mrs Bowman, exec-
utive director of the Society for the Protection of the Unborn Child, distributed
25,000 lea¬‚ets in Halifax giving details of the voting records and views on abor-
tion of the three main candidates in the Halifax constituency. She was charged
with an o¬ence under section 75 in having incurred expense in excess of £5 with
a view to promoting or procuring the election of a candidate. Although acquit-
ted on the technical ground that the summons had been issued out of time, she
claimed that her prosecution had violated her right to freedom of expression
under Article 10 of the European Convention on Human Rights (on which,
see further chapter 11). The European Court held by a majority that the limita-
tion of her expenditure to £5 “ in e¬ect a total barrier to publishing the
information “ was disproportionate to the legitimate aim (as the court recog-
nised it to be) of securing equality between candidates. It followed that there
had been a violation of Article 10. In consequence of this decision, section 75
was amended so as to raise the limit on expenditure by a third party to £500.
Expenditure on the national campaign was until recently not limited by law,
even though national leaders and issues had come to dominate election cam-
paigns. In R v Tronoh Mines Ltd [1952] 1 All ER 697, McNair J decided that the
prohibition of unauthorised election expenditure (then contained in the
Representation of the People Act 1949) did not extend to general propaganda
in support of a political party, even if it incidentally assisted particular candi-
dates of that party. The decision led, as David Butler remarks, ˜to the innova-
tion of expensive nation-wide advertising™ (Committee on Standards in Public
Life, Fifth Report, vol 2, Cm 4057-II/1998, p 221). The main parties spend con-
siderable sums in the national campaign on such things as public opinion
510 British Government and the Constitution


research, poster campaigns, cinema and press advertising, and broadcasting.
(Broadcasting time is provided without charge for party political broadcasts,
but production can be a costly item.) The Conservative Party formerly had the
largest resources and was able to out-spend other parties in election campaigns,
but the discrepancy between Conservative and Labour spending diminished in
more recent general elections and in 2005 Labour emerged as the largest
spender by a small margin. The following returns of total campaign expendi-
ture in Great Britain were made by the parties after the 2005 election:

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