The decision in the EPMU case

The Judge was Justice MacKenzie. The full judgement is here Here are some key extracts:

[18] Because there is no legal impossibility involved in the proposition that an artificial person might be involved in the administration of the affairs of a party, to read the word “person” in s 13(2)(f) as limited to natural persons would in effect create two categories of persons involved in the administration of the affairs of a party:
(a) Natural persons ,who are ineligible to be listed as a third party; and
(b) Artificial persons, who are eligible to be listed as a third party.

Exactly. It would create an illogical distinction. If a “person” is capable of being involved in the administration of a political party, the ineligibility criteria must apply to them, regardless of the type of person (natural vs legal).

[21] Second, in the absence of such a legal prohibition, the question of whether a particular person is involved in the administration of the affairs of the company is a question of fact. The scheme of the Act is such that the determination of that question of fact is a matter for the Commission. Under s 17(1)(c) the Commission must refuse an application if it is not satisfied that the applicant is eligible to be listed. To interpret s 13(2)(f) as not applying as a matter of law to artificial persons, by adopting a narrow meaning of the word “person” from its context in the wider phrase, would be to pre-empt the very question which the Commission is required to address.

This is why I am surprised the Electoral Commission followed the Crown Law advice, as doing so actually meant the Commission would not be as effective in doing its job in making sure only eligible persons can register as third parties. To be fair to the Electoral Commission, they did say in their affidavit something along the lines of having some reservations about the advice, but by consensus decided to accept it.

Crown Law now have the dubious distinction of having been patently wrong by saying the original EFB did not breach the Bill of Rights and with their definition of “person”.

[22] Third, I can discern no reason, derived from the purposes of the Act, which would justify exclusion, from the category of persons created by s 13(2)(f), of an artificial person involved in the administration of the affairs of a party, as distinct from a natural person who is so involved. The clear purpose of s 13(2)(f) is to ensure a degree of separation between persons involved in the administration of political parties, on the one hand, and third parties, on the other. That purpose is best achieved by excluding from eligibility all persons involved in the administration of a political party, not merely a subset of such persons.

This goes right to the heart of the case – what interpretation best meets the overall purpose of the Act.

[27] For these reasons I conclude that, on its proper interpretation, the word “person” in s 13(2)(f) bears the meaning given to it by s 29 of the Interpretation Act 1999.

I had had so many lawyers tell me that this must be the case, I would have been very surprised if the case had gone the other way.

[29] For these reasons, I consider that the Union does potentially fall within the scope of s 13(2)(f) of the EFA and that the question of whether it does so must be determined by the Commission before it can be listed as a third party.

As previously stated, this does not mean the EPMU is ineligible. It means the Electoral Commission must now determine if its opinion that EPMU is involved in the administration of the Labour Party. I am of course of the view that there is an overwhelming case that they are involved, and hence ineligible.

If they fail to be registered they can still spend their money campaigning. They just need Mike Smith’s permission and for their spending to count as part of the cap for Labour – the party they have voluntarily joined and are involved in.

[34] The extent of enquiry which the Commission may make, and the processes which it may undertake, to determine whether, in particular, s 17(1)(c) is met, based on the application made under s 15(3), is not specified in the Act. It is a matter for the Commission. The Commission has power, under s 6(2)(aa) of the Electoral Act 1993 “to make such enquiries as the Commission thinks necessary for the proper discharge of its functions”. I do not consider that it is appropriate for this Court to direct the Commission as to how it should go about the performance of its functions, or how it should conduct its enquires.

This is where the EPMU counter-claim is turned down. The Electoral Commission I am sure will be pleased they retain discretion as to whether to allow members of the public, like myself, to offer an opinion on matters before them.

[35] There will be a declaration that word “person” in s 13(2)(f) of the Electoral Finance Act 2007 has the meaning given to it by s 29 of the Interpretation Act 1999.

I doubt there will be an appeal. I can probably now reveal that the legal team were so confident of victory that they were talking of going to the Supreme Court if necessary. In fact I suspect they may even be a bit disappointed they won, as it means no appeal work 🙂

Labour now have to face the possibility that the law they rammed through Parliament may end up making their largest ally the biggest victim.