As the Birmingham postal vote scandal threatens to cast a shadow over this election, specialist lawyers are working behind the scenes to advise the three main parties, reports Jon Robins
It was reported in the run-up to last year’s US election that the Democrat campaign had at least 10,000 lawyers trained in election law ready to be deployed in battleground states, including six legal ‘SWAT teams’ on stand-by, jets waiting, to descend on any contested state.
On this side of the Atlantic, we have yet to have a legal industry growing around elections and those dedicated legal specialists who advise the political parties could probably all fit into a polling booth. Firstly, there is Gerald Shamash, the partner at the London legal aid firm Steel & Shamash who has been advising the Labour Party since 1992 and stood as a parliamentary candidate in the 1979 general election. Then there is Sue Dixon, a partner at City firm Penningtons, which has acted for the Conservatives for more than 100 years, who has clocked up 27 years of service herself for the party; and finally there is Piers Coleman, a partner with City firm Kirkpatrick & Lockhart Nicholson Graham, who has also been legal adviser to the Liberal Democrats and their predecessors for more than a quarter of a century.
All three lawyers are currently on 24-hour call in the countdown to the 5 May election. Could the escalating furore about the failings of the postal voting system threaten a US-style lawyers’ free-for-all?
‘Over the last 25 years, what I have felt is a huge faith in the system and in the courts and the seriousness with which the courts takes these things,’ comments Ms Dixon. ‘But if the whole thing become a lawyers’ playground, that wouldn’t be right.’
Last week, the three lawyers reported that the 2005 elections seemed to be going smoothly. ‘It has been fairly steady as she goes so far,’ says Mr Shamash, from Labour Party HQ. ‘But one never knows what is going to be around the corner and what mantraps are waiting there laid for us.’
But it is still early days for the lawyers, says Mr Coleman. ‘They only tend to get involved in the last few weeks when the tempers really start to rise,’ he continues. ‘There are already quite a few cross words being exchanged at the moment and so relations between the major parties could get fairly poisonous.’
So what does it mean to be an election law specialist? ‘People tend to think it is like Coronation programme selling, in that it only comes up once every 50 years,’ Mr Shamash reflects. The solicitor stresses there are 11 different types of election – including general elections, parish and district council elections, by-elections, European and mayoral elections – as well as a growing awareness on the part of the electorate and candidates alike to challenge results.
‘People are much more aware of their rights now and they are much happier and more willing to challenge the results of elections,’ he adds. Nearly all his clients are either politicians, or somehow connected to the political system.
Not only did Mr Shamash stand as a parliamentary candidate, but he was also a Labour councillor for eight years in Barnet, north London. Does he see himself as more of a political, rather than legal, animal? ‘I am a lawyer,’ he replies. ‘I first went into the law hoping that it would turn into a political career and what actually happened was that my political career helped my legal career.’
His legal practice goes beyond what he calls the ‘pretty rarefied’ world of election law. For example, he advised on the Respect MP George Galloway’s expulsion from the Labour Party in October 2003. Does it help to have a political past with the party that you are advising? ‘It’s of use in understanding where they are coming from and what motivates them,’ he says. The lawyer says it is ‘a privilege just being able to give legal advice’ to the party. ‘I’m very careful about not straying into politics – that’s for the politicians,’ he adds.
‘I am an election law specialist but also a lawyer who understands politics,’ explains Mr Coleman. ‘I don’t play at politics or take part in the political world at all, but I do understand it.’ The lawyer first advised a Labour agent accused of election fraud when he was an articled clerk in 1974. He later represented Sir Ian Wrigglesworth, chairman of Tyneside-based UK Land Estates but then a Labour MP, who was facing election complaints in 1979.
Two years later, Mr Wrigglesworth, having been vindicated, joined the defection to the new Social Democrat Party, which needed a lawyer and turned to Mr Coleman. He supports the Liberal Democrats but adds: ‘I don’t think it’s a prerequisite for other lawyers. In fact, it is better to be dispassionate about whatever you do as a lawyer.’ He works principally with election law partner Jane Harte-Lovelace.
So what do the lawyers expect as 5 May approaches? According to Ms Dixon, one trend is that candidates are becoming increasingly personal in their electioneering, ‘so there are more threats of libel. Certainly that was true of the European and local government elections, but whether it’s going to be feature of the general election I don’t know,’ she says. ‘But people are far keener to look at what candidates have said in the past and then throw it back in their faces.’
Mr Shamash recalls serving an injunction in the middle of the night on the British National Party in the 1999 European elections over allegedly anti-Semitic campaigning material. ‘I had to have a conversation with Nick Griffin, the BNP’s leader, and that really wasn’t one of the most pleasant conversations I have ever had,’ he says. ‘But my real goal is to keep everything out of the press and below the waterline.’
So far the electoral law theme of the 2005 election has undoubtedly been the controversy over the postal vote fraud which, according to the Association of Electoral Administrators, has been ‘dominating every hour of every day’ for its members, who are responsible for ensuring that votes are legally cast and accurately counted. Local government lawyers often find themselves thrown into election work, including as returning officers.
Earlier this month, six Labour councillors were found civilly liable for electoral fraud at last year’s council election in two Birmingham wards, in a case that Richard Mawrey QC, sitting as election commissioner, said would ‘disgrace a banana republic’. All of the councillors strenuously denied the allegations. And at least three of them – Mohammed Islam, Muhammed Afzal and Mohammed Kazi – are challenging the Mawrey ruling in the High Court on human rights grounds.
With reference to the forthcoming elections, Alex Folkes, an electoral law expert with the Electoral Reform Society, says: ‘I am confident there will be a certain degree of fraud. The question is whether it will be incidental, small-scale fraud which tends to even itself out – for example, people finding out they are not registered because they have recently moved and use the poll cards of previous occupants – or not. I personally don’t think we are going to get a lot of Birmingham-style fraud.’
However, he rejects the view that there must be little fraud because so few people have been charged. He points to other recent cases of alleged fraud in Blackburn, Guild-ford and Hackney ‘involving people from very different backgrounds and each of the major parties’.
‘We are not alarmist and do not believe that the outcome of, say, the general election is likely to be seriously affected by fraud,’ he continues. ‘But we are concerned that the cases which have come to the public’s attention so far may be only part of a wider problem and we cannot rule out the possibility of some election results being open to challenge.’
Mr Shamash represented the Birmingham councillors up until the point, as the lawyer puts it, ‘we decided we were no longer able to’. What did he make of the Mr Mawrey’s view that the postal voting system was wide open to fraud? ‘It is an extremely dangerous route to describe the system as open to fraud,’ he says. ‘One has to see this in the context of the 7.7 million votes cast in the European election as well as the local council elections last May.’
His party remains ‘committed to the system’, but he adds that ‘there’s no doubt that the case has thrown up some interesting aspects of postal voting system that could perhaps be tightened up’. He says: ‘It’s as simple as that and one has to be careful about not throwing the baby out with the bathwater.’
Chaman Salhan, a partner at Birmingham firm Salhan & Co, took on the case of two of the councillors a week before it was set to be heard (see  Gazette, 14 April, 5). He said the procedures were ‘archaic’, with what was effectively a criminal trial run under civil procedures. He anticipated that more petitions would be brought after the election, especially in marginal seats.
Sue Dixon lives in the London Borough of Hackney, where there has been postal voting for three elections running. ‘My children were asking me how I was going to be voting,’ she says. ‘Now they aren’t going to influence me one way or the other but there are other family situations – for example, in a patriarchal family or employment situations – where people would be persuaded to vote in a certain way,’ she argues. ‘It destroys the secrecy of the ballot and corrupts the ballot.’
Ms Dixon argues that the only way around the possibility of abuse is to have individual registration of electors as well as the registration of voters’ signatures, plus the requirement that ballot papers go to an address that is notified separately in advance to the electoral administration officer.
The Electoral Reform Society is also calling for similar reforms. Mr Fowles maintains any significant changes would have to come after the election because they require a change in the law. ‘All we can do is seek better implementation of the current law and hope that the parties sign up to the code of conduct from the Electoral Commission. We hope that returning offices will not take any chances, but they don’t really have the power to investigate,’ he says. In the Birmingham case, he stresses that the returning officer and her staff felt ‘powerless to stand in the way of fraud’.
What did Ms Dixon make of Mr Mawrey’s damning judgment? ‘These were all problems that people foresaw,’ she says. Mr Coleman agrees. ‘It isn’t really helpful in legal terms because it said what we knew already. One thing that is relevant is that the commissioner was willing to conduct a wide-ranging investigation, including taking expert handwriting evidence.
‘It has set the precedent that the commissioner is really willing to investigate.’
Jon Robins is a freelance journalist
As well as its own legal advisers, each of the main political parties has its own group of lawyers who contribute to the discussion on legal policy, writes Jon Robins.
For the two opposition parties, this role can be particularly important. Fiona Gunn, secretary of the Society of Conservative Lawyers, explains: ‘The society provides support to the front-bench team, and that is especially important when you are in opposition because you don’t have a huge army of civil servants behind you.’
Barrister Nick Vineall is chairman of research at the society, and is standing as the Tory candidate for Morley and Rothwell in south Leeds. He says the aims and objectives of the group, which was founded in 1947, are to ‘support the Conservative and Unionist Party’, ‘uphold the principle of justice and democracy’, ‘consider and promote reforms in the law’ and ‘act as a centre for discussion of Conservative ideas’.
The society is currently chaired by Sir Nicholas Lyell QC, the Attorney-General from 1992 to 1997, has some 350 members, and is affiliated to the party. ‘In terms of research we provide back-up to the front-bench team for debates and speeches in Parliament and from time to time we publish pamphlets on policy issues,’ Mr Vineall explains. In particular, the barrister says Tory lawyers have contributed to policy on civil partnerships, consti-tutional reforms and ID cards.
Lord Lester of Herne Hill QC, president of the Liberal Democrat Lawyers Association, describes his 250-strong group as ‘the vital link between the party and the profession’.
‘The party uses us in a number of different ways and we get approached quite regularly on all sorts of legal issues by individual members of Parliament and peers and sometimes by councillors,’ explains the current chairman, Jonathan Marks QC, a common law silk from 4 Pump Court, in London. ‘I field those questions out to others if they are in specialist areas and we also supply a number of people for working groups.’
He cites the group’s influence in evidence in the criminal justice section of his party’s manifesto as well as policy on access to justice and constitutional reforms. ‘We have a very strong presence in the Lords which makes for a formidable team,’ Mr Marks adds. That team includes Lord Lester alongside Lord Goodhart, Lord Thomas and Lord Phillips. The group is also known for organising lectures through the 80 Club. Last year, Lord Justice Keene gave a lecture on constitutional reforms and, in the previous year, Paddy Ashdown, the UN’s high representative in Bosnia and former party leader, talked about reintroducing the rule of law post-conflict.
Fraser Whitehead, partner at national firm Russell Jones & Walker and a Law Society Council member, is secretary of the Society of Labour Lawyers. He describes the group as ‘an organisation that reflects legal opinion in the Labour party’. Vera Baird QC made Labour Party history in 2002 by becoming the first chairwoman of the society when she took over from the human rights solicitor Geoffrey Bindman. Ross Cranston QC, MP for Dudley North, is the current chairman. Mr Whitehead says there is a ‘hard core’ of about 12 to 15 lawyers who are on the executive committee, and about 45 activists.
But do government ministers listen to the Labour lawyers? ‘We have the ear of some, but not others,’ Mr Whitehead admits. ‘We have regular meetings with front-bench ministers, especially with the Home Office and the Department for Constitutional Affairs.’ Nor does the group always toe the New Labour line.
‘There are a number of areas where we haven’t always been entirely happy with current government thinking,’ Mr Whitehead says. ‘Legal aid is an obvious example, but we try and reach a view to enable everyone to move forward.’