UK’s Electoral Commission rules that “England worth fighting for!” is OFFENSIVE!
I am in the process of Judically Reviewing the Electoral Commission and have succeeded to get Permission to Issue the Judicial Review and the matter is now proceeding to a full hearing.
Below is the text of my witness statement.
What do you think and how do you rate our chances?
1. “ I make this statement in support of the English Democrats’ Application for Judicial Review. The history of the matter is first reiterated in this statement.
The Respondent, the Electoral Commission, without any express statutory authority, has arrogated to itself not only an alleged implied power but also an alleged implied duty to alter existing registrations on the Statutory Register of Political Parties. They claim that this power/duty empowers them to make alterations without prior consultation with the affected political Parties or with the public and to also delete existing registrations without notice on the basis of their own views. They further claim that this alleged implied power/duty to delete existing registrations is unrestrained by any Equality Act 2010 duties. The Applicant rejects these claims.
The Electoral Commission is charged under the Political Parties, Elections and Referendums Act 2000 with being the Registrar of the Statutory Register of Political Parties.
A political party which is registered with the Electoral Commission can stand in elections and use one of twelve Descriptions which are registered with the Electoral Commission on its register and use a registered Emblem (aka a logo), but if not registered, or a Description is not registered, or the Emblem is not registered, then that cannot be used on any ballot paper in any election.
The removal of a Description or Emblem from the Register therefore means that the Description or Emblem cannot be used on any ballot paper. Removal therefore, if cavalierly used, has potentially very draconian effect on the ability of a Party to take part in democracy and also curtails the democratic choice available to the electorate.
When it was first set up the Electoral Commission faced accusations that the only reason why the then Labour Government had created such a body was for partisan advantage against the Conservative Party, in particular to try to prevent Lord Ashcroft from continuing to fund the Conservatives.
Perhaps in response to this, the Electoral Commission initially approached its work in a sensitive manner and, so far as the Applicant is aware, did not seek to over-regulate or bully the registered Parties. As part of this approach, if paperwork had not been returned or completed in time, the Electoral Commission generally politely reminded the Applicant of whatever needed to be done.
The Applicant mentions the context of the creation of the Electoral Commission being Labour partisanship. Also the original commissioners themselves were all Establishment figures with, it seems to the Applicant, a distinct bias towards Labour. That approach seems to continue and, in particular in the context of this application, the Party whose interests being protected by the Electoral Commission’s heavy handed approach was Labour in the Batley and Spen by-election. The Applicant is suspicious that this advantage was given deliberately as a product of continuing partisan bias.
The Applicant has already experienced the Electoral Commission’s new heavy handedness, as without prior consultation the Applicant’s Emblem was removed from the Register on the specious grounds the Emblem had more than six words on it and also had a “tick box” for an English Parliament, which is one of the core campaigning issues of the Applicant, as part of its Emblem. This was an Emblem that had been registered for at least 10 years and had given rise to no known complaints or confusions, yet the Electoral Commission took upon itself to remove the Emblem because they decided to change the way they looked at Emblems, without any statutory authorisation for doing so. The Applicant applied for Permission to Issue Judicial Review and obtained it. The Learned Judge in that case pointed out that the Applicant’s case was clearly arguable because there is no expressed statutory authority for the Electoral Commission’s new found regulatory activism and the Order was included in the supporting Bundle.
After the murder of the Labour MP, Jo Cox, in her constituency of Batley & Spen, the Labour Party did not trigger by petition to the Speaker the requisite by-election for months, in order, no doubt, to proceed with its Leadership contest. In the interim the Establishment parties, contrary to all previous practice, announced that they were not going to stand against Labour.
However other parties began to announce that they were going to stand, the first being Liberty GB.
It is the Applicant’s understanding that following the announcement by Liberty GB that they were going to stand, the Electoral Commission unilaterally and without prior consultation removed most of their registered Descriptions; no doubt relying upon the same alleged power/duty that is in contention in this Application. The Applicant believes that the Electoral Commission may well have removed other Descriptions from other Parties as they announced that they wished to stand.
In the case of the Applicant the removal occurred once the Applicant stated that a candidate for the English Democrats would be standing, which was done after a proper period of respect and mourning and after the funeral of Jo Cox.
Following that announcement the Electoral Commission removed the long registered description which contained the words “England worth fighting for!”
The Applicant accepts that there are probably very few people working for the Electoral Commission who are patriots and that they may not like the idea that people will fight for their country, but it is contended that politically partisan Left-Liberal opposition to patriotism does not justify the Electoral Commission in finding that such a description is legally “offensive”, nor, it is contended, does the Electoral Commission have the latent power or latent duty that it contends for.
4. Precis of Grounds of this Application
(i) The Electoral Commission does not expressly or impliedly have the power to retrospectively alter Registered Parties details without agreement from the Registered Party.
(ii) There is no implicit duty for the Electoral Commission to change registrations in accordance with its changing perceptions, or opinions, or otherwise.
(iii) Any proposed amendment to the Register or other changes should only be done after consultation with the relevant registered party and perhaps also only after a public consultation if appropriate, in a manner that is similar to the Commission’s process in registering changes which have been applied for by a Registered Party or other registrant.
(iv) The exercise of any powers, and especially any statutory powers, to alter the Register by the Electoral Commission is subject to the statutory requirement not to discriminate directly or indirectly, contrary to the Equality Act 2010, either on the grounds of nationality, national origin, national identity (in this case specifically “English”) or on the grounds of philosophical belief (in this case specifically “English nationalism”).
5. The Decision
The decision to remove one of the Party’s “descriptions” which is challenged in these proceedings was notified to the applicant in the Electoral Commission’s letter dated the 7th September 2016.
The notification from the Electoral Commission was ex post facto and without prior consultation and stated:-
“I am writing to inform you that under the Commission’s duty to maintain the register of political parties, descriptions and emblems in accordance with the requirements of the Political Parties Elections and Referendums Act 2000 (PPERA), we have conducted a review of your party identifiers. This has resulted in one of your party descriptions being removed from the register for reasons of not meeting the statutory requirements of s.28A PPERA.
The review was carried out as part of the Commission considering the register in the context of the forthcoming Batley and Spen UK Parliamentary by-election (date to be announced), taking into account the likely impact on voters there of the tragic circumstances that have caused the need for a by-election. Your party has announced that they will be standing a candidate in this by-election.
The law requires the Commission to form an opinion on whether an identity mark would be ‘offensive’ and we consider this test in terms of voters exercising their democratic right to vote without encountering offensive material on the ballot paper.
The review identified that the following registered party description is in the opinion of the Commission offensive.
“English Democrats – England Worth Fighting For!”
The Commission has removed the above description from the register of political parties for Great Britain.
We considered the description offensive in the context of the forthcoming by-election in that the description could reasonably be perceived as a call to, or condoning, violent means to further a particular political view.”
6. The Challenge
This was challenged in the English Democrats’ letter of the 12th September, in which the English Democrats stated:-
“For the record we do not accept that the Electoral Commission has the legal right to do this to existing registrations. Also your decision is manifestly absurd and unreasonable and also repugnantly offensive to any patriotic English people.”
A protocol letter was sent on the 12th September 2016 which challenged the removal decision on the grounds that the registered “description” has remained unchanged since it was registered. There is no relevant statutory provision or requirement for the Electoral Commission to disallow our description once registered and accordingly it is ultra vires for the Electoral Commission to do so. The English Democrats object to any change or removal of its description.
The Electoral Commission responded in their letter of the 15th September:-
“The Commission and your party are not in agreement on this matter. That is of course regrettable, but I trust you will understand that the Commission must discharge its statutory role on party registration in the manner it considers proper and lawful.”
And the Electoral Commission further responded on the 21st September:-
“6. The Electoral Commission (‘the Commission’) has considered carefully each point in the letter before claim. The Commission disagrees that its decision is wrong in law on the grounds stated or at all. The Commission is confident that the decision was made properly in accordance with the relevant statutory tests, was a reasonable one and that it has given the Party sufficient explanation of its decision in its letter of 13 September 2016. The Commission will strongly defend any challenge to its decision on the basis of the matters set out in the letter.
Legislative provisions in PPERA relating to party registration, and how the Commission carries out its role
7. Under section 23 PPERA, the Commission is responsible for maintaining the register of political parties that intend to contest all relevant elections. The Commission’s duties in this respect are not limited to the consideration of an application for registration only and the duty is a continuous one.
8. If a political party wishes to use a description on a ballot paper, that description must be registered under Section 28A PPERA in accordance with the statutory criteria set out in. One of the statutory criteria, section 28A(2)(c) requires that the Commission shall not register a description which in the Commission’s opinion is offensive.
9. In discharge of its function to maintain the register in the context of the Batley and Spen by-election expected to take place on 20 October 2016, the Commission carried out a review of the register to ensure it continued to meet the legislative requirements. The outcome of that review was that in the Commission’s opinion the description was offensive and fell within the section 28A(2)(c). Accordingly it was required to discontinue the inclusion of the description from the register.
10. The Commission notified its decision to the Claimant on 13 September 2016. In that letter the Commission explained in sufficient detail its response for the discontinuance. It explained that it had undertaken a review of the Register in the context of the forthcoming Batley and Spen UK Parliamentary by-election. It explained that the review took account of the tragic and violent circumstances leading to the death of the sitting MP Jo Cox which necessitated a by election and the likely impact on voters in that constituency of this. The review took account of the fact the claimant had confirmed its intention to stand a candidate at that election and thus the potential of using the description in the by election. The review considered that the existence of the description of the ballot paper as possibly a call to violence to further a particular political view could be regarded as offensive.
11. As a result the description was removed from the register. Not to remove the description would have resulted the Commission being charged with failing in its duties under section 23 PPERA and the non-compliance with s 28(A)(2)(c).
12. The Claimant states that the description was not offensive yet provides no support for this assertion. In any event, the Commission is required to form its own view on whether a party identifier is offensive and cannot substitute its opinion with that of another.
13. The Claimant states that the removal of the description amounts to unlawful discrimination against ‘English nationalism and against all patriotic individual English people to claim that it is offensive’. The Claimant’s opinion on discrimination cannot be taken into account by the Commission for reasons given above in paragraph 12. Further discrimination is not part of any statutory test set out in section 28 (A)(2) PPERA and accordingly must be disregarded as an irrelevant factor in deciding whether the description was allowed to continue on the register.
Decision making process
14. The Commission’s position is that no consultation or appeal with a Party is required or would serve any purpose where the continued existence of a description on the register can reasonably be regarded as unlawful in the context of the forthcoming by elections. This is not a case where the Commission was proposing a change of policy meriting consultation, this was a case where the Commission had no option but to discontinue the inclusion of the offensive description in order to meet the requirements of section 23 and 28(A)(2 PPERA. As regulator, the Commission is required to maintain a register of political party names and associated descriptions that complies with the law. A delay by the Commission in taking its decision in order to provide an opportunity of appeal in these circumstances is not a ground that would justify a departure from its statutory and regulatory duties.
15. The decision does not affect the Claimant’s ability to stand candidates under its party name, using the party name or any of the other party descriptions or emblems in this or future elections. It further does not prevent the Claimant or its candidates from expressing views as part of any campaign or how they present their campaign material.
16. The Commission has advised the Claimant that it may register another description and it has waived the fee for this should the Claimant apply to do so before the end of the month….
20. The letter before claim shows no arguable basis upon which a successful legal challenge may be brought. Accordingly, the Commission will strongly defend any challenge to its decision on the basis of the matters you set out in your letter before claim and reserves the right to seek a court order for costs in any such challenge. In light of the above, we invite you to reconsider your position.
7. The Response
The Applicant therefore responded on the 27th September as follows:-
“Your response clearly flies in the face of the Judge’s decision in the previous Judicial Review Permission to Issue Application (a copy of which is enclosed herewith for your ease of reference), in which it was made clear that our point was self-evidently arguable, in that you have no explicit statutory authority for altering, in effect retrospectively, the Register. This would be hardly surprising to any English lawyer since it is a fundamental precept of English Common Law. It is also a fundamental Tenet of Administrative Law that you (consult) prior to making a decision.”
The Commission responded on the 5th October by email:-
“I acknowledge receipt of both of your letters dated the 27th and received by the Commission on 29 September 2016 which will be considered by the Commission.”
The Commission responded again on the 18th October 2016:-
“We do not share your view that there is an issue of retrospectivity and do not accept your suggestion that we have altered the Register retrospectively. Rather the issue is whether there is a power to alter the register. The Commission is satisfied that the legislation provides such a power particularly that the legislation sets out a duty on the Commission to maintain a register that is compliant with the law. The full Response is set out in tis Pre Action Protocol Response letter of 21 September 2016.
You refer to a need to obtain consent prior to taking a decision. The Commission is not required – nor would it be appropriate – to obtain consent prior to the discharge of its public law functions. Again, the full response is set out in my letter of 21 September 2016.
You refer to a previous claim for judicial review which you did not wish to pursue as you withdrew your claim. Quite properly we have considered the issues you raised in your letter before claim on its own merits and without reference to and independent to your previous claim. I emphasise the decision taken to remove the description in this case was taken in the context and circumstances set out in the letter to you of 7 September and further set out in Pre Action Protocol Response letter of 21 September and has no bearing to the matters set out in your previous claim.”
a) The Costs of the Application for Permission
As regards the costs of the Application for Permission to Judicial Review the Applicant sought agreement to issue in its letters of the 27th September:-
“Your response clearly flies in the face of the Judge’s decision in the previous Judicial Review Permission to Issue Application (a copy of which is enclosed herewith for your ease of reference), in which it was made clear that our point was self-evidently arguable, in that you have no explicit statutory authority for altering, in effect retrospectively, the Register. This would be hardly surprising to any English lawyer since it is a fundamental precept of English Common Law. It is also a fundamental Tenet of Administrative Law that you consent prior to making a decision.
In the circumstances we respectfully request that you agree Permission to Issue Judicial Review should be granted. In the absence of such agreement we propose to place our letter before the Court with the request that you be ordered to pay Indemnity Costs and 10% additional sum on such costs pursuant to Part 36 of the Civil Procedure Rules.”
and 24th October:-
“The point is that in our last Application for Judicial Review is that the Judge made it clear that the question of the legality of your alleged power or duty to alter the register is arguable. It follows that permission to issue Judicial Review in this case will be granted. It is on that basis that you should consent to permission to Judicial Review being issued. Failure to do so is, with respect, an improper misuse of public funds on your part. Accordingly please reconsider our offer.”
In the premises the Applicant sought Indemnity costs of the Application for Permission.
b) Judicial Review Costs
Further to avoid costs threats from the Electoral Commission with the aim of trying to deter a challenge by threatening attrition the Applicant seeks a cap on the recoverable costs on the basis that this case should be treated as being a “Small Claim” with regards to the recoverability of legal costs and wrote accordingly on the 31st October:-
“Leaving that to one side, will you agree a cap on your recoverable fees in the event that you successfully defend the Judicial Review?
We would propose that the matter be treated from the costs point of view as a Small Claim with court fees and fixed fees being the only recoverable costs. Please let us have your response.”
The Electoral Commission responded on the 7th November:-
“Where the Commission is successful in litigation, it is our policy to seek the full amount of costs recoverable.
We do not agree to any cap on the Commission’s costs in the event that you issue proceedings”.
The Applicant therefore seeks an Order capping the Recoverable Costs of the Judicial Review.
All statutory bodies, including the Commission, are required to have regard to the Equalities Act 2010. The Commission implicitly admits it has not done so in claiming exemption without quoting any authority for such an exemption.
The decision challenged herein is directly or indirectly discriminatory against the English Democrats as an English “national” organisation and against English nationalism as a system of belief. By comparison it is inconceivable that the Commission would take any equivalent action against Scottish or Welsh nationalists. This is not therefore a “reasonable” decision from a legal point of view as it breaches discrimination law.
Furthermore the Commission appears to have been acting in a manner which was calculated both to advantage Labour in the Batley and Spen By-election and disadvantage any challengers as they not only took the decision herein challenged against the Applicant but also did likewise against the other parties that declared an intention to stand in that by-election.
10.The European Convention
In addition to the general English legal and constitutional points it seems for completeness worth mentioning that an attempt to change an existing provision in what amounts to a “licence” would appear to be prima facie in breach of Article 1 of Protocol 1 of the European Convention of Human Rights (the right to peaceful enjoyment of possessions). It appears that there is here an attempt to remove a licence to use an existing emblem without any of the justifications required under this Protocol. Nor would there appear to be any express legal provision which any presumed derogation from the general principles of the Protocol could apply to.
11. I now turn to matters subsequent to the issue of the Application for Permission. When this matter came on for its first oral hearing it was listed before Mr Justice Ousely on 29th June 2017 who pointed out that the Respondent, the Electoral Commission, on the basis of their case arguably should have restored the Description that they had removed once the alleged circumstances for its removal, namely the Batley & Spen By-election, had been concluded. He therefore directed that the Respondent should file a Witness Statement explaining why they had not reinstated it, which is why the statement of Mr Posner was filed. This statement adopts inconsistent claims:- 1) that there is no power for the Electoral Commission to restore a Description that they have removed without a formal application by the English Democrats. Whereas by contrast 2) they are claiming a power to remove it without a formal application or indeed any application or any consent by the English Democrats, indeed without any consultation, or prior notice, or right of appeal.
12. I would refer to the relevant correspondence for this period up until the next hearing which was listed before Mr Justice Gilbart on 21st September 2017. He granted permission to Judicial Review pointing out that, not only were the Electoral Commission claiming the right to remove Emblems and Descriptions as they have done in the case of the English Democrats without prior notice, consultation, right of appeal, or what I would suggest are the rules of natural justice, but seemed also to have oddly decided to define the word “fighting” as only meaning violence. In fact we all talk about “fighting Cancer”, “fighting electoral campaigns”, “fighting the good fight” for Christians, “fighting for life” for the seriously injured, etc., etc.
13. Mr Justice Gilbart granted permission to Judicial Review on the grounds of :-
(b) Rationality; and
(c) Lack of consultation
But he also wasn’t allowing the separate ground of Discrimination as that was subsumed under the grounds of rationality. Of those three permitted grounds I would therefore say as follows:-
a) The Applicant clearly stated that we considered that the decision both in this case and in the previous case relating to the removal of the English Democrats long-standing emblem that there were decisions that were made ultra vires because there is no express power to vary existing registrations without the consent usually given in the form of a formal application and payment of a fee to alter the registered emblem, or descriptions.
b) There is of course a very limited right of refusal to register emblems or descriptions based on whether it is probably thought that the proposed registration was illegal or if it would create confusion amongst voters. The former point is obvious that we could not have parties able to register descriptions that were, for example, a clear incitement of violence against a defined group. So far as the confusion point is concerned, this is somewhat more subjective. Therefore the decision may not be taken based upon fully objective evidence, but it naturally arises from the fact that registration of party names is only considered necessary as a result of what seemed to be a deliberate attempt to mislead voters into voting for the “Literal Democrats” rather than the Liberal Democrats at an election back in the late 1990’s. Prior to that incident there was no registration of party names, descriptions or emblems. There is therefore no traditional common law principle that applies that would support the Electoral Commission’s position.
c) The basic nature of English law is that an Englishman or Englishwoman has the unfettered right to do anything that is not expressly forbidden by law, which of course is in stark contrast to the so-called “civil” law systems on the continent which are derived from the tyrannies of Justinian’s Constantinople or Napolean’s France. “Civil” Law prohibits “citizens” from doing anything where they do not have the State’s permission to do it. Therefore in England every statute is a removal of an aspect of a citizen’s liberty and that is the basis of the common law rule that all such restrictions have to be express. The Electoral Commission is claiming the right to take away not only the pre-existing common law right of political self-description, but also even the rights which have been accrued by registration without there having been anything expressly stated in the statute which says they have the right to do that.
d) The Electoral Commission are not the police and therefore do not have police responsibilities or duties or systems of accountability. This purported right is therefore in my opinion somewhat equivalent to the registers kept by local planning authorities of registered planning permission. If the planners purported to be able to remove approved planning rights because the planning permission no longer fitted their current planning guide-lines, that would be a clear cut and illegal abuse of their position. Of course planning law was originally imposed upon for property owners to expropriate the general common law right of development of land in an analogous way to the Electoral Commission’s expropriation of the Common Law rights of political descriptions and political emblems which have been part of electioneering in England since at least the time of John Wilkes. The Electoral Commission are furthermore claims that the right to make such decisions based upon, in effect, their own personal and subjective feelings. There was so far as I am aware no evidence taken or any other objective method or even any proper criteria of assessing the description which was applied in this decision making process.
a) I believe that the Electoral Commission have acted out of their own personal political prejudices and not on any statutory or even objectively justified basis. The English Democrats are not by any common-sense criteria “extremist”, or even in any reasonable sense “far-right”. On the contrary we are democrats who want to see England’s political future and democracy properly protected. We campaigned for many years for “an English Parliament, First Minister and Government with at least the same powers as the Scottish ones within a federal UK”. In the last few years we have shifted towards campaigning for English Independence to put us fully on a par with the independence campaigns of the Scottish National Party for Scotland and Plaid Cymru for Wales. The English Democrats Party have never campaigned in a way that is anything other than “fighting” the political campaign in the normal, proper, legal and democratic way. Any suggestion to the contrary from the Electoral Commission is bitterly resented. Indeed it wouldn’t be too much to say that such an imputation is downright offensive!
b) The linkage with the Batley & Spen By-election is a little difficult to understand on any rational basis since the murderer of Jo Cox is of Scottish origin and is alleged to have said “Britain First” whilst attacking her. He also appears to be somebody with a long history of mental illness and to have been acting entirely alone. It would therefore seem that the English Democrats’ Description which was removed (“England worth fighting for!”) would be something that Thomas Mair would have (perhaps violently) have opposed!
c) The English Democrats Party is a democratic nationalist party and there is no instance of English democratic nationalists engaging in political violence.
d) In fact the parties that have engaged in political violence are either of the far-left or of far-right British nationalist parties.
e) It might be said that the English Defence League has been involved in some fighting. I would say firstly that the English Defence League, despite the word “English” being used, is not really about English nationalism at all, its focus and the focus of its former Leader, Stephen Lennon aka “Tommy Robinson”, is campaigning against Islamisation and Islamists and of course Islamic linked rape gangs, etc. which the authorities had simply failed to deal with. At no point, to my knowledge, has any representative of the English Defence League talked in terms of calling for an English Parliament or for English independence.
f) Indeed the English Defence League’s spokesmen when they do talk about national politics at all are very prone to confusing the word “English” with the word “British” which no English nationalist would do.
g) It should also be noted that despite some loutish and boorish behaviour by EDL demonstrators it has almost always in fact been, despite misleading media reports to the contrary, the internationalist/Marxist far-left !Antifa! (anti-fascist) activists who have been the attackers and who seem to set out with the intention of “fighting” in the way contended for by the Respondent herein.
h) It is a curiosity that the far-left should be in support of Islamism when it seems obvious from a common-sense point of view that Islamism is a profoundly conservative form of Islam and therefore in most respects the most hostile to the far-left. However the Far-Left seem to welcome anything which they think may undermine the Nation State or bring revolution to the “West”.
i) As can be seen from the correspondence I agreed to do an application to re-register the Description “England worth fighting for”. This was agreed on the basis that the Respondent would not take the point as to whether there was any implicit concession that a formal application was required. In fact they did exactly what I was anticipating which was to confirm their irrational stance that it is “offensive” to say that “England was worth fighting for”.
j) In my view this is a very standard left-wing position in which the aim of their politics is to undermine the idea of nations and of nation states. On the basis of my experience with the Electoral Commission I thought it highly probable that they would consider that the very idea of England being worth trying to protect would be “offensive”.
k) In my respectful opinion that is not a proper position for the Electoral Commission to take in law. As a bureaucracy given charge of dealing with the registration of political parties, they are not entitled to take into account their own political biases. They should have to behave in a manner that has objective justification. They have taken into account matters that they are not entitled to take into account and have failed to deal with this whole matter on the basis of objectivity and rationality rather than bias and prejudice.
l) The point of introducing Tony Linsell’s witness statement on English nationalism is to point out the essential reasonableness and common-sense basis of English nationalism which to be fair 50 years ago would have simply seemed to be pointing out things that were common-sense. Then of course that was before the Marxist’s Lefts “long march through the institutions” which has enabled their hatred of nation states and of patriotism to cloud the issue.
m) The approach taken by the Electoral Commission is therefore direct or indirect discrimination, since it is directly against English nationalists but it is also indirectly against all English people, since English people are far more likely to feel that they are in favour of campaigning, fighting, etc. for England than other types of people would be.
n) The Electoral Commission’s letter of refusal is dated of the 19th September 2017 and is stated to be from Josh Dunne, “Senior Registration Advisor”, inter alia, it says:-
“I regret to inform you that we have refused your application to register “English Democrats – England worth fighting for!”.
The law requires the Commission to form an opinion as to whether a party description is offensive and to refuse to grant an application for such a description to be registered. We came to the decision that your description is OFFENSIVE.
We have taken this decision after careful consideration. We note in particular:-
1. A current social and political context in which politically or ideologically motivated violent attacks have occurred in the UK.
2. The link is the description between “fighting” and “England”; the phrase “fighting for” is used in a different context in the description than other instances of its use on the register. We note that there have been instances of violence that have been linked to English nationalism.
We concluded that the description could likely be read as condoning potentially violent action to further a political aim, and that voters would find that offensive.”
o) No Instances are given which corroborate the Electoral Commission’s bald assertions of violence or any threat of violence as regarding English nationalists. That is because there are none.
p) The decision is explicitly taken because of the linkage between fighting and England which is not only irrational, discriminatory and offensive to English Nationalists, but is even more explicitly so when it is considered alongside what other descriptions mentioning fighting have been allowed on the Electoral Commission’s register.
q) I had a search done on the Electoral Commission’s website on the 14th October 2017 to see other usages of the word “fighting” or “fight” which there are registered.
r) The search used the Electoral Commission’s own search engine, so I do not vouch that this is an exhaustive list. The one that provides the clearest comparator is the Welsh “People First” Party who have a reported description:- “Fighting for Wales”. It would appear that using the meaning contended for by the Electoral Commission that fighting only means violence that “Fighting for Wales” is permitted but “Fighting for England” is not. I would submit that no clearer instance of illegal discrimination contrary to the Equality Act could be found. It would seem that the Electoral Commission are happy for Welsh nationalists to fight for Wales but not English nationalists to fight for England – despite the fact that it is actually undeniably true that Welsh nationalists have actually used violent means but English nationalists have not.
s) The extreme leftist Revolutionary Communist Party Britain (Marxist Leninist) is permitted the description:- “Fight for an anti-war government”. Leaving aside the irony implicit in such a description it would seem that the Electoral Commission are happy to have people violently fighting for an anti-war government. It would appear that the Electoral Commission are happy for communists, who after all have historically killed hundreds of millions of people, to fight for their sort of government but not English nationalists to fight.
t) Then we have the Socialist Equality Party which are allowed two descriptions mentioning fighting:- “Your future your fight!” and “Join the fight for social equality!”.
u) Then we have the Scottish Socialist Party which has been allowed the description of:- “Fight the cuts”.
v) Then the Marylebone Residents Party which has the description:- “Fighting for spaces for people”.
w) Even the British National Party is allowed to mention fighting. In this case:- “Fighting unsustainable housing because we care”.
16.Lack of Consultation
a) In neither this case, nor the previous one relating to our emblem, was there any prior consultation or prior notification before the decision to remove was taken. Also no right of appeal or of recommendation has been offered. In my view not only have the Electoral Commission failed to act reasonably and within the proper bounds of their discretions, but also their action is not fair. They are asserting a right to make decisions without there being any effective complaints procedure which allows an aggrieved party to pursue a substantive challenge to the conclusions that they come to, only because the Electoral Commission is implicitly assuming that their decision making processes are so effective that their decision will always in effect be unimpeachable. I do not consider that to be either a rational or a fair process. It is unfair for there to not be any ability on the part of the English Democrats or any other party adversely affected by the Electoral Commission’s use of their purported power, to challenge the decision therefore the procedure is unfair.
b) In this case there is no express power conferred by Parliament. The Electoral Commission is arguing for an implicit power from which it would follow that if there was such an implicit power there should also be the usual presumption that such power would be exercised in a manner which is fair in all the circumstances. Since there is no express statutory basis of the power or discretion, the Electoral Commission are, I believe, in effect arguing for an implied power of discretion which is untrammelled and unrestricted by any procedural requirements either prospectively, of consultation or retrospectively either of appeal or of making representations to reinstate. This is why they gave no opportunity to the Applicant to make representations either before or after the decision was taken and also did not pro-actively give any indication either that such a decision was going to be made or what items were allegedly being weighed up in making the decisions. This is therefore an extreme case of non-consultation by an administrative statutory body.”