The Electoral Commission, Regina (on The Application of) v City of Westminster Magistrates Court and Another: SC 29 Jul 2010

UKIP, a political party had accepted donations from an individual who had ceased to be a registered voter. An application had been made for forfeiture of the sums given. The court was now asked whether the Act created a presumption in favour of forfeiture, where it said that an order ‘may’ be made, and whether an order may be made for a lesser sum than that received.
Held: The appeal succeeded (Lords Rodger, Walker and Brown dissenting).
Lord Phillips said that the forfeiture of the entire sum donated was not universally necessary as a sanction: ‘Parliament plainly made the power to forfeit discretionary with the intention that the magistrates’ court should discriminate between cases where forfeiture was warranted and cases where it was not . . Parliament intended the court to consider whether forfeiture was a proportionate response to the facts of the particular case. This involves considering whether forfeiture is necessary to achieve either the primary or the secondary object of the Act. The most relevant consideration is whether forfeiture is necessary to prevent the retention of a foreign donation in the individual case. Proof of acceptance of a donation from an impermissible source should raise a presumption that the donation is foreign. If the party cannot rebut that presumption, forfeiture should follow. If the party succeeds in demonstrating that the donor was entitled to be placed on an electoral register, forfeiture should then depend on whether it is an appropriate sanction for such shortcomings as led to the acceptance of the donation. This will require consideration of culpability, the size of the donation and the effect that forfeiture will be likely to have on the political party. Partial forfeiture, if permitted (as to which see below), will enable the court to impose an appropriate sanction where total forfeiture would be disproportionate.’
The Court distinguished between donors who had not in fact registered and those who were not entitled to be registered to vote, and ‘If it is shown that the donor was in a position to qualify as a permissible donor by registering on an electoral register, the initial presumption in favour of forfeiture will have been rebutted.’ Nor was the power an all or nothing one: ‘the better interpretation is to treat the power to order forfeiture of an amount equal to the value of an impermissible donation as implicitly including the power to order forfeiture of a lesser sum. Such an interpretation is desirable to cope with the situation where the magistrates’ court is persuaded that the donor is not foreign. In those circumstances, total forfeiture of the donation may be disproportionate.’
Lord Rodger (dissenting) would dismiss the appeal saying: ‘Nothing could be clearer than the language used by Parliament and nothing could be clearer than the intention behind the language: political parties were not to accept donations from any individual who was not registered in an electoral register. In particular, parties were not to accept donations from individuals who were entitled to be registered, but who were not on the register. That situation would be adequately catered for by the simple expedient of the individual concerned getting himself registered: the party could then accept a donation from him.’ The use of the test of whether a donor was or was not registered simplified administration of the provisions greatly. There was only a narrow discretion not to award forfeiture and of the full sum.

Lord Phillips, President , Lord Rodger, Lord Walker, Lord Brown, Lord Mance, Lord Kerr, Lord Clarke
[2010] UKSC 40, [2010] 3 WLR 705, UKSC 2009/0205, [2011] 1 AC 496
Bailii, Bailii Summary, SC, SC Summary
Political Parties, Elections and Referendums Act 2000 58
England and Wales
CitedPadfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
CitedRegina v Tower Hamlets London Borough Council, ex parte Chetnik Developments Limited HL 1988
The House was asked whether a rating authority could refuse to repay rates which had been paid by mistake.
Held: ‘Parliament must have intended the rating authorities to act in the same high principled way expected by the court of its own . .
At First InstanceThe Electoral Commission v City of Westminster Magistrates’ Court Admn 22-Jan-2009
The UKIP had accepted donations from a man whose name through inadvertence was not listed on the electoral register. The commission sought to impose a forfeit of an equal amount.
Held: Parliament had rejected the suggested test of entitlement . .
Appeal fromElectoral Commission, Regina (On the Application of) v City of Westminster Magistrates Court and Another CA 19-Oct-2009
The UKIP party had accepted substantial donations. The donor had, through, he said, inadvertent error, had failed to ensure that he appeared on the electoral roll. The party had not taken all reasonable steps to verify his registration as required. . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 01 November 2021; Ref: scu.425184