Scotland Against Crooked Lawyers also against crooked elections

Representatives of the pressure group Scotland Against Crooked Lawyers are a familiar sight to those in and around Edinburgh.  Their presence outside the Scottish Parliament offices – prior to the move to Holyrood – acted as a useful indicator to those travelling by LRT bus that it was time to get off for the courts.  The group stood at the Scottish parliamentary election attaining 322 votes in Lothian region, some 139 votes ahead of the Enterprise Party but 545 votes behind Adam Lyals Witchery Tour party (which incidentally also outperformed UKIP).  The SNP topped the regional list with 76,019 votes – amounting to some 26.5% of the vote.  Scotland Against Crooked Lawyers had 0.1% of the vote – and consequently lost their deposit.  There were 9,084 spoiled votes in Lothian region, and a regional turnout of 287,039 valid votes.

 For the perseverant Scotland Against Crooked Lawyers that was not the end of the story.  They raised a sheriff court action against the City of Edinburgh Council.  Their plea was simple, relying on the well-known problems in the running of the election (see entries 692, and 708)

"the defenders ran the election on behalf of the Scotland Office. That the pursuer paid the defender £500 deposit on the 2nd April 2007 for himself and John Lovie to stand in the Lothian Region. That the pursuer was never informed that the procedure for the 2007 election had been altered and entirely different from the 2003 election. That the pursuer only became aware of the changes and the advise (sic) given to the defender on the day of the election and after the election it was made known that the defender had been advised not to run the reginal (sic) and the constituency votes on the same ballot paper. If the pursuer had been made aware of the changes he would not have paid the deposit. That as a result of the changes made thousands of ballot papers were made void and putting the pursuer at a disadvantage in the election. The circumstances are exceptional and the pursuer has contacted the defender requesting his deposit returned, the defender has refused, making this action necessary"

The case was heard by Sheriff Lothian who dismissed the small claims action.   Scotland Against Crooked Lawyers appealed.  The case has been decided by Sheriff Principal Bowen on 29th May 2008 (at )

He noted that the case was based on two grounds,

"The first is that the election was, in [their] words, a fiasco because of the large number of spoiled papers arising from a lack of clarity in the instructions as to how to vote. This, [they] maintained, constituted in effect an unsatisfactory service provided by the defenders for which his organisation was entitled to reimbursement. Second, [they] would maintain that because of the large number of spoiled ballot papers it was impossible for the defenders to say that the party he represents failed to secure one twentieth of the vote, that being the statutory justification for forfeiture of the deposit (see Rule 67(7)) of the Scottish Parliament (Elections etc) Order 2007 (SI 2007 No 937). "

 The appeal is dealt with briefly by the sheriff principal at para (7),

 "Whilst I have a degree of sympathy for Mr Burns and the organisation he represents in having taken part in an election which was well recognised as having a number of unsatisfactory aspects, I am nevertheless in no doubt that this action is wholly misconceived. Until such time as the pursuers successfully challenge the election return, the result stands. That result did not, it would appear, produce a figure which showed that the pursuers had obtained one twentieth of the requisite vote and in consequence by operation of law their deposit was forfeited. It is to no avail to suggest that the spoiled ballot papers might have contained sufficient votes to put the pursuers into a more favourable position. So long as the election return stands the spoiled papers are invalid and do not count. The election result itself could only be challenged by virtue of a petition to the Court of Session in terms of section 120 of the Representation of the People Act 1983. In consequence the present action might be viewed as a side door attempt to challenge the election result which the law does not permit. Equally the concept of applying rules applicable to the satisfactory supply of goods and services is wholly inapplicable to the present circumstances. The defenders carried out their statutory function of conducting the election and produced a result which stands as a matter of law. They were not providing "a service"."