It is normal practice, when a Government Department proposes to undertake a contingent liability in excess of £300,000 for which there is no specific statutory authority, for the Minister concerned to present a departmental minute to Parliament giving particulars of the liability created and explaining the circumstances; and to refrain from incurring the liability until 14 parliamentary sitting days after the issue of the minute, except in cases of special urgency.
Returning officers for UK parliamentary elections in England and Wales are appointed under section 24 of the Representation of the People Act 1983 (“RPA 1983”). The post is an honorary one, held by the sheriff of a county or the mayor or chairman of a local council. However, in practice, under section 28 of the RPA 1983, the returning officer discharges functions through an acting returning officer, who is usually a senior officer in the local authority.
In Scotland, under sections 25 and 41 of the RPA 1983, returning officers for UK parliamentary elections are appointed local authority officers.
For the purposes of UK parliamentary elections, returning officers and acting returning officers throughout Great Britain—referred to below as “ROs” and “AROs”—are independent officers. They are separate from both central and local government. As a result, they are exposed to a variety of legal risks varying from minor claims for injury at polling booths, to significant election petitions and associated legal costs.
ROs and AROs make their own arrangements to insure themselves against any risks they face in taking forward their statutory duties at local and UK parliamentary elections. The cover obtained usually forms part of the local authority’s own insurance arrangements.
In a small sample of AROs from the Cabinet Office’s electoral policy coordination group, all provided details of existing insurance cover in place with the local authority that extended to cover the AROs conduct in relation to UK parliamentary elections.
The upper limit of [Professional/Officials Indemnity] cover in the sample ranged from £5 million to £15 million, with excesses ranging from nil to £500,000.
This insurance mainly sought to cover:
liability for damages arising out of wrongful acts in the performance of official duties;
reasonable legal expenses for defending any proceedings; and
costs arising out of holding another election.
While this insurance, coupled with local authority’s employers and public liability insurance, will cover the great majority of risks to which ROs and AROs will be exposed to at UK parliamentary elections, they could ultimately be liable for claims of a type not covered by insurance policies. They could also be liable for claims that exceed the insurance limits in existing cover.
In light of this, the Cabinet Office proposes to provide ROs and AROs with a specific indemnity for UK parliamentary elections to supplement the insurance policies that have been arranged locally. The indemnity will fund ROs and AROs for costs—including reasonable legal costs and reasonable expenses—incurred in connection with a UK parliamentary election, which arise in relation to their discharge of responsibilities as RO or ARO but fall outside of the scope of the insurance cover which they have arranged locally, and where all other forms of recourse have been exhausted.
The indemnity will be limited to the extent that:
it will not cover any costs which arise in whole or part from any deliberate or wilful negligence by an ARO/RO;
it will not generally cover any excess costs which the ARO/RO has negotiated on his/her insurance policy—although individual claims for excess costs will be judged on their merits;
it will not cover situations where the ARO/RO’s insurance policy offers an alternative means of cover;
it will not cover any reduction, under section 29A of the Representation of the People Act 1983, in the amount to which the RO or ARO is entitled for his/her services;
it will not cover any penalty imposed in relation to a criminal offence;
it will not cover any claim relating to the carrying out of electoral registration duties; and
it will not cover any claim relating to the use of a motor vehicle where such use should have been covered by a valid insurance policy but was not.
The indemnity will cover costs arising in relation to UK parliamentary elections, including by-elections, where the date of the poll is on or before 31 March 2020. Any claim must be made within 13 months of the poll at the election to which it relates.
The Government gave similar indemnities in relation to previous UK parliamentary general elections.
The likelihood of the indemnity being called is very low. The volume of claims which have been made at previous national elections has been very low. So far there have been no claims against the indemnity given in respect of the recent European parliamentary elections on 22 May 2014. The largest claim met under previous Government insurance or indemnity arrangements for a national election was £24,035.75 at the 2009 European parliamentary election. Minor injury and damage claims met under Government insurance or indemnity arrangements at national elections have amounted to less than £10,000 over the last decade.
However, the possibility of a successful claim in the future cannot be ruled out. The potential risk associated with election petitions could be significant. For example, the costs for the Winchester election petition in 1997, following the general election of that year, amounted to £250,000. If a petition involving an ARO or RO went to a full trial and ran for several days it is conceivable that the bill for legal costs could run into millions of pounds. It is also conceivable that there could be more than one occurrence associated with a single election. The costs of an election petition might not be completely covered through existing insurance arrangements and may require the indemnity to be called upon.
The indemnity is therefore unlimited. If the liability is called, provision for any payment is likely to be met from the Consolidated Fund.
The Treasury has approved the proposal in principle. If, during the period of 14 parliamentary sitting days beginning on the date on which this minute was laid before Parliament—or, if there are fewer than 14 such sitting days in this Parliament, the period ending with the last sitting day in this Parliament—a Member signifies an objection by giving notice of a parliamentary question or by otherwise raising the matter in Parliament, final approval to proceed with incurring the liability will be withheld pending an examination of the objection.