People who were denied the right to vote at the general election can sue the Electoral Commission, according to Geoffrey Robertson QC. Interviewed last Friday, Robertson suggested that disenfranchised voters would receive compensation of at least £750. That just happens to be the figure that Lord Pannick QC had thought prisoners would be awarded if they took action against the government for Labour’s failure to comply with a finding by the European Court of Human Rights that the UK’s blanket ban on votes for convicted prisoners was unlawful. Though it may not be very practical for individual prisoners to sue, Pannick’s advice appears broadly sound. But Robertson’s promise of compensation for those left queuing outside the polling station last Thursday evening seems rather less convincing. For a start, there would be problems of proof. Prisoners should be able to establish where they were on May 6. But how could other voters prove they were outside a polling station when the clock struck 10? Even if you were photographed by your friends, surely you accept the risk of something going wrong when you turn up nearly 15 hours after the polls opened? And what arrival time would be regarded by a court as reasonable? Could people expect to vote at 9.55pm? Or 9.45pm? Or 9.30pm? Next, why sue the Electoral Commission? Organising elections is the responsibility of acting returning officers – usually chief executives of local councils, though acting independently of their employers. The commission may appear ineffective but it merely sets standards and issues reports. Its guidance says that ‘no one may be issued with a ballot paper after 10pm even if they are inside the polling station and waiting to receive their ballot paper’. That strikes me as an accurate summary of the law. The campaign group Liberty suggested that legal action might be possible under the Human Rights Act 1998. This requires public authorities – including returning officers – to act in a way that is compatible with the rights set out in the European convention. One of those is the right to free elections ‘under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature’. It is, of course, highly arguable that the conditions under which our first-past-the-post elections have been held do not meet that requirement: that is what the Liberal Democrats have been saying for decades. It is equally arguable that a voting system which allows a third party to hold the balance of power does not meet the requirement either. But it is much harder to argue that a system under which a few hundred voters in some constituencies have found themselves disenfranchised does not ensure the free expression of the people. It is not unlawful for public authorities to act incompatibly with human rights if they are bound by primary legislation. There are also restrictions on the damages that may be claimed for breaches of human rights. Section 8 of the 1998 act requires the court to take account of the consequences of an unlawful act by a public authority in deciding whether an award of damages is necessary ‘to afford just satisfaction’ to a claimant. If locking out a few late voters would have had no consequences for election, it is hard to see how damages would be awarded by a court in the UK. What about trying to get the election re-run in a constituency where a lot of people were unable to vote? A dissatisfied voter may present a petition which may be tried by an election court. But there is little chance of a second poll unless the number of people who were locked out in a particular constituency is more than the winning candidate’s majority. Even then, there might need to be some evidence that the non-voters were likely to have supported the candidate who came second rather than, as seems more likely, that they would have voted in proportion to the constituency as a whole. That is because section 23 of the Representation of the People Act 1983 says that ‘no parliamentary election shall be declared invalid by reason of any act or omission by the returning officer or any other person in breach of his official duty… if… the election was so conducted as to be substantially in accordance with the law as to elections and the act or omission did not affect its result’. This get-out clause does not excuse failures by returning officers. Elections should be decided by the people as a whole and not by a single individual – as happened when the US Supreme Court decided the Bush v Gore case in 2000. Of course, there should have been enough staff at polling stations to cope with late arrivals. Journalists are not the only people who leave things to the last minute. But the popular assumption that every wrong should lead to litigation and compensation is a worrying one. If all this had happened in some other European countries it has been suggested that the disenfranchised voters might have stormed the polling station instead of queuing politely in the rain. That might have solved the problem: section 42 of the 1983 act says that the proceedings have to be adjourned until the following day if they are ‘interrupted or obstructed by riot or open violence’. I am not, of course, putting this forward as a serious suggestion; for one thing, rioters risk arrest. But prisoners on remand are still entitled to vote.