Law less ordinary | Parliamentary and electoral law

“Politicians are an unusual bunch,” says Gerald Shamash, of Steel & Shamash – the Labour Party’s go-to legal advisers.

Shamash would know, having advised the party since before the 1992 general election and been a councillor in Barnet for eight years.

“I understood what motivated politicians and that enabled me to give advice,” Shamash continues. “The irony of it was that I went into law hoping to become a politician.”

Though his career hasn’t turned out quite as he thought it might, Shamash has gained an enviable reputation among MPs – “The Commons runs on word-of-mouth, and they take a while to trust you” – and can be found on any number of high-profile cases, especially in the run-up to elections.

MPs – not always as bad as they’re painted

One such piece of work is advising the three Labour MPs for Rotherham bringing a case against UKIP MEP Jane Collins for libel and slander and Rotherham UKIP group leader Caven Vines for libel after the pair made remarks about them in relation to the town’s paedophile ring scandal.

Although Rotherham represents the extreme of this type of case, MPs often approach lawyers with reputational work, much of which is the result of smear campaigns, orchestrated by other politicians.

For example, there was the case of Lib Dem MP Elwyn Watkins and Labour’s Phil Woolas – a result of the fall-out from the 2010 general election. Watkins alleged that Woolas had made false allegations in his campaign leaflets, which swayed voters. The allegations ranged from Watkins being in the pay of an Arab sheikh and making statements that pandered to fanatics and militants, to illicitly channelling funds from a foreign donor. The first case of its kind in 100 years, it was high-profile and demanding.

Piers Coleman, a partner in K&L Gates’ real estate department who has had a sideline in electoral law since 1976, acted for Watkins.

“The burden of proof was very high – that was the challenge,” he says. “We had to prove to the criminal standard – beyond all reasonable doubt – that Woolas had deliberately made false allegations and that was difficult.”

Coleman was fortunate: part of the burden of proof came in the form of an email sent from Woolas’s agent, which read, ‘We have to make the white folk angry’.

“When we got our result and it led on the News at Ten it was very exciting,” Coleman recalls. “It’s pretty strong stuff and if your intention is to mislead the vote of even one person with that sort of conduct it is against the law.”

“It reminded me of the situation in the US, with broadcasts where one candidate will say appalling things about their opponents. It wouldn’t be allowed here.”

Lobbying and bill making

Another key point of difference between the US and UK systems is that of financial regulation, especially with governance around lobbyists.

“The rules on transparency of funding help us to have a level playing field, which is what as a country we have set out to have,” explains Bates Wells Braithwaite partner Melanie Carter. “We don’t want it to be like America, where some say that the Republicans have huge business power behind them.”

Carter has received many instructions on the back of the 2014 Lobbying Act, put in place to govern third party campaigning, among other issues. It was intended to make lobbying a more transparent industry, but has been labelled as tantamount to a gagging order by charities including Friends of the Earth and the Royal British Legion.

The act did not focus on lobbyists for big business, instead seeking to govern expenditure by small organisations by ensuring that they were registered with the electoral commission and therefore subject to a cap. The threat of criminal sanctions added to the outraged reaction the bill produced, with the Labour Party pledging to abolish the bill if elected.

Bates Wells was appointed as special advisers to Lord Hodgson, who is conducting the official review of the act, as a result of its existing work around lobbying and bill making.

Carter’s engagement by campaigning group 38 Degrees and Conservative MP Zac Goldsmith is one such example of that work. “They had been campaigning for sometime that, were a community to lose confidence in its MP, then it should have the power to petition for a recall, which could trigger a by-election.”

The coalition government has now enacted the Recall of MPs Act. When it was a bill, the group believed that the government commitment did not go far enough, bringing Carter in to draft an ideal bill.

“I then fused our ideal bill with the government’s bill,” Carter explains. “It was fascinating to do it from scratch. Our amendment didn’t get through, but it will raise its head again. It would put the power in the hands of the electorate, rather than the House of Commons, which is what the government’s Act relies upon.”

Getting a job as an electoral lawyer

Politics is often referred to as showbusiness for ugly people: backstabbers galore, the chance to shine before ungraciously falling from favour, and fiercely competitive. Electoral law is no exception when it comes to getting in.

“It’s an interesting area and very few people do it,” muses Shamash. “Maybe they are doing something less interesting and more lucrative. It is very difficult to pick up work other than from the main parties. And as a trainee you would have to pick the right firm. It is not easy – but it is not impossible.”

Carter came to the area through a different route, starting out as an in-house lawyer in government. “I learned a huge amount,” she says. “It’s the best training you can get, particularly for drafting. I took a lot of bills through parliament and drafted lots of statutory instruments.”

While many lawyers divorce their personal opinions from their work, others thrive on the satisfaction gained from fusing the two. So where do electoral lawyers stand?

“I haven’t ever felt conflicted – though that is not to say it wouldn’t happen,” says Carter. “But in election work, this kind of conflict rarely arises.”

Coleman meanwhile, points to his work for politicians across all parties as evidence of his lack of party political bias, while Shamash sums up his view in succinct fashion.

“I have always worked on a very simple premise,” he says. “I have my own views but ultimately my client is my client – whatever I think of them I will do the very best I possibly can.”