Electoral law case update – Tom Tabori

Electoral law case update – Tom Tabori


CategoryNews Author Tom Tabori Date

With elections taking place this week (5 May 2016), Tom Tabori, in an article for the Local Government Lawyer, looks at the lessons to be learned from recent cases on electoral law.

Coinciding with the impending local elections and police and crime commissioner (“PCC”) elections on 5 May 2016, a spate of cases on electoral law have been promulgated or reported, one early case concerning this Thursday’s elections, two arising from the last local government and PCC elections, and another decided by the European Court of Human Rights (“ECtHR”).

The timing invites forecast of what may follow from the 5 May elections, as well as giving ideas to candidates unhappy with results and advice to local authority returning officers and their deputies when dealing with judicial reviews and statutory petitions.

The cases are amenable to division into two parts: nomination and election.

Part I: Nomination

R (Wilson) v Dover, Queen’s Bench Division (Administrative Court), 21 April 2016, unreported

The claimant had sought nomination to be a candidate in the PCC elections. He had attended a briefing held by the local authority returning officer’s deputy, informing him that the nomination forms filled out by his 100 supporters had to include their electoral number and be delivered in person. He failed to comply with either of those requirements, but attached a covering letter, stating (1) that the electoral roll on which the numbers were shown was not available yet; and (2) his belief that the returning officer would add this missing information. Rather than respond requesting the missing information or delivery of hard copies, the returning officer’s deputy declined the claimant’s nomination as invalid for failure to comply with the procedural rules. The claimant sought permission to bring a claim for judicial review of that decision, on grounds of procedural unfairness.

Cranston J refused permission, reasoning:

  1. Whilst in practice returning officers did seek to assist candidates, they were under no obligation to do so.
  2. Their obligation was to apply the rules, with deliberately narrow discretion, so as to avoid controversy and appearance of bias.
  3. This was particularly the case in the context of PCC elections, where the scheme set out by the PCC Elections Order 2012 is heavily mandatory and does not leave returning officers much discretion.

Wilson thus underlines the strict approach to procedural breach by candidates, and the limited role for judicial review in relation to elections.

Returning officers will note the value of holding briefings on procedure for candidates. Candidates will note not to rely on returning officers to correct their defects or offer them a chance to correct it themselves.

Jones v McNichol [2016] EWHC 866 (QBD), 24 March 2016

If Wilson showed the limits of fairness a ground of challenge to returning officer decision-making, Jones gives an example of the role retained by fairness as a principle relevant to electoral law. Jones is also instructive in exhibiting the remedies available to candidates when suspended by their party.

The applicant councillor had been suspended from holding office or representing the party pending investigation into alleged undervalued sale of property. The council appointed solicitors to investigate and, upon receiving the solicitors’ interim report that there was no case to answer of breach of the Members’ Code, withdrew its referral to the standards committee. The police did not consider any action should be taken in respect of possible fraud. The claimant’s ward supported the lifting of his suspension. However, the central party declined to do so, as the final report was still awaited and the investigation therefore incomplete.

On the day that the local party was due to nominate its candidates for the 5 May 2016 elections, the councillor made an urgent application for interim relief ex parte on notice, to lift his suspension.

McKerr J granted the relief sought, finding that there was a good arguable case [Lock International v Beswick [1989] 1 WLR 1268] that the respondent party had lost sight of “elementary fairness” in that:

  1. Whilst there was a strong interest in the party and the public and having a pool of candidates for selection whose integrity was seen to be beyond reproach, and whilst it is for the party not the court to select its candidates, the party must do in accordance with the rules and it must operate those rules fairly.
  2. Whilst it may be justifiable to await the outcome of an investigation, there comes a point when delay becomes unfairness.
  3. If the injunction was not granted, the local party would be denied its preferred candidate.

Those in audit and risk management for political parties will note the importance of having regard to whether investigations into suspended councillors will produce a result before damage is caused to the suspended person’s career. Candidates will note that local party support may be highly relevant in the face of central party unfairness.

Tahirov v Azerbaijan (Application No.31953/11), (2016) 62 EHRR

The facts of Tahirov show parallels with Wilson, but their outcomes diverge. The applicant had nominated himself as a candidate for the Parliamentary elections. The electoral code required each nomination to be supported by the signatures of 450 voters. The applicant submitted 600 to the Constituency Electoral Commission. The Commission refused his request for registration as a candidate as there were only 258 valid signatures. The Commission ignored the further documents submitted by the applicant, whilst the domestic courts had failed to adequately consider the applicant’s appeals and failed to provide adequate reasoning to validate their conclusions.

Before the ECtHR, the Government failed to disclose the qualifications of the working group experts within the Commission who had found the signatures to be inauthentic.

The ECtHR held that the requirement that candidates have 450 supporters pursued a legitimate aim, but that the procedure for verifying compliance with that requirement did not afford sufficient safeguards against an arbitrary decision. The working group had concluded that the inauthenticity was a probability, without specifying how high a probability or investigating further to arrive at a definitive conclusion. In the absence of sufficient safeguards, the Commission’s decision was arbitrary and therefore a violation of the right to stand for election, implied in article 3 of Protocol 1 (“A3P1”) to the ECHR.

It is one of the ECtHR’s cardinal principles that the rights enshrined in the ECHR must be effective and not illusory. Put to A3P1, Tahirov confirms that it is insufficient for safeguards to be contained in the electoral rules if they are not implemented in practice.

Returning officers and candidates will note the ECtHR’s emphasis, in contrast to the domestic courts, on the fact that the commission ignored the further documents submitted by the applicant and did not investigate further to arrive at a definitive conclusion.

Part II: Post-election

Parkinson v Lewis and ors. [2016] EWHC 725, 18 March 2016

Amongst the recent spate of electoral cases, the starkest instance of the tension between democratic will and procedural standards is Parkinson.

After a local election, a candidate who feels wrong has been done may only bring a petition under s. 127 RPA. The court may determine whether the winning candidates were duly elected or whether the election is void and has to be rerun. The court cannot declare that a losing candidate was duly elected and so install him in the position he or she covets [s 145 RPA].

In Parkinson, the petitioner had come sixth in the local elections yet, owing to procedural error on the part of the winning candidates, was able to persuade the High Court to order that the election be rerun.

The first three respondents were successfully elected, but the petitioner argued that they were not duly elected. It was agreed that their nomination as candidates was flawed as their proposer and seconder were not registered to vote in the ward in which they were seeking election, contrary to Rule 6(1) and (7)(a) of the Local Election (Parishes and Communities) England and Wales Rules 2006 (“the 2006 Rules”). The issue was the legal effect of that admitted failure.

The statutory scheme contains protections to ensure minor procedural errors do not render nugatory the clear election results. The respondents relied on two of them: s 48 RPA and Rule 8(7) of the 2006 Rules. S 48(1) RPA provides:

“No local election shall be declared invalid by reason of any act or omission of the returning officer or any other person … [if] (a) the election was so conducted as to be substantially in accordance with the law as to elections; and (b) the act or omission did not affect its result”.

The court held that neither could save the nomination papers:

  1. Rule 8(7) did not apply because it required the flaw to be clear on the face of the nomination form, yet the returning officer could not be expected to know where everybody who supported the candidate was registered to vote, particularly in an election where the returning officer was dealing with 97 local elections as well as the general elections and was entitled to take the view that candidates had filled in their papers correctly.
  2. S 48(1) was inapplicable because (i) the reference to “any other person” did not extend to candidates; (ii) the court was not convinced that the defect was not “substantial”; (iii) a mistake by the returning officer in overlooking the defective forms, allowing the respondents to stand, clearly affected the outcome of the election when the respondent had won the election.

The striking result was that, whilst acknowledging that “the electorate has spoken and that they have chosen these three candidates” and that the rerun may well result in the same outcome, the Court held that the election was void and had to be rerun.

Returning officers will note that, even in the context of a defect so substantial as to void an election, the court reiterated that there was no duty of enquiry on the returning officer.

Elected candidates will note that lack of knowledge that their nominations do not comply with the Rules will not provide a complete defence, though their knowledge of non-compliance will almost certainly invalidate their election.

Conclusion

It is an age-old principle of public law that, for constitutional reasons, the courts exert judicial restraint in matters lying in the macro-political field. Electoral law contains routes by which this separation of powers is usurped. The result is a tension visible in domestic and Strasbourg case law between, on the one hand, the procedural criteria imposed on candidates seeking to exercise their right to stand in elections and, on the other, the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people. The courts must ensure that the former reflects the latter. This tension runs throughout the cases considered above, and will determine the outcome of the cases that arise from Thursday’s elections.


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