Begum & Ors v Returning Officer for London Borough of Tower Hamlets

Local elections are due to be heard in many parts of the country the day after tomorrow on Thursday 4 May 2006. One such election was due to be held in the St Katherine and Wapping ward of the London Borough of Tower Hamlets (“the ward”). By an order made last Thursday, 27 April, Keith J countermanded the election or the poll and directed that a new election be called by the appellant returning officer (“the returning officer) under section 39(1) of the Representation of the People Act 1983 (“the Act”).

The judge also declared that:

The judge granted permission to appeal and stayed the order until 4.30 pm on Friday last, if an Appellant’s Notice was filed by the returning officer by 3.00 pm on Thursday. Such a notice was filed before that deadline.

The Act (as amended) contains very detailed provisions governing the conduct of both parliamentary and local elections. Section 35(1) provides that local elections will ordinarily take place on the first Thursday in May each year. It is as a result of that provision that all (or almost all) the local elections are taking place on the same day, namely this Thursday.

By section 36(1) and (2) the Act provides that elections of councillors shall be conducted in accordance with rules made by the Secretary of State and that those rules shall apply the parliamentary elections rules in Schedule 1 to the Act subject to such adaptations, alterations and exceptions as seem appropriate to the Secretary of State. The Secretary of State subsequently made the Local Elections (Principal Areas) Rules 1986 which by rule 5 provide that local elections shall be conducted in accordance with the rules set out in schedule 2 to those rules.

The rules in schedule 2, as amended, (“the rules”) provide, so far as relevant, as follows.

Rule 1 provides for the proceedings at an election to be conducted in accordance with a precise timetable, beginning with publication of notice of the election not later than the 25 ^th day before the day of the election. In this case the notice of the election was published on 24 March. By the operation of a similar formula in rule 1, the delivery of nomination papers was to be by noon on 3 April.

Rules 3 and 4 provide for notice of election and nomination of candidates respectively. Rule 4 (a) provides:

Rules 5 and 7 provide, so far as relevant, as follows:

The rules contain many other provisions to which, save for rule 49, it is not necessary to refer for present purposes. Rule 49 is headed Countermand or Abandonment of a Poll on Death of a Candidate, and provides by paragraphs 1 and 2 as follows:

The Act contains a number of further provisions of some importance, to which I should refer. Section 39 provides so far as relevant:

the poll is countermanded or abandoned for any reason, or

no person is or remains, or an insufficient number of persons are or remain, validly nominated to fill the vacancy or vacancies in respect of which the election is held,

It appears to me that, on the true construction of both rule 49 and paragraph 60 of Schedule 1 and section 39(1) of the Act, it is for the returning officer and not for the court to countermand a poll when appropriate. It appears from rule 49 and paragraph 60 that the returning officer will do so in the case of the death of a candidate, and it is something of a puzzle why section 31(1) uses the words “for any reason”. It is not however necessary to solve that puzzle in order to determine the issues in this appeal.

It is important to note that the Act nowhere confers on the High Court jurisdiction to intervene or to make orders in the course of an election. There are, by contrast, many provisions which govern proceedings after the election. They include provisions which focus upon cases where it is said that the returning officer is in breach of duty. Of these, perhaps the most important for present purposes is section 48 which provides as follows:

Section 48 is important because the respondents’ case is that the returning officer was in breach of rule 7(3) in that she failed to examine the respondents’ nomination papers as soon as practicable after they were delivered and/or because she failed to act fairly in accordance with the respondents’ legitimate expectations. I will return to those allegations below.

At present it is important to note that section 48 provides that, at any rate after an election, the only way in which the validity of an election can be challenged is by an election petition before the election court. On the hearing of such a petition it will be for the claimant petitioner to establish the breach of official duty alleged, but if that is established it will be for the respondent to show that both “(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”. Section 48 does not confer any power on the High Court.

I should note in this connection a series of sections of the Act which relate to petitions. Section 127 provides:

was at the time of the election disqualified, or

was not duly elected,

It is not, I think, in dispute that sections 48 and 127 have to be read together. Sections 128 to 131 make detailed provisions for the hearing of petitions. Section 128(4) provides for the petition to be published in a relevant area. Section 130(6) provides for the trial of a petition in general to be held in the local area, and section 139 provides for the trial to be in open court. Express provisions are contained in section 140 for the calling of witnesses. The whole process is thus very different from judicial review.

I should also note section 63 which provides by subsections (1) and (2):

As already indicated, the Act makes no provision for the High Court to make orders for judicial review in the course of an election. Mr Straker does not however submit that the High Court has no jurisdiction to grant relief. He recognises that the High Court has, or may have, jurisdiction under section 31 of the Supreme Court Act 1981, for example to grant a mandatory, prohibiting or quashing order under section 31(1)(a) or a declaration or injunction under section 31(1)(b). As I see it, the judge was invoking the power to grant a mandatory injunction when he ordered the returning officer to countermand the poll.

Mr Straker submits that such an order should, as he put it, hardly ever be made. I agree. That was the approach of Scott Baker J in R (De Beer) v The Returning Officer for the London Borough of Harrow [2002] EWHC 670 (Admin), where he said at paragraphs 37 and 38, in the context of a submission, that the court would have jurisdiction to interfere with a decision by a returning officer that a nomination paper was invalid:

I agree with Scott Baker J that the court should be extremely slow to intervene. It should only do so in a most exceptional case. Parliament has conferred duties (but not discretions) on returning officers and has made express provisions as to how any decision of a returning officer might be challenged, namely by petition before an election court after the election. Save in a wholly exceptional case the court should in my opinion allow the statutory machinery to work as set out in the Act and the rules.

It is not easy to think of circumstances in which it might be appropriate for the court to intervene. Two were suggested in argument. The first was a case where the returning officer declared invalid a nomination paper but plainly misread the election number in circumstances in which it was clear that the number on the paper was correct. That is a very different case from this because there no error would have been made by or on behalf of the nominees. The second, which was suggested by Mr Southey, was where the election process was so flawed that the election court would be bound to declare the election invalid, in accordance with section 48. As to that, it might be possible to conceive of such a case, but to my mind wholly exceptional circumstances would be required.

The respondents are three Respect Party candidates who were nominated for election in the ward. Mr Sean Doherty is described as the Nominating Officer for Respect in Tower Hamlets. The judge treated him as the respondents’ agent. It is common ground that the deadline for the delivery of the nomination papers was noon on 3 April. It is also common ground (at any rate now) that the nomination papers referable to the respondents were invalid because they gave the wrong electoral numbers for one or more subscribers. It appears that the numbers were taken from an earlier register which had become invalid and replaced by the up-to-date register on 1 March.

The judge had before him a statement both from Mr Doherty and from the deputy returning officer, Pat Parker. He also had the respondents’ grounds supported by a statement of truth. In paragraph 3 of her statement the deputy returning officer said this:

It is not in dispute that paragraph 3 of that statement fairly states the position. The respondents’ grounds themselves refer to such a discussion, though in general terms. The Electoral Guidance referred to by the deputy returning officer is, in so far as relevant, in these terms:

It is, I think, of some importance to note that the deputy returning officer emphasised that the new register must be used for the electoral numbers and not the old. In these circumstances it is surprising, to put it no higher, that the electoral numbers used in respect of some supporting electors on the respondents’ forms derived from the old register and not from the new. I will turn below to the question whether on that evidence the deputy returning officer made the kind of clear and unequivocal statement or representation which might support a case of legitimate expectation. Mr Straker invites us to notice that this statement was made to “Mr Doherty and the other agents” on 7 March, which was some seventeen days before the publication of the Notice of Election on 24 March. It follows that there might well have been nominees and agents who were not present. On the other hand, the deputy returning officer makes it clear in her statement that as a matter of practice she offered what she described as an “informal voluntary process to assist the candidates”. The forms were inputted manually into a computer which identified any errors on the form. The nominee or agent was then called to confirm the errors and the original forms were returned for correction.

It should be noted that there were a large number of nominations. The deputy returning officer says that the total was 238 nominations for 17 wards, of which 128 were received between 9.00 am on 31 March and the deadline at noon on 3 April. There is an issue of fact as to when the respondents’ nomination forms were submitted. Mr Doherty says that the week of 26 March was very busy and that he was dealing with the forms of 51 candidates. He says that at 10.00 am on 29 March he took the bulk of the 51 sets of nomination forms to the Town Hall, as previously arranged with the deputy returning officer. He says that among the 51 sets were those for the ward in question. He says that he has witnesses in the form of the candidates for the ward who met him in the foyer with their nominations. It is however right to say that the respondents have not themselves made statements in these proceedings.

The deputy returning officer, by contrast, says that Mr Doherty came on 29 March as arranged but that he delivered 39 forms. She photocopied each of the forms and checked them, marking them where appropriate. 21 of the forms were wrongly completed for a number of different reasons. She telephoned Mr Doherty later on 29 March and explained the problems to him. She says that, although she cannot be certain, she does not believe that the respondents’ forms were delivered on 29 March, because all the forms received were photocopied and marked up, so that if the respondents’ defective forms had been included she would have marked them up and noted the defects then. Mr Doherty agrees that the deputy returning officer rang him on 29 March, he says twice. It is common ground that the respondents’ forms were not mentioned on the telephone on 29 March or indeed at any time before the deadline. It is common ground that Mr Doherty again went to see the deputy returning officer on the next day, 30 March, as arranged. It is also common ground that the deputy returning officer pointed out further errors. She thinks that the respondents’ forms must have been among the forms handed to her on 30 March. The only difference between the parties on the evidence is that Mr Doherty says that the respondents’ forms were delivered on 29 March, whereas the deputy returning officer thinks that it was on the 30 March. On 31 March Mr Doherty visited the deputy returning officer with corrected forms. That evening the deputy returning officer again rang Mr Doherty. She said that all the forms of which she was aware were in order, except one which related to the Limehouse Ward. Finally on Monday, 3 April at 8.45 am Mr Doherty submitted two fresh nomination papers and the corrected Limehouse form. The deputy returning officer told him that all the papers she had received were correct subject to the returning officer’s formal acceptance. The deadline then passed without any reference to the respondents’ papers.

It appears that the reason that the respondents’ papers did not come to light before the deadline was that they were misfiled with documents relating to other candidates. As I said earlier, the normal procedure, which cannot have been carried out in this case, was on receipt to input nomination papers into a dedicated computer programme. After the deadline a computer reconciliation was carried out and checked against the ring binder files in which originals of the nominations were kept. It was only then that the deputy returning officer discovered that the respondents’ nominations had not been previously checked and were invalid. The forms were then declared invalid by the deputy returning officer on behalf of the returning officer and Mr Doherty was informed on the afternoon of 3 April.

It was common ground before the judge that the respondents’ papers were invalid. Moreover it was not suggested before him, and is not suggested now, that the returning officer could have validated the invalid papers after the deadline. One of the striking features of the system is that the Act and the rules do not confer any discretion on the returning officer to correct errors. It follows that, but for the order of the judge, the respondents would not have been able to stand in the local elections on Thursday. If the respondents cannot stand this will have an unfortunate effect upon the Respect Party because only three candidates can be elected in each ward, so that a party is unlikely to field more than three candidates. In these circumstances the only Respect Party candidates in the ward were the three respondents.

The respondents succeeded before the judge on the basis that they had a legitimate expectation that the deputy returning officer would examine papers which were not submitted at the last minute and that notification of any errors would be given in sufficient time for any errors to be corrected before the deadline. The judge’s conclusions are set out in paragraphs 22, 23 and 24 of his judgment as follows:

I note in passing that we were told that there were no independents standing in the ward and that the parties were represented as follows: two Conservatives, two Greens, three Labour and two Liberal Democrats. We were also told that all but the three nomination forms were correct, any errors having been pointed out to the candidates or their agents and subsequently corrected in time.

As to the jurisdiction to make the order, the judge observed that rule 7(6) excluded a challenge to a decision by the returning officer that a nomination paper is valid but did not exclude such a challenge to a decision that a nomination is invalid. He referred to the views expressed by Scott Baker J in the De Beer case (quoted above), including the view that judicial review does lie in principle but that the court should be extremely slow to interfere with a decision of a returning officer. The judge however also correctly observed, first, that the challenge in this case is not to the decision of the returning officer that the respondents nomination papers were invalid, because it is accepted that they were indeed invalid; and secondly, that her decision to that effect was the only decision she could have reached.

The judge identified the challenge as being to the deputy returning officer’s failure to examine the papers and to notify the respondents in sufficient time to enable the errors to be corrected. The judge granted the relief set out in the order to which I referred earlier on the basis that that failure was unlawful because the respondents had a legitimate expectation that she would do so.

Essentially four grounds of appeal are advanced on behalf of the returning officer:

Mr Southey submitted before the judge that, quite apart from legitimate expectation, the returning officer was in breach of duty under the rules. He submitted that the returning officer was in breach of rule 7(3) in failing to decide whether the respondents’ nomination papers were valid or invalid as soon as practicable after the papers were submitted. He submitted that the purpose of that rule was to enable the returning officer, if reasonably practicable, to make his decision in time to inform the nominee in time to enable him to correct any error before the deadline and that, on the facts, if the returning officer had discharged his duty, Mr Doherty would have been informed and corrected the error before the deadline. The judge rejected that submission. He held that there was no requirement that the returning officer should notify the nominee as to his decision as soon as practicable. He made three points: (1) that the word ‘send’ in rule 7(5) implies that the decision will be notified by post; (2) that the requirement was that the notification of the decision would be sent to the nominee’s home address and not to his agent; and (3) that the notification was not required before a specified time. The judge added that any telephone notification, although laudable, was an informal practice not required by the rule. The judge held on the facts that if the papers were delivered on 29 March it was reasonably practicable for them to have been examined on that day, and that if they were delivered on 30 March it was reasonably practicable for them to have been examined on that day instead, in either case, of their being misfiled. After all, the other papers were all checked. Moreover only the numbers were inaccurate and they could have been checked against the register. As I read his judgment, the judge was there holding that the returning officer was in breach of rule 7(3).

The judge, however, said that, although the respondents may well have learned of the error if the deputy returning officer had called Mr Doherty on examination of the papers on either 29 or 30 March, their difficulty was that there was no certainty that notification under rule 7(5), would have occurred in sufficient time for the papers to be correct. He said at the end of paragraph 19 of his judgment:

Mr Southey challenges those conclusions in this appeal. He submits that there was a plain breach of rule 7(3) and that, on the facts, but for that breach Mr Doherty would have been notified and the errors rectified before the deadline, as occurred with the errors in the other papers of which he was informed.

It is convenient to consider first the alleged breach of rule 7(3) and then legitimate expectation. However, before doing so, I should I think say a further word about the scheme of the Act and the rules. It is important to note that it is the duty of the nominee, either himself or through an agent, to present valid nomination papers in time. Thus it was throughout the duty of the nominees to ensure, among other things, that the correct electronic number should be used for each of the required eight supporting electors and that it should be stated on the form. On the facts of this case the respondents failed to discharge that duty. Moreover, whatever can be said about the failings on the part of the returning officer, the deputy returning officer or their staff, the respondents’ responsibility to put the correct information on the forms was at no stage transferred to the returning officer.

Put at its highest, the case against the returning officer is that someone in her office or that of her deputy made a mistake which ought not to have been made by filing the papers in the wrong place. There is no evidence or suggestion that a decision was made by the returning officer or the deputy returning officer or anyone else not to discharge their duties, or not to comply with the rules or the practice which it appears was normally adopted, namely to examine the forms as soon as reasonably practicable and to point out errors to the nominees or their agents.

On the evidence and the findings of the judge it appears to me that the returning officer was in breach of rule 7(3). She failed, through the deputy returning officer or her staff as soon as reasonably practicable after the respondents’ nomination papers were delivered, to examine them and decide whether the respondents had been validly nominated. She was in breach of duty because the documents had been filed in the wrong place. As a result, the deputy returning officer did not discover the errors, whereas if she had, she would have informed Mr Doherty, who would have corrected the errors, as he had in the case of other similar errors which she had identified and brought to his attention.

In these circumstances the returning officer or another person on her staff was in breach of her official duty within the meaning of section 48(1) of the Act set out above. Moreover, that breach was causative of the fact that the respondents were unable to stand in the election because, absent that breach of duty, the errors in the nomination forms would have been corrected before the deadline. In this connection I am not persuaded that it is relevant that there was, as the judge explained, no breach of any of the other rules contained in rule 7. I will return in a moment to consider what, if any, relief should be granted to the respondents at this stage.

In the passages from his judgment which I have quoted the judge held that the statement by the deputy returning officer on 7 March gave rise to a legitimate expectation in the respondents that papers which were not submitted at the last minute would be considered and errors pointed out so as to enable them to be corrected in time. He further held (in the passages quoted above) that in these circumstances the failure to consider the papers as soon as reasonably practicable and to notify errors to the respondents was unfair and therefore unlawful, especially given the fact that the papers of other candidates were considered and corrected as a result of errors notified on behalf of the returning officer.

The relevant principles can I think be sufficiently taken from the judgment of Peter Gibson LJ in paragraphs 67 and 68 of his judgment in Rowland v Environment Agency [2003] EWCA Civ 1885, [2005] Ch 1:

Those judgments show that whether or not there is a relevant legitimate expectation depends on all the circumstances of the particular case. When all the circumstances of the instant case are taken into account, I have reached the conclusion that the deputy returning officer did not create a legitimate expectation in the respondents, the denial of which amounted to an abuse of power. My reasons may be summarised as follows:

If, contrary to the opinion just expressed, this is a case of legitimate expectation, the question remains whether the court should stop the election or leave the respondents to challenge it afterwards. In this regard there does not seem to me to be any significant difference between the respondents’ case that there was a breach of rule 7(3) and their case that they had a legitimate expectation of the kind found by the judge. In either case the question arises whether it is appropriate for the court to grant relief by way of judicial review. The question in each case is essentially the same.

I was somewhat concerned in the course of the argument as to whether the election should be stopped on the basis of an argument along these lines. There was a breach of rule 7(3) or (let it be supposed) an interference with the respondents’ legitimate expectation that the papers would be checked and errors notified to them. In each case, the effect of the breach or unfairness was that the errors did not come to light in time. The election should therefore be declared invalid now because a petition under section 48 of the Act would be bound to succeed because there is no realistic possibility of the returning officer (or anyone else) being able to satisfy paragraph (b), namely that “the act or omission did not affect the result”. That is because the respondents are the only Respect candidates standing in the ward and Respect is an important party in the locality so that the result of an election without any Respect candidates is bound to be materially different from an election with Respect candidates. In these circumstances, it would be a waste of time and money to permit the election to proceed. It would moreover be unfair to all the parties and, indeed, to the electorate. Given that the election court would be bound to hold that the election was invalid, the only sensible and just course would be to exercise the court’s power to grant a mandatory injunction and to direct the returning officer to countermand the poll under section 39(1) of the Act.

This was not the first way in which the case was put by Mr Southey. His first point was that the court should not focus on the question raised by paragraph (b) of section 48(1) and consider the relative positions of the parties but simply hold, without regard to those positions, that an election petition would be bound to succeed. For my part, I would not accept that submission. It appears to me that paragraph (b) raises a question which must be answered on all the evidence, including the relative positions of the parties. I can see no basis upon which it could properly be held that, in answering the question posed by the paragraph, the position of the parties is irrelevant.

Although I was initially attracted by the argument summarised above, I have reached the conclusion that it should not be accepted. As stated earlier, it will be the rare case indeed in which it will be appropriate for the court to interfere by countermanding a poll or interfering with an election before it takes place. In principle, elections should be contested by those who have been properly nominated in accordance with the rules. Moreover local elections should, if at all possible, all take place on the day appointed by section 37(1) of the Act, namely the first Thursday in May. The Act sets out a detailed procedure for challenging the result of an election. It involves a trial in public at which oral evidence can be given and all those interested, including the other candidates, can take part if they wish. The present proceedings have not been served on the other candidates, who may or may not be aware of them.

It is not in my opinion possible to say on the present state of the evidence that the respondents to any election petition will not be able to establish that the results of the election would have been the same but for the breach of duty on the part of the returning officer. As Mr Straker observed in reply (and as is obvious) we do not know what the result of the election on Thursday will be and we do not know whether the respondents will in fact choose to challenge the result, whatever it is. They may or they may not. The evidence does not focus on this question. Indeed, it does not focus on the question raised by section 48(1)(b) at all. Thus there is no evidence as to the relative strengths of the parties or as to the position of Respect either in the ward or in the locality more widely. Respect may receive large number of votes in the locality or its votes might collapse. We simply do not know, both because the election has not yet taken place and because the respondents have chosen not to address these questions in the evidence.

In these circumstances it is impossible for the court to hold that the respondents would be bound to succeed on any election petition which they choose to file. It follows that it would be wrong for the court to interfere with the election, especially since it is reasonable to suppose that canvassing is well under way and the candidates must have spent both time and money in relation to it.

It was for these reasons that I concluded on Friday that the appeal should be allowed and the election should be allowed to proceed, leaving the respondents to take such steps as may be appropriate to challenge the result by way of petition to the election court. Nothing in this judgment is intended to prejudge any of the issues which might arise on the hearing of such a petition, whether arising under any part of section 48 or otherwise.

LORD JUSTICE RIX: I agree.

LORD JUSTICE MAURICE KAY: I also agree.