Miller v Bull (Returning Officer of Herefordshire Council) & Ors

The Petitioner applies for an extension of time for him to comply with the provisions of rule 6 of the Election Petition Rules 1960 (1960 SI 1960/543) (“the 1960 Rules”) as amended. That rule required him to serve notice on the Respondents of the amount and nature of the security which he had given in respect of the Petition which he had presented on 16 July 2009. The rule also required him to serve notice of the presentation of the petition, and a copy of the petition. He did that in time. He gave, in time, the security required, in the form of a money payment. By an error he failed to serve on the Respondents a further notice required by rule 6, namely notice of the amount and nature of the security. He sought to correct this error in respect of the First and Second Respondents by a notice dated 24 July, which he served about one week out of time. But by a second error, he omitted to serve that notice on the Director of Public Prosecutions (“the DPP”). He finally sought to correct that error by notice dated 20 August, which he served about four weeks out of time.

He therefore applies for an extension of time which would be of about four weeks.

If an extension of time, or relief from the sanction, is not granted, then, as is agreed between the parties, the legislation requires that the Petition be struck out. It is agreed that this is a case where there has been a compete failure to give the required notice in time. It is not suggested that this could be a case of a notice that is defective in some minor respect which the court might have some power to remedy. Because there is this agreement between the parties it is not necessary for me to set out the facts in any detail.

It is not uncommon for petitioners acting in person to make mistakes in attempting to comply with the rules, notwithstanding the fact that to a lawyer the rules appear clear enough. In this case the Petitioner simply made mistakes while doing his best.

The First Respondent (“the Returning Officer”) appears by Ms Dehon. She submits that the court has no jurisdiction, or power, to grant the extension, because that is what the Court of Appeal decided in Ahmed v Kennedy [2002] EWCA Civ 1793; [2003] 1 WLR 1820. But if the court does have power to grant an extension, the Returning Officer would not oppose the grant.

The Second Respondent (“Mr Ferrari”) is the successful candidate. The events that have given rise to the Petition and to this application are no way attributable to him. He finds himself involved in legal proceedings for which he has no personal responsibility. Nor could he avoid the litigation by reaching an agreement with the Petitioner (even if he were minded to do so). Parties to private law actions are free to compromise them, but that is not possible in proceedings relating to elections, where the outcome affects the public. He has courteously written to the court, but has not appeared, and did not need to appear. His stance is that he will accept whatever outcome or judgment the court thinks fit.

The DPP has also caused a letter to be written to the court stating that, while he cannot consent, neither does he have any objection to the grant of an extension of time, if the court has power to make such a grant.

It follows that none of the parties has submitted that the circumstances of this case are such that, if the court does have power to grant relief, then it should not do so. Nevertheless, I have considered the evidence, and the letter from Mr Ferrari to the court, in the light of CPR r.3.9. It is unnecessary to recite each sub-paragraph of that rule separately. There is no circumstance in this case which would weigh against granting relief, if the court has power to do that.

If the law today is as it was held to be in Ahmed, then the application before me is bound to fail. But in Ahmed at para 43 Simon Brown LJ said:

“… I would note that the question whether there should be "some limited judicial discretion to extend time" in cases like this (as suggested by the Divisional Court in Absalom v Gillett [1995] 1 WLR 128) can only be for Parliament”.

Since the decision in Ahmed, Parliament has enacted amendments to the 1960 Rules. The issue before me depends upon arguments addressed to me upon the rules as amended in 2003.

The essential facts as alleged in the petition are as follows. On 25 June 2009 an election was held of a Parish Councillor for the Leominster Town Council South Ward. On 15 June 2009 the Returning Officer declared that Mr Ferrari had been elected without contest. The Petitioner had wished to contest the election. He claims in his Petition that he was a candidate. He consulted officials at Leominster Town Council and received information about the completion of nomination papers. He submitted his papers on 28 May. On 29 May he was told by officials that he had been given the wrong guidance. On 3 June he in fact received from the Returning Officer a notice that the Returning Officer had decided that the paper nominating the Petitioner as a candidate was valid. But on 15 June he was informed that this paper was invalid. He wishes to challenge the decision that his nomination was invalid, and by his Petition dated 14 July 2009 he asks the court to determine that Mr Ferrari was not duly elected.

Nothing in this judgment is to be taken as expressing any view of mine as to the likely outcome of any trial of the petition. But the allegations are ones which it might be in the public interest to have investigated, whatever may be the outcome of any trial.

The period of 21 days for presentation of the Petition expired on 16 July, and the Petitioner duly presented his Petition within that time, on Wednesday 15 July. And it is accepted that on the same day he gave the security required in accordance with s.136(1) and (2) and Rule 5. As has generally been the case for some years now, security was given by deposit of money into court. It was ordered in the sum of £1,500, the maximum for a Parish Council Election. I am not aware of any election petition in respect of which the court has ordered security in a sum less than the maximum. I have therefore not cited the provisions of the legislation relating to security by recognisance.

Section 137 of the 1983 Act provides that, where the petitioner gives security for costs as required by deposit of money, then the petition shall be at issue from the time when the security is so given. In this case the Petition has therefore been at issue from 15 July 2009.

The Petitioner acted in person, without the benefit of legal advice until after the events that have given rise to this application. He has no legal training. Following a meeting and telephone conversations with officials of the Court, the Petitioner gave the series of notices in purported compliance with s.136(3) described above. Much space is devoted by the petitioner in his evidence to his dealings with court officials. There is no evidence from the court officials concerned, nor was there any need for it. Most of the petitioner’s evidence does not advance his case. The fact that petitioners are so often acting in person means that court officials are commonly asked for assistance. And they do provide assistance. They are encouraged to, for example in Ahmed at para 41. But court officials are not legal advisers. The responsibility for compliance with the rules lies upon the petitioner and the petitioner alone. Having read the Petitioner’s account of his communications with the court, it seems clear to me that the officials were going out of their way to try to help the Petitioner and are not in any way to be held responsible for the events that have occurred.

On 16 July 2009 the Court official sent to the Petitioner by email a form of notice, but there was an error in the address (it contained a full stop which should not have been there) and it did not reach him until it was resent on 23 July 2009.

On Friday 17 July the Petitioner served on each of the Respondents notice of the presentation of the petition, and a copy of the petition. But there was no reference to, and he gave no notice of, the amount and nature of the security that had been given, as required by s.136(3)(a). He therefore failed at that stage to comply with the remaining requirements of s.136(3).

On Friday 24 July he served on each of the First and Second Respondents (but not on the Director of Public Prosecutions) notice of the amount and nature of the security that he had given. This was as required by s.136(3)(a), save that he was out of time by about a week.

On 20 August 2009, the Petitioner gave the required notice to the Director of Public Prosecutions. But, as already noted, by that date, the five days prescribed by rule 6 for the service of such notices had long since expired.

The procedure for questioning a local election is set out in Part III of the Representation of the People Act 1983 (“the 1983 Act”). By section 127 of the 1983 Act, an election under the Local Government Act may be questioned on the ground that the person whose election is questioned was not duly elected, but this may not be done except by an election petition.

Section 128 provides for a petition to be presented only by individuals. The role of the DPP is in relation to prosecutions. And the Returning Officer can only be a respondent. Section 128 provides:

“(1)

a petition questioning an election under the local government Act may be presented either by four or more persons who voted as electors at the election or had a right so to vote, or by a person alleging himself to have been a candidate at the election”.

Section 129(1) provides that, as a general rule, a petition must be presented within 21 days after the day on which the election was held. Different time limits are laid down in respect of circumstances that are not material here.

Section 136 deals with security for costs. It provides that:

“(1)

At the time of presenting an election petition or within three days afterwards the petitioner shall give security for all costs which may become payable by him to any witness summoned on his behalf or to any respondent.

(2)

The security shall be – …

(b)

in the case of a petition questioning an election under the local government Act, such amount not exceeding £2,500 as the High Court, or a judge of the High Court, directs on an application made by the petitioner.

(3)

Within the prescribed time after giving the security the petitioner shall serve on the respondent in the prescribed manner –

(a)

a notice of the presentation and of the amount and nature of the security; and

(b)

a copy of the petition.”

Section 182 provides for the making of rules of procedure. The applicable rules are the 1960 Rules, which have effect as if made under the 1983 Act. By section 185, unless the context otherwise requires, “prescribed” means prescribed by those rules.

The relevant rules are as follows (references to recognisances in rule 6 and objections by respondents provided for by rule 7 are not relevant to these proceedings):

“5(1) Within three days after the presentation of the petition the petitioner shall apply without notice being served on any respondent within the meaning of Rule 6 to a master to fix the amount of security for costs which he is to give pursuant to section 136 of the Act ….

6(1) Within five days after giving the security the petitioner shall serve on the respondent within the meaning of … section 128(2) of the Act and on the Director of Public Prosecutions a notice of the presentation of the petition and of the nature and amount of the security which he has given, together with a copy of the petition …

19(1) Any period of time prescribed by Rules 5, 6 … shall be computed in accordance with section 119 of the Act and shall not be varied by order or otherwise, but save as aforesaid rules 2.8 to 2.11 and 3.1(2)(a) of the Civil Procedure Rules 1998 shall apply to any period of time prescribed by these Rules as if it were prescribed by the Civil Procedure Rules.” (italics added)

Rule 19 has been amended from time to time. When Ahmed was decided, rules 5 and 6 were in the form in which they are now, but rule 19 was different. The word “enlarged” appeared instead of the word “varied”, and it did not include the words “and 3.1(2)(a)”. These amendments were made byt SI 2003/1278, r.2., which came into force on 1^st May 2003 (“the 2003 amendments”). The argument in this case centres on rule 19. Mr Lock submits that the 2003 amendments have the result that the issue decided by the Court of Appeal in Ahmed must now be decided differently.

To understand the argument it is necessary to note the following. Time limits are set not only in rules 5, 6 and 7, but also in other rules. Ms Dehon drew attention to rules 9, 10, 12 and 13. Rule 9 provides:

“(1)

Within twenty-eight days after the first day on which a petition is at issue the petitioner shall apply by application notice to a rota judge for a time and place to be fixed for the trial of the petition and, if the petitioner fails to do so, any respondent may, within a further period of twenty-eight days, apply in the same manner as the petitioner could have done.

(2)

If no application to fix a time and place for the trial of a petition is made in accordance with the last foregoing paragraph, the prescribed officer shall refer the matter to a rota judge, who shall thereupon fix such a time and place.”

The effect of rule 9 is that, if the petitioner does not apply within 28 days, the rule provides for a 56 day time limit for any respondent to apply. And if no respondent applies, no time limit is fixed for the prescribed officer to apply.

No time limit is set by the rules for the trial of a petition.

Section 119(1)(a) provides for cases where the last day on which anything is required to be done pursuant to Part II of the 1983 Act is a specified non-working day, including Saturday, Sunday and bank holidays. It provides that the requirement shall be deemed to relate to the first day thereafter which is not one of those specified days. Section 119(1)(b) also provides that in computing any period of not more than seven days, for the purposes of Part II of the 1983 Act, then any of the specified days shall be disregarded. The period of five days within which the Petitioner was required to serve the notice he omitted to serve was calculated in accordance with s.119(1)(b).

CPR rr. 2.8 to 2.11 were referred to in rule 19 of the 1960 Rules before the 2003 amendment. The reference to CPR 3.1(2)(a) was inserted by the 2003 amendment. CPR rr 2.8 to 2.10 also provide for computation of days, and are not material to this case. CPR rr.2.11 and 3.1(2)(a) provide:

“2.11

Unless these Rules or a practice direction provide otherwise or the court orders otherwise, the time specified by a rule or by the court for a person to do any act may be varied by the written agreement of the parties....

3.1

… (2) Except where these Rules provide otherwise, the court may –

(a)

extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);...”

The effect of rule 19(1), before the amendment in 2003, was that the only provision for variation of a time limit was CPR r2.11. That provides for a written agreement between the parties. There was no provision in the 1960 Rules for any of the periods prescribed by the rules to be enlarged, or varied, by order of the court.

In Ahmed, at paras 23 and 32, Simon Brown LJ set out the decision of the court as follows:

“23 … the legislation dictates the following hierarchy of provisions: first, Part III of the Act and the Rules made under section 182(1); next the CPR; finally any residual "practice, principle or rule" of the House of Commons (likely to concern matters such as agency and scrutiny)…

32 … Timeous service is an imperative in these cases. Rule 19 is very strong. CPR r 2.11, for example, ordinarily allows for parties to agree variations of specified time limits. Rule 19 disapplies it in rule 6 cases.”

As Hooper J noted in Ahmed [2002] EWHC 2060 (QB); [2004] 4 All ER 764 para 12, in spite of the words of s.136(3) (“in the prescribed manner”), neither the Act nor the rules give any guidance as to what a notice of the amount and nature of the security should contain. That is one reason why the Petitioner sought assistance from the Court officials.

HM Courts Service has issued a leaflet “LOC002 I want to challenge the outcome of an election (04.08) - Crown copyright 2008”. It is on the web at http://www.hmcourts-service.gov.uk/courtfinder/forms/loc002_e.pdf. The leaflet includes the following:

“What documents do I serve?

You must serve on each of the respondents a copy of the following documents:

• notice of presentation;

• the amount and type of security;

• election petition; and

• any affidavit accompanying recognisance.

You must also serve a copy of the notice of presentation and attachments on the Director of Public Prosecutions at 50 Ludgate Hill, London, EC4M 7EX.

You must serve the above documents within five working days of giving security for costs.

If you fail to do so, you cannot take any further action on the petition.

A suggested form of notice of presentation can be found in Atkin’s Court Forms, volume 18 (1) ….

How can I get further advice?

The staff in the Election Petitions Office can advise you on the procedure for issuing an election petition but they cannot give you legal advice or any indication of whether you are likely to be successful. The Returning Officer is also unable to give you legal advice.”

The Election Petitions Office is located in London. There are no local offices. This fact by itself can add to the difficulties and expenses of those wanting to challenge elections, in particular local elections held in places some distance from London.

Mr Lock’s primary submission was that, as a matter of simple construction, CPR r.3.1(2)(a) now applies, so as to permit an enlargement of the time for compliance with rule 6. He submits that this is the effect of the 2003 amendments, when interpreted according to traditional principles. But, he submits, that construction is aided, if need be, by reference to the Explanatory Note to the amending Statutory Instrument. The Note states that that was the intention of the legislature. It reads:

“These Rules make it clear that periods of time prescribed by the … Rules … may be varied by the court or by the parties unless they are governed by section 119 of the … Act”. ”

I indicated that I found difficulty with that submission on a number of grounds. One ground is the reasoning of the Court of Appeal in Ahmed. In my judgment, if rule 19 disapplies CPR r.2.11 (as the Court of Appeal found that it did), then, once CPR r.3.1(2)(a) was introduced in 2003, rule 19 must equally disapply CPR r.3.1(2)(a). It seems to me that the reasoning of the Court of Appeal is conclusive on this point, in so far as that court was addressing the arguments based on traditional approach to statutory interpretation.

Another ground for rejecting Mr Lock’s primary submission is the fact that in this case the period of five days under rule 6 had had to be computed in accordance with S119(1)(b). The five day period started midweek, on Wednesday 15 July. So the following Saturday and Sunday had to be excluded under s.119.

HRA s.3 provides:

“(1)

So far as it is possible to do so … subordinate legislation to be read and given effect in a way that is compatible with Convention rights.

(2)

This section (a) applies to … subordinate legislation whenever enacted; …”

Mr Lock’s second submission is that rule 19 is, or would be, incompatible with Art 6 the ECHR (the right to a fair trial) if and in so far as it provides that the court has no power to extend the time under rule 6. He submits that in order to be compatible with ECHR, the periods prescribed under the 1960 Rules must pursue a legitimate aim, and that there must be a reasonable relationship of proportionality between the means employed by the legislature and the aim sought to be achieved. Mr Lock submitted that, to be compatible with Art 6, rule 19 should be read down so as to enable the court to grant an enlargement of time in an appropriate case.

Ms Dehon did not dispute that Art 6 applied.

It seemed to me that the major interest at stake in an election petition is not the private right of a petitioner, but the rights of the public. There is a public interest that there should be free elections held "under conditions which will ensure the free expression of the opinion of the people": see art 3 of the First Protocol (P1-3) of ECHR and Sch 1 of the Human Rights Act 1998 (“HRA”). This principle has long been recognised in English law. The Statute of Westminster (1275) 3 Edw 1 ch 5 (“… elections ought to be free …”), and the Bill of Rights Act 1688 art 8 (“That Election of Members of Parliament ought to be free") are both in force to this day. For there to be free elections there must be a procedure for determining what opinion the people have expressed in those cases where an election is questioned, and for elections to be declared void in appropriate cases. I suggested to Mr Lock that if there is any argument that could be advanced against the conclusion of the Court of Appeal in Ahmed, then an argument based on that public interest might have a better prospect of success than an argument based on the private rights of a petitioner. He adopted that suggestion.

In the Divisional Court in Saghir v Najib [2005] EWHC 417 (QB) Richards LJ gave a judgment which applied the decision of the Court of Appeal in Ahmed v Kennedy to a case under rule 19, when it was in the form of the amendment in 2003. I agreed with that judgment. But the failure in that case was not the same as in the present case. That case concerned applications to strike out, not only for failure to comply with relevant procedural requirements (although that was relied on, see para 50), but also for lack of particularity or of any prospect of success (see paras 4 and 57).

In neither Ahmed nor Saghir did the petitioner advance an argument under Art 6 (or any other provision) of ECHR. Mr Lock submits that I am not bound to follow Ahmed both for that reason and because of the 2003 amendment.

As noted above, the 1983 Act s.128, does not provide for a petition to be presented by a public authority or official. There is no means by which the public interest in ensuring that there is a proper opportunity to question elections may be vindicated, other than through giving effect to the right of access to the courts afforded to the individuals identified in s.128.

The relevant part of Art 6 (Right to a fair trial) reads:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

P1-3 reads:

“Right to free elections

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

Mr Lock submits that it would be a breach of the Petitioner’s rights if the case he sought to have litigated was struck out for a very minor procedural transgression. He submitted that there is a relationship between Art 6 and procedural bars which may deny a party the right to have his case heard at a trial. In Woodhouse v Consignia Plc [2002] EWCA Civ 275 where Brooke LJ said:

“Provided that judges make their decisions in these cases within the general framework provided by CPR 3.9 and 1.1, they are unlikely to fall foul of the ECHR in this regard. In Ashingdane v United Kingdom (1985) 7 EHRR 528 at [57], the European Court of Human Rights said:

“Certainly, the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals’.”

More recently the court emphasised the need for proportionality when it said in McElduff v United Kingdom (1998) 27 EHRR at [72]:

“… a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.””

He also cited Mathieu-Mohinand Clerfaytv. Belgium (Application no. 9267/81), 2 March 1987. In that case the Strasburg Court decided that P1-3 gives rise to individual rights, saying:

“47.

According to the Preamble to the Convention, fundamental human rights and freedoms are best maintained by "an effective political democracy". Since it enshrines a characteristic principle of democracy, Article 3 of Protocol No. 1 (P1-3) is accordingly of prime importance in the Convention system.

48.

Where nearly all the other substantive clauses in the Convention and in Protocols Nos. 1, 4, 6 and 7 (P1, P4, P6, P7) use the words "Everyone has the right" or "No one shall", Article 3 (P1-3) uses the phrase "The High Contracting Parties undertake". It has sometimes been inferred from this that the Article (P1-3) does not give rise to individual rights and freedoms "directly secured to anyone" within the jurisdiction of these Parties (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 91, § 239), but solely to obligations between States…

50.

… those appearing before the Court were agreed on this point - the inter-State colouring of the wording of Article 3 (P1-3) does not reflect any difference of substance from the other substantive clauses in the Convention and Protocols. The reason for it would seem to lie rather in the desire to give greater solemnity to the commitment undertaken and in the fact that the primary obligation in the field concerned is not one of abstention or non-interference, as with the majority of the civil and political rights, but one of adoption by the State of positive measures to "hold" democratic elections.

P1-3 is engaged in proceedings for the questioning of elections. The Strasbourg Court has not addressed this point directly, but it has said this in the same case:

51.

As to the nature of the rights thus enshrined in Article 3 (P1-3), the view taken by the Commission has evolved. From the idea of an "institutional" right to the holding of free elections … the Commission has moved to the concept of "universal suffrage" … and then, as a consequence, to the concept of subjective rights of participation - the "right to vote" and the "right to stand for election to the legislature" (see in particular the decision of 30 May 1975 on the admissibility of applications nos. 6745-6746/76, W, X, Y and Z v. Belgium, op. cit., vol. 18, p. 244). The Court approves this latter concept.

Any rights under Art 6 or P1-3 are not absolute, and he relies in particular upon what the Strasbourg Court said on the application of the principle of proportionality in that same case:

52.

The rights in question are not absolute. Since Article 3 (P1-3) recognises them without setting them forth in express terms, let alone defining them, there is room for implied limitations …. In their internal legal orders the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3 (P1-3) (Collected Edition of the "Travaux Préparatoires", vol. III, p. 264, and vol. IV, p. 24). They have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 (P1) have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see, amongst other authorities and mutatis mutandis, the Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 71, § 194). In particular, such conditions must not thwart "the free expression of the opinion of the people in the choice of the legislature".

In the same case the Strasbourg Court also addressed the application of P1-3 to elections for bodies other than national Parliaments. It said:

53.

Article 3 (P1-3) applies only to the election of the "legislature", or at least of one of its chambers if it has two or more ("Travaux Préparatoires", vol. VIII, pp. 46, 50 and 52). The word "legislature" does not necessarily mean only the national parliament, however; it has to be interpreted in the light of the constitutional structure of the State in question.”

Ms Dehon referred to the passage in Clayton & Tomlinson para 20.28 commenting upon Knight v Nicholls [2004] EWCA Civ 68; [2004] 1 WLR1653. I observe that at para 21, Tuckey LJ noted that local elections do not involve the choice of the legislature, but he said that as the provisions for parliamentary elections were the same in the local election case he was considering, those provisions should be construed in the same way. Sedley LJ noted at para 38 that the doctrine of margin of appreciation belongs to Strasbourg, and not to English, jurisprudence.

Mr Lock accepts that the aim of providing for the certainty in elections referred to in Ahmed is a legitimate aim. In Ahmed Simon Brown LJ expressed as follows the public interest, or “legitimate aim”, sought to be achieved by the legislature in rules 6 and 19:

“40 … Parliament's insistence upon the strict compliance by both parties with the series of requirements imposed by section 136 of the 1983 Act to ensure that any petition is made ready for listing and disposal as speedily as possible. Flexibility and discretion are all very well but there is merit too in certainty, not least in the field of electoral challenge. It is undesirable to have someone serving in a public office with doubts surrounding the legitimacy of his election.”

Mr Lock’s case is that “there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved”. On the Respondent’s construction a petition falls to be struck out for non-compliance with rule 6, however minor the error, and regardless of both of the cause of the error, and of the issues at stake in the petition. It makes no difference that the parties and the public may not have been prejudiced, or the proceedings delayed by only an insignificant period. Moreover, the legitimate aim identified in the cases is not achieved by rule 19 as amended in 2003. In any event, on the facts of the present case the interest in securing a speedy trial is not engaged on the facts, the times in question being as short as they are.

Mr Lock makes no submissions about the need for strict compliance with the time limits for presenting a petition, and for serving notice that a petition has been presented, and a copy of the petition, and for giving security. Nor does anything I say in this judgment relate to those time limits.

Mr Lock submits that there must be a sufficient justification in this case for there being no power to extend time (when those other time limits have been respected) for serving notice of the amount and nature of the security that has been given in time. In this case that was deposit of £1,500. The maximum amount that can be ordered, even in a parliamentary election, is £5,000 (s136(2)(a)).

It is the time from which the security is given that the statute specifies as the time from which the petition shall be at issue (s.137). That is why this petition has been at issue since 15 July. And it is from that time that rule 9 provides there shall be a 28 day time limit for the petitioner to apply to the rota judge for a time and place to be fixed for the trial of the petition. There is no dispute that, if this petition is not struck out, rule 19 empowers the court to extend the time limit under rule 9. It is disproportionate for the petition to be struck out for failure only to serve timeous notice of the amount and nature of the security.

The submission that there is a lack of proportionality in the prohibition on extensions of time for compliance with rule 6 has attracted distinguished supporters, although not in the context of an argument under the Human Rights Act. Simon Brown LJ in Ahmed cited the views of Divisional Courts expressed by Laws and Hooper JJ (as they then were). At para 10 he recorded that in Ahmed Hooper and Hunt JJ shared the doubts earlier expressed by Laws and Forbes JJ in Absalom v Gillett [1995] 1 WLR 128 at p137-8 as to whether the public interest in the speedy determination of election disputes really required so draconian regime.

The submission is also consistent with the views expressed in the court's judgment in R v Secretary of State for the Home Department, Ex p Jeyeanthan [2000] 1 WLR 354. This was considered by the Court in Ahmed see para 29. At page 359B-C Lord Woolf MR said:

“Because of what can be the very undesirable consequences of a procedural requirement which is made so fundamental that any departure from the requirement makes everything that happens thereafter irreversibly a nullity it is to be hoped that provisions intended to have this effect will be few and far between. In the majority of cases, whether the requirement is categorised as directory or mandatory, the tribunal before whom the defect is properly raised has the task of determining what are to be the consequences of failing to comply with the requirement in the context of all the facts and circumstances of the case in which the issue arises. In such a situation that tribunal's task will be to seek to do what is just in all the circumstances: see Brayhead (Ascot) Ltd v Berkshire County Council [1964] 2 QB 303, applied by the House of Lords in London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182”.

Mr Lock submitted that the cases show that the trial of election petitions can be delayed for months. I have noted above that the rules provide for other time limits which it is common ground can be extended. Recent reported cases show that extensions of time can be given for a period of the same order as the enlargement sought in this case. In Hussein v Khan [2006] EWHC 262 (QB); [2006] All ER (D) 348 Feb, 21 days had been given by a Divisional Court to the petitioner for serving particulars of allegations, being particulars without which the petition would be struck out (para 5 and 14). The problems associated with all litigation mean that in some cases the uncertainty resulting from the presentation of a petition can persist for a considerable time as a result of extensions of time or adjournments.

In Pilling v Reynolds [2008] EWHC 316 (QB); [2008] All ER (D) 54 (Mar) the petitions had been presented on 23 May 2007. An application was made for a scrutiny. There was a hearing on 12 September following an adjournment from 30 July (see para 5 of the judgment), that is an adjournment of some six weeks.

Ms Dehon had so little warning of the argument under HRA that she did not address them in her Skeleton Argument. Her submissions before me at the hearing were entirely oral. However, I gave both parties the opportunity to put in further written submissions, which they did.

Ms Dehon emphasises the importance of the public interest referred to in Ahmed, submitting that there is a public interest in ensuring that there is no unnecessary interference with the conduct of government.

Ms Dehon submitted that a brightline rule, such as was found in Ahmed to be the effect of rule 19, is not of itself incompatible with Art 6. She cited R (Wilson) v Wychavon DC [2007] QB para 61. A brightline rule is not “automatically open to challenge on the basis that a less restrictive solution would have been possible”. In X v Sweden (1983) 31 DR 223 a brightline time bar was upheld even where it precluded a father raising an issue of the utmost importance, namely the paternity of a child. Provisions imposing conditions on candidacy, such as that which is raised in the petition itself have been upheld: eg Mylnychenko v Ukraine (2004) 42 EHRR 39

Neither party sought to distinguish Ahmed on the facts, and in my judgment that was the correct position for them to adopt.

The conclusion of Simon Brown LJ as to the aim of the legislation (see para 55 above) was reached following a review of the authorities.

In Williams v Tenby (1879) 5 CPD 135 the aim was expressed by Grove J as follows at p 137:

“The meaning of the enactment is that the petition shall not be kept long hanging over the heads of persons elected in municipal corporations. The petition must be presented in twenty-one days, and during that time the petitioners should read the Act and ascertain what they have to do. We have found great inconvenience in ordinary cases where the Court have power to extend the time, for we are much occupied with applications for extension of time, and in many cases it is most important that the time of proceeding should be limited, and that persons should know when they are safe.”

That expression of the aim of the legislation focuses on the interests of the candidates, in particular the candidate who has been declared elected, rather than on the public interest.

In Devan Nair v. Yong Kuan Teik [1967] 2 AC 31, 43, the Privy Council considered a provision of a Malaysian Election Offences Ordinance. Section 38 provided that every election petition shall be presented within 21 days of the publication of the result of the election in the Gazette. A rule 15 provided that:.

“Notice of the presentation of a petition, accompanied by a copy thereof, shall, within ten days of the presentation of the petition, be served by the petitioner on the respondent”.

At p 44E-45E Lord Upjohn said:

“So the whole question is whether the provisions of rule 15 are "mandatory" in the sense in which that word is used in the law, i.e., that a failure to comply strictly with the times laid down renders the proceedings a nullity; or "directory," i.e., that literal compliance with the time schedule may be waived or excused or the time may be enlarged by a judge….

This question is a difficult one, as is shown by the conflict of opinion in the courts below.

The circumstances which weigh heavily with their Lordships in favour of a mandatory construction are:

(1)

The need in an election petition for a speedy determination of the controversy, a matter already emphasised by their Lordships. The interest of the public in election petitions was rightly stressed in the Federal Court, but it is very much in the interest of the public that the matter should be speedily determined.

(2)

In contrast, for example, to the Rules of the Supreme Court in this country, the rules vest no general power in the election judge to extend the time on the ground of irregularity. Their Lordships think this omission was a matter of deliberate design. In cases where it was intended that the judge should have power to amend proceedings or postpone the inquiry it was expressly conferred upon him: see, for example, rules 7, 8 and 19….

The case of Williams v. Tenby Corpn., which has stood the test of nearly 90 years and seems to their Lordships plainly rightly decided, strongly supports the view that the provisions of rule 15 were mandatory.

On the whole matter their Lordships have reached the conclusion that the provisions of rule 15 are mandatory, and the petitioner's failure to observe the time for service thereby prescribed rendered the proceedings a nullity.”

Two statements by Lord Upjohn are of particular note. First, he said “The interest of the public in election petitions was rightly stressed in the Federal Court”. This focus on the public interest is different from the focus on the private interests of the candidates in Williams v Tenby. But it made no difference to the result, since Lord Upjohn went on to say: “it is very much in the interest of the public that the matter should be speedily determined”.

There have been other references to the interests at stake in election petitions in recent judgments. In Hussain v Khan [2006] EWHC 262 (QB) the court was asked to extend time for the service of particulars. It was not disputed that the court had power to do that. Ouseley J at para 15 referred to the “strong public interest in ensuring … that those elected are duly elected”.

In Pilling v Reynolds [2008] EWHC 316 (QB) the court was considering an application for costs against an unsuccessful petitioner. Blake J said at para 39:

“… There is an important public interest in clarifying the legitimacy of the ballot and the vote on which the disputed paper depends. It would be contrary to the public interest to deter such scrutiny because of the disproportionate consequences in costs for any unsuccessful petitioner”.

Although the HRA had been in force for some time by the date in May 2002 when the petitions in Ahmed were presented, no submissions appear to have been made to the Court made under that Act.

The importance of the point at issue in this case has become more apparent in the light of events since the decision in Ahmed. In the centuries up to and including the nineteenth century large scale electoral malpractice was widespread in England, and examples are to be found described not only in the law reports but also by the great novelists, in particular Trollope and Dickens. The reforms to the legislation on ballots and other measures appeared in the twentieth century to be very effective in stopping this. But in beginning of this century this scourge appeared again, largely in association with the amendments to the law on postal voting. See for example the case of the election in the Aston Ward of Birmingham City Council referred to Hussein v Khan at para 2.

In the light of the fact that the Petitioner was not legally represented at the material time, and the fact that it is now commonly the case that petitioners are not represented (at least at the stage when the present the petition), I also note the observation of Grove J Williams v Tenby at p138:

“I think the petitioners in these cases are advised by competent persons, and ought to pursue the provisions of the Act.”

Grove J was speaking of a time when the franchise, and so those who were able to present petitions, was restricted to men who fulfilled a property qualification. It may be for that reason that he was able to say that petitioners were then advised by competent persons. The franchise is now universal. That is relevant in considering what is proportionate in the context of cases such as the present one. It is important that the law should be proportionate for the whole electorate. While there may be more educated voters in the twentieth and twenty first centuries than there were in the nineteenth century, the electorate now includes not only people who have the means to pay solicitors, but many who do not have such means. It includes both those who are well, and not so well educated, and those who are accustomed to reading legal texts, and those who are not. It also includes those whose first language may not be English, and those who suffer from impaired eyesight, as well as disabilities of all kinds, whether from birth or by reason of illness or age.

Subject to the decision of the Court of Appeal in Ahmed I would respectfully share the views expressed by Laws and Hooper JJ. In particular I note the words of Laws J cited by Simon Brown LJ in Ahmed at para 18:

“… this petition is incompetent, and must be struck out. We reach this conclusion with very considerable regret. In the course of argument we made no secret of our view that, if the respondent's application was good, an injustice would be perpetrated. We remain of that view. This petition has at least arguable merits … We greatly doubt whether the public interest in the speedy determination of election disputes - an interest which we readily acknowledge - requires so draconian a regime as regards time for service as that created by rule 19 of the Election Petition Rules 1960. We should have thought there should be scope for some limited judicial discretion to extend time, though no doubt it would be sparingly exercised, and only if very good cause were shown. But that is not the present position. Given the present state of the law, the application to strike out must succeed.”

If free to do so, I would conclude that rule 19 is a disproportionate measure, and incompatible with Art 6 and P1-3, in so far as it has the effect that a petition falls to be struck out for a failure by the petitioner to serve on the respondents a notice stating the amount and nature of the security given in circumstances where all other requirements of s.136 and rules 5 and 6 have been complied with.

I accept the submission that, since the 2003 amendments, rule 19 has not achieved the aim of the legislation, whether the aim is “that the petition shall not be kept long hanging over the heads of persons elected in municipal corporations” (Grove J), or that “a speedy determination of the controversy, … [in] … the interest of the public” (Lord Upjohn). As noted above, the period for application to a judge under rule 9 for a trial date can now be enlarged beyond the 28 or 56 days prescribed by the 1960 Rules. It is difficult to understand a policy which explains why CPR 3.1(2)(a) should apply to rule 9, but not to that part of rule 6 which relates to the giving of notice as to the nature and amount of the security which the petitioner has given. Rather it appears to be an anomaly.

I am comforted in forming the view I have formed by the Explanatory Note to the 2003 amending statutory instrument, which suggests to the reader that there is no such anomaly. Mr Lock drew my attention to the use of Explanatory Notes as an aid to the court in identifying the contextual scene of legislation and the mischief to which it is aimed: Tarlochan Singh Flora v Wakom (Heathrow) Ltd [2006] EWCA Civ 1103; [2007] 1 WLR 482 at [15]-[17] – a use to which they were also put in Ahmed at para 35. I understand from the Explanatory Notes in this case that they were aimed at the mischief identified by Laws and Hooper JJ and referred to in Ahmed.

Mr Lock submits that I am not bound by the decision of the Court of Appeal in Ahmed. He cites Culnane v Morris [2005] EWHC 2438 (QB); [2006] 1 WLR 2880. In that case Eady J had to consider the decision of the Court of Appeal in Plummer v Charman [1962] 1 WLR 1469. The Court of Appeal had decided that s.10 of the Defamation Act 1952 had the effect that qualified privilege was not available as a defence in respect of an election address. Eady J held, at para 27, that it was open to him in 2005, following the coming into force of HRA, not to follow the decision of the Court of Appeal made in 1962, because the HRA required him “to do the best I can to construe legislation in a way that is consistent with the rights guaranteed by the Convention”.

Ms Dehon submits that there is no case which addresses the powers of this court at first instance to grant relief under s.3 of HRA where the interpretation under challenge is that adopted in a decision of the Court of Appeal made after that Act came into force. However, she notes that in Clayton & Tomlinson The Law of Human Rights 2^nd ed,para 4.45 it is stated that “… the courts will not be bound by previous authority as to the interpretation of a particular statutory provision”. The authority for that proposition is said to be Notes on Clauses to the Human Rights Bill (as it then was).

Ms Dehon submits that this, and the decision in Culnane, suggest that this court could in principle come to a different conclusion as to the effect of rule 19 from that of the Court of Appeal in Ahmed.

Mr Lock submits that in rule 19, after the words “shall not be varied by order or otherwise”, there should be read into rule 19 the words “save where required to satisfy compliance with the Convention”. This is within the powers of the court: Ghaidan v Godin-Mendoza [2004] UKHL; [2004] 2 AC 557 para 32; Connolly v Director of Public Prosecutions [2007] EWHC 237 (Admin) and the discussion in Lester & Pannick 3ed ed on Human Rights Law and Practice in particular paras 2.3.1 to 2.3.6.

Ms Dehon submitted that even if I were of the view that the regime under rule 19 was disproportionate, the suggested reading advanced by Mr Lock would contradict the express meaning of rule 19, and so that I could not adopt it: R v Lambert [2002] 2 AC 545 at para 79.

The provision in rule 19 that “Any period of time prescribed by Rules … 6 … shall not be varied by order or otherwise” is contained only in the 1960 Rules. It is not in the primary legislation, the 1983 Act. It follows that the applicable provisions of HRA are:

“4… (4) if the court is satisfied – (a) that the provision is incompatible with a Convention right, and (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of incompatibility”.

In my judgment there is nothing in the primary legislation which prevents removal of the incompatibility in this case, if such it be. It follows that there is no occasion to consider a declaration of incompatibility.

As the editors of Lester & Pannick put it at para 2.3.6, “if subordinate legislation is incompatible with Convention rights, and the incompatibility is not required by the primary legislation, HRA affects the validity, continuing operation or enforcement of the subordinate legislation”. They refer to para 2.04 fn 2 which reads:

“By contrast, the courts can and must disapply subordinate legislation which cannot be read compatibly with Convention rights, save where HRA 1998, s 3(2)(c) applies (as to which see para 2.3.6). See Re G (adoption: unmarried couple) [2008] UKHL 38, [2008] 3 WLR 76, at para 116, per Baroness Hale: 'Where a provision of subordinate legislation is incompatible with the Convention rights, the remedies are different: section 3 applies but section 4 does not. The courts are free simply to disregard subordinate legislation which cannot be interpreted or given effect in a way which is compatible with the Convention rights. Indeed, in my view this cannot be a matter of discretion. Section 6(1) requires the court to act compatibly with the Convention rights if it is free to do so.'”

It follows that in my judgment I am not bound to come to the same conclusion as to the meaning of the current version of rule 19 as the Court of Appeal came to in relation to the pre-2003 version they were considering. On the contrary, having reached the view that I have, I am bound to disregard the apparent prohibition in rule 19 upon the Court enlarging the time for compliance with rule 6 that occurred in the present case, in so far as that would have the effect of making the proceedings a nullity.

In my judgment it is not necessary to read words into rule 19. It can be read down, with the result that it is to be understood as subject to the Court’s power to give relief from sanctions.

For these reasons I grant the extension of time for which the Peititioner applies.