Williams v Patrick & Ors [2014] EWHC 4120 (QB) (15 December 2014)

Neutral Citation Number: [2014] EWHC 4120 (QB) Case No: M/351/14 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ELECTION COURT Royal Courts of Justice Strand, London, WC2A 2LL 15 December 2014 B e f o r e : COMMISSIONER RICHARD PRICE OBE QC ____________________ Between: IN THE MATTER OF THE REPRESENTATION OF THE PEOPLE ACT 1983 AND IN THE MATTER OF A LOCAL GOVERNMENT ELECTION FOR THE KING'S PARK WARD OF THE LONDON BOROUGH OF HACKNEY HELD ON 22 MAY 2014 VERNON WILLIAMS Petitioner - and - SHARON PATRICK TOM RAHILLY REBECCA RENNISON TIM SHIELDS First Respondents ____________________ Vernon Williams, the Petitioner in person Annabel Lee of counsel, for the First Respondents Timothy Straker QC and Sappho Dias of counsel, for the Second Respondent Hearing date: 19 November 2014 ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Introduction This Election Court was convened to try an Election Petition brought under section 127 of the Representation of the People Act 1983 ("the 1983 Act") to challenge the validity of the local government election for the King's Park Ward of the London Borough of Hackney held on 22 May 2014 ("the election"). The petitioner, Mr Vernon Williams, was an independent candidate at the election. The first respondents, Ms Sharon Patrick, Mr Tom Rahilly and Ms Rebecca Rennison, were the successful candidates at the election. The second respondent, Mr Tim Shields, was the Returning Officer responsible for conducting the election according to law ("the Returning Officer"). On 1 September 2014, I was appointed as Commissioner to try this petition. I gave directions leading to the trial of the petition at a hearing held in the Royal Courts of Justice on 9 October 2014. The trial was fixed to be heard over two days at Stoke Newington Town Hall, commencing on 19 November 2014. The petitioner was dissatisfied with the directions for trial that I had given on 9 October 2014. On 13 November 2014, six days before trial, the petitioner lodged a bundle of documents with the Court of Appeal seeking permission to appeal against the order of 9 October 2014. At the beginning of the trial on 19 November 2014, the petitioner, who was acting in person, applied for an adjournment. He told the court that he had been to the Court of Appeal office on 18 November 2014 to attempt to obtain an order for a stay of the trial, pending hearing of his application for permission to appeal. He said that, at about 6.30 pm on 18 November 2014, he received an e-mail from the Court of Appeal to say that a Deputy Master had decided that the Court had no jurisdiction to consider the petitioner's application for permission to appeal. The basis for the application for an adjournment of the trial was so that the petitioner could have the opportunity to persuade the Court of Appeal that it was wrong to decline jurisdiction. The application was opposed by Mr Timothy Straker, Queen's Counsel, who appeared on behalf of the Returning Officer, with Ms Sappho Dias of counsel, and by Ms Annabel Lee of counsel, who appeared on behalf of the first respondents. I refused the application for the adjournment for the reasons given in my decision on the application. The petitioner informed the court that, having lost his application for an adjournment, he did not propose to take any part in the trial, and, in particular, did not propose to ask any questions of the witnesses who had filed witness statements on behalf of the respondents, in accordance with the directions given on 9 October 2014. The petitioner had not filed any witness statements in support of the petition in accordance with that order, or at all. The petitioner remained in court for the ensuing trial. Counsel for the Returning Officer indicated that all his witnesses were at court, and available to give evidence, but submitted that their witness statements were unchallenged, and that their statements, with exhibits, should stand as the evidence in the case. As part of the directions given on 9 October 2014, I directed that, by 6 November 2014 the petitioner must notify the parties and the court by list the witnesses whose evidence he disputed, and whom he intended to cross-examine at the trial. The evidence of any witnesses who were not identified should stand as agreed. The petitioner did not identify any of the respondents' witnesses in accordance with that direction, and, as stated above, indicated at the start of the trial that did not propose to question any of those witnesses. I, therefore, accepted the Returning Officer's submission that the witness statements, with exhibits should stand as the evidence in the case, and that I did not require them to give oral evidence. In spite of the fact that there was no evidence from the petitioner to support the allegations in his petition, Mr Straker QC outlined in some detail the Returning Officer's answer to those allegations, and referred me to the relevant parts of the evidence, and the relevant exhibits. He submitted that the petition should be dismissed. Ms Lee, on behalf of the first respondents, supported the submissions of Mr Straker, with one qualification to which I will return later in this judgment. The declared result of the election There were twelve candidates at the election for three council seats. On 23 May 2014, the first respondents, who were Labour Party candidates, were declared to be duly elected by the Returning Officer, with each of them polling over 2000 votes. The petitioner received 134 votes, with seven other candidates polling more votes than the petitioner, but less than the first respondents. The allegations in the petition The petitioner alleges that the first respondents were not duly elected by reason of acts or omissions on the part of the Returning Officer, his servants or agents, which constituted breaches of election law. The petitioner alleges that the conduct of the election was, therefore, so flawed that it was not conducted so as to be substantially in accordance with the law as to elections, and/or the result of the election was thereby affected. This language is taken from section 48 of the 1983 Act. The allegations made against the Returning Officer, in brief summary, are as follows: (i) Acting in breach of rule 45(3A) of the Parliamentary Rules, contained in Schedule 1 to the 1983 Act, which provides: "The returning officer shall take reasonable steps to begin counting the votes given on the ballot papers as soon as practicable within the period of four hours starting with the close of poll". The petitioner argues that rule 45(3A), which relates to the conduct of parliamentary elections, applies to local government elections by virtue of the provisions of section 36(2) of the 1983 Act. The petitioner complains that the count at the election was delayed until well into the day after the close of poll, when the Returning Officer had no legal authority to do so. (ii) Storing the ballot boxes, containing the ballot papers, overnight in the Britannia Leisure Centre, which was not a fit place for the purpose of storing ballot boxes and their contents, because it had no inherent security features for such storage. The overnight storage of the ballot papers raises a rebuttable presumption that interference and tampering of the boxes and ballot papers took place, as there was a breach of the statutory requirement to begin the count within four hours after the close of poll. (iii) Failing to provide the petitioner with an up-to-date and complete absent voters list for the King's Park Ward. (iv) Failing to provide the petitioner with maps of the King's Park Ward showing recent boundary changes (v) Giving instructions to absent voters which favoured the Labour Party candidates. (vi) Giving voters at some polling stations pencils to mark the ballot paper. The legal background to the election as outlined on behalf of the Returning Officer The London Borough of Hackney owes its existence as the local authority for the area of Hackney to the London Government Act 1963, which by section 1 established the London boroughs. By virtue of paragraph 6 of schedule 2 to the Local Government Act 1972, London borough councillors are to be elected, on the ordinary day of election, every four years in accordance with the 1972 Act and Part I of the Representation of the People Act 1983. Accordingly, elections to the London Borough of Hackney were required to be held in May 2014. The ordinary day of election was appointed as 22 May 2014 (polling day). The principal reason for this was because the local government elections were to be combined with elections to the European Parliament. Mr Shields, the Returning Officer for the London Borough of Hackney is the Chief Executive of that Borough. He has been the duly appointed Returning Officer for a number of years. In accordance with the statutory cycle, the Returning Officer was aware well in advance that an election was to be held in May 2014. He was also conscious of the fact that the elections to the London Borough of Hackney would be combined with the European elections, and also a mayoral election. An election under the 1983 Act is carefully described in and prescribed by the legislation. In particular a series of steps are required to be undertaken. The rules for elections to London boroughs like the London Borough of Hackney have, by virtue of section 36(2) of the 1983 Act to be based on the rules for parliamentary elections, which are scheduled to the Act. However, the rules made for local government areas are subject to such adaptations, alterations and exceptions as seem appropriate to the Secretary of State, who is given the authority to make the rules. Accordingly, in considering a local government election one must always consult the particular rules rather than the parliamentary election rules. There will, inevitably, be differences between the two sets of rules. Parliament has distinctly provided for two sets of rules. The fact that one takes as its starting point the other does not undermine that proposition. The relevant rules in this matter are the Local Elections (Principal Areas) (England and Wales) Rules 2006 ("the 2006 Principal Areas Rules"). As the poll for councillors was combined with a European Parliamentary election and a mayoral election schedule 3 of the 2006 Principal Areas Rules provided the detailed rules for the conduct of the election. The first rule makes plain that an election is conducted according to a definite timetable with distinct steps following one after another. The same occurs in the Parliamentary Election Rules, set out in Schedule 1 to the 1983 Act ("the Parliamentary Rules"). However, there are differences between the sets of rules. One such difference is that the Parliamentary Rules require (by 45(3A)) the returning officer, i.e. the returning officer at a parliamentary election, to take reasonable steps to begin counting as soon as practicable within four hours of the close of the poll. No such provision exists or has been introduced into the 2006 Principal Areas Rules for local government elections. The course of an election can be followed through the steps required to be taken. It is thus possible to see whether an election was conducted substantially in accordance with the law. Evidence as to the steps taken by the Returning Officer to prepare for the May 2014 elections The evidence of the Returning Officer is contained in his witness statement dated 30 October 2014. He describes the establishment, in September 2013, of a Project Team for the election in May 2014. This Team was enhanced by the appointment of six Deputy Returning Officers, who were all senior local authority officers. The meetings of the Project Team were chaired by one of the Deputy Returning Officers, Gifty Edila, who is the Corporate Director for Legal, HR and Regulatory Services of the Borough of Hackney. The project team produced a project plan and a risk register, both of which are exhibited to the Returning Officer's witness statement, and are lengthy and comprehensive documents. The project plan is dated 1 November 2013, over six months before the date of the elections. It was thereafter reviewed on a number of occasions by the project team, and by the Electoral Commission, which recorded that all its standards were met. It can be observed that the first aim in the project plan was to run the combined elections in accordance with the legislation, Electoral Commission guidance and directions, and the Returning Officer's directions (local & regional for London). The last recorded aim was for results in which all stakeholders are confident. A tool for measuring success, in that regard, was a record of complaints. There were no substantive complaints supporting the matters complained of in the petition. The risk register was reviewed at all election project management meetings. It was also considered by the Performance Standard Team of the Electoral Commission on 21 January 2014. It was approved. The risk register contained residual risk ratings for each area of risk identified. The residual risk score determined how frequently the risk was to be monitored or if further action was needed. The rating was amended following each meeting of the Project Team of which there were at least a dozen before the election. The minutes of the meetings of the Project Team are exhibited to the Returning Officer's witness statement. The first such set of minutes, dated 18 September 2013, reveal a meeting that, amongst other things, confirmed that the necessary orders had been passed so that there would be three elections on 22 May 2014, and that the highest standards from all staff would be required. Attention was also drawn to the fact that a boundary review had taken place. The Project Team meetings took place once a month initially, and then more frequently as the date of the elections approached. They record in great detail the various steps that were being taken to prepare for polling day on 22 May 2014. By way of example, facilities and security were regularly discussed at these meetings. The Returning Officer exhibited evidence as to the training of presiding officers at polling stations, including letters from the presiding officers recording the receipt of training and their management of ballot boxes at the close of poll. Evidence as to the events on polling day and at the count The Returning Officer describes the sequence of events on polling day and records that all polling stations opened on time, and no significant issues were experienced throughout the day. He appointed fourteen polling station inspectors to visit polling stations throughout the day. Their role was to ensure that the due processes for an effective election were followed at the polling stations. The Returning Officer held four briefing meetings with the inspectors during the course of the day, at which he was updated, and they were able to consider all issues fed back to and from the polling stations. Each of the presiding officers at polling stations in King's Park Ward confirmed in their letters, dated 25 or 27 June 2014, that they sealed the three ballot boxes (one for each of the three elections) when their respective polling stations opened at 7am, and that all three ballot boxes remained sealed until they were delivered to the count venue at the Britannia Leisure Centre after the close of poll at 10 pm. Upon arrival at the count Centre, the Returning Officer's staff took the three sealed ballot boxes from them. The Returning Officer arrived at the count at the Britannia Leisure Centre at about 8.30 pm. Upon arrival he conducted a check of the room layout, and that the arrangements were in place for the receipt of ballot boxes. This included the layout of the area for receipt of ballot boxes, the staff to check the ballot boxes, the security arrangements, the stewarding in the car park, and the support staff to assist the presiding officers, on arrival, to carry the three ballot boxes from each polling station in to the Leisure Centre. After the close of poll at 10 pm, the first ballot boxes were received at about 10.15 pm. Upon receipt the ballot boxes were placed on the count tables, it having been recorded that they had been received. The ballot paper account was then checked for accuracy. Each of the ballot boxes was placed in the allotted place in the count venue. All of the ballot boxes from polling stations were received by about 11.45 pm, when the room set-up was re-checked so that the count could start on time the next morning. By about 2 am, the final postal ballot boxes were received. The fire exit doors at the Leisure Centre were closed, chained and sealed with ballot box seals. The fire doors were of the push bar type, and could only be opened from inside the building. All staff then exited from the final set of doors. Those doors were then padlocked and sealed. There were no staff left in the count room. Security staff stayed on guard outside the building overnight. On 23 May 2014, the Returning Officer returned to the count centre at about 7.35 am. The count centre had been opened at 7.30 am by Michael Summerville, a Deputy Returning Officer, and Head of Electoral and Member Services at the London Borough of Hackney. Mr Summerville, in his witness statement dated 30 October 2014, states that, when he arrived at the count centre at 7.30 am, he met with Tim Mahoney, a Deputy Returning Officer and Head of Facilities Management for the London Borough of Hackney, and Shirley Hamil, Senior Electoral Services Officer. They then checked that the doors to the centre were secure and had not been tampered with, and in the presence of security officers broke the seals, unlocked the doors and entered the hall. He confirms that all ballot boxes were positioned as agreed in their correct places as left overnight, with all box seals intact. The Returning Officer also observed that the venue was as it had been left the night before, and that the seals on all the ballot boxes remained intact. At 9 am, candidates, agents and guests were admitted to the count. The verification and count began at 9.05 am. At one end of the room, the mayoral election count was carried out, and at the other end of the room the local election count was carried out. The count proceeded without incident. The count was completed by about 9.35 pm, when the final result in the local election was declared. The ballot papers for the local and mayoral elections were then sealed in ballot boxes. The Returning Officer states in his evidence that the petitioner was not present at the receipt of ballot boxes at the count venue on 22 May 2014, the locking of the count venue at 2.15 am on 23 May 2014, or the opening of the count venue later that morning. The Returning Officer received no complaint from any candidate or agent about the security of the ballot boxes at polling stations or the count venue. Other relevant evidence Mr Summerville, who has worked in the field of electoral registration and elections for twenty-six years, described in his witness statement his various dealings with the petitioner in the run-up to the election. On 7 April 2014, the petitioner attended Mr Summerville's office and requested a set of nomination papers, and a copy of the electoral register for the borough. He was provided with nomination papers, and an election timetable. On 15 April 2014, the petitioner again attended the office with a written request for the register of electors for King's Park Ward. He was supplied with a copy of the most recent register of electors for King's Park Ward, which reflected recent boundary changes, a copy of a ward map, and postal voters lists. The petitioner submitted his nomination papers as a candidate in the King's Park Ward to Mr Summerville on 23 April 2014, which were accepted as valid. The petitioner appointed himself as his election agent, and was, accordingly invited to attend a meeting of agents held on 30 April 2014 at Hackney Town Hall, conducted by the Returning Officer. The meeting was also attended by Mr Summerville and Gifty Edila. The petitioner was present at the meeting, where all agents were given a full briefing on all matters relevant to the forthcoming elections. Attendees had an opportunity to ask questions or raise any issues, and to receive copies of updated electoral registers, absent voters lists and ward maps. The petitioner participated in the meeting, and appeared to leave satisfied with the arrangements, as were all other attendees from the main political parties. Thereafter, all further communications and updates relating to the elections were supplied to election agents, including the petitioner, weekly by e-mail, and included any further advice from the returning officer or from the Electoral Commission for the benefit of agents and candidates. All agents were advised to refer to the Commission's guidance for candidates and agents available on its website, specifically detailing the rights of candidates and agents to voter records held by the Council's Electoral Registration Officer. On 5 May and 19 May 2014, the petitioner attend Mr Summerville's office again, to collect updated copies of the ward map for King's Park in various sizes, absent voters lists and registers. On one occasion, Mr Summerville's deputy provided the petitioner with a copy of the borough map in A2 size and on computer disk. Mr Summerville noted that, in the twenty-one days leading up to deadline for absent voting applications, only 6 further postal voting applications were received, and only 5 further proxy voter applications. Mr Summerville explained that all project plans and arrangements regarding the poll and count were provided by him to the Electoral Commission on agreed dates for submission of specific evidence to meet the Commission's Performance Standards. Responses from the Commission confirmed that they were satisfied with the arrangements that the Council had in place. By way of example, the Commission observed in January 2014 that it was "impressed with the extremely thorough approach that you demonstrate to planning the elections on 22 May", and in February 2014 that "the evidence you have provided shows that all of the requirements are being met". A letter from the Commission to the Returning Officer after the election indicated that the Council met all performance standards for Returning Officers at the combined elections on 22 May 2014. Tim Mahoney was charged by the Returning Officer with overseeing security arrangements for the May 2014 elections, and the count process. His witness statement is dated 27 June 2014. He explained that the company that had been engaged in November 2013 to provide security services for all Hackney corporate buildings and reception points, CIS Security, would be engaged to provide the security services in connection with the May elections. After various meetings with CIS directors, a formal "Schedule of Services" to be provided by CIS was agreed and signed on 15 April 2004. Further meetings and site visits to the count centre followed to ensure that proposed arrangements were rehearsed and embedded. At a final meeting on 20 May 2014, all count security staff were fully briefed on their duties throughout the count process. On 22 May 2014, security guards were deployed from 9 pm at the count Centre, to direct presiding officers returning from polling stations to the designated entrance point and ensure that only authorised personnel entered at that point. At the close of the ballot box receipt process, Mr Mahoney was the person who locked and sealed all relevant doors at the Centre as described above. The security codes of all the plastic seals were recorded by him. After all personnel had left the building, the Centre Manager set the alarm and secured the exterior front door to the Centre. Following the close of the Centre, two security guards with a vehicle were deployed to enhance the alarm and security camera protection of the building. Mr Mahoney further briefed them on security expectations overnight. Mr Mahoney explained that the Police had confirmed, at a meeting held on 1 May 2014, that they would enhance their night patrol arrangements to ensure additional security cover overnight at the count Centre. Mr Mahoney confirmed the process for opening up the Centre on Friday 23 May 2014, as described above, and that at no time was any one individual left with the ballot boxes in the main hall. All the ballot boxes were in the same position as they had been left in overnight. Gifty Edila provided a witness statement dated 15 October 2014, in which she described how she and Mr Summerville had overall control of management of the elections on 22 May 2014. She was present at the count, and confirmed that all the ballot boxes were sealed by the presiding officers at the polling stations at the start of poll, travelled securely to the Centre, and remained securely sealed when they were left in the Centre overnight. The seals were not broken until the start of the count on 23 May 2014. She also confirmed the evidence of others as to the procedure for securing the Centre at 2.15 am and reopening it at 7.30 am on 23 May. The only evidence adduced on behalf of the first respondents was in a witness statement of Sharon Patrick dated 30 October 2014, in which she stated that had been an elected councillor on Hackney Council for twenty-six years, had held various senior posts on the Council, and is currently the Speaker of the Council and the Civic Mayor. She says that, in her experience, it is not unusual for the count at local government elections to be deferred to the day after polling, without any problems. She also said that, in relation to the election, she could find no fault attributable to the Returning Officer or his staff. The submissions of the Returning Officer The petition records that the petitioner was an unsuccessful candidate for the King's Park Ward. The first respondents received, respectively, 2,290 votes, 2,068 votes and 2,013 votes. The next candidate received 701 votes. There were then six other candidates before the petitioner, in numerical order, was reached. He received 134 votes. There has been no suggestion that the ballot papers, which have been preserved as required by rules 51-54 of the 2006 Principal Areas Rules, do not reveal those figures. Accordingly, if this petition is to succeed there must have been such multiple breaches of the relevant provisions as to render the election not recognisable as such. In other words, the election must have been so flawed that it was not conducted in accordance with the law as to elections. Alternatively, it must be shown that any breaches of election law affected the result of the election. Rule 45(3A) of the Parliamentary Rules The petition takes as its first point rule 45(3A) of the Parliamentary Rules. This provides an added point to the timetable for Parliamentary elections. It is not within or part of the timetable for local authority elections. The Returning Officer would have been wrong to seek to apply it to the 2006 Principal Areas Rules. Rule 45(3A) was added to the Parliamentary Rules by section 48(3) (a) of the Constitutional Reform and Governance Act 2010. The long title of the Act confirms both that such provision was solely to affect parliamentary elections and was not a security measure. The long title says, inter alia, that the Act was to make provision relating to the counting of votes in parliamentary elections. The petition in so far as based on rule 45(3A) of the Parliamentary Rules cannot be well founded. There is no particular requirement in the 2006 Principal Areas Rules as to when the count should start. However, (i) the Interpretation Act 1978, at section 12, provides that where a duty is impose d it is implied it is to be performed from time to time as occasion requires; (ii) once the count has started a returning officer must so far as practicable, subject to refreshments, proceed continuously with it except he may exclude the hours between 7pm and 9am (rule 45(12 of the 2006 Principal Areas Rules); and (iii) (existing) councillors retire on the fourth day after the ordinary day of the election so there is no equivalent pressure to know who has been elected as there is in a parliamentary election, especially when a coalition government may have to be formed(the 2010 Act received its Royal Assent in April 2010 when Parliament was plainly contemplating its dissolution and an uncertain outcome for the May general election). There is nothing to suggest that Parliament viewed the rule change (for parliamentary elections) as bearing on security. There is nothing to suggest that Parliament has ever viewed counting on a day subsequent to the poll as inimical to security. The above submissions in relation to rule 45(3A) of the Parliamentary Rules were contained in the Returning Officer's main skeleton argument for the trial. The first respondents then served a skeleton argument, in which the court was referred to section 36 of the 1983 Act, which provides: "36. Local elections in England and Wales. (1) Elections of councillors for local government areas in England and Wales shall be conducted in accordance with rules made by the Secretary of State. (2) Rules made under this section shall apply the Parliamentary Rules in Schedule 1 to this Act, subject to such adaptations, alterations and exceptions as seem appropriate to the Secretary of State." The first respondents submitted that the language of section 36(2) make it mandatory to apply the Parliamentary Rules to local elections, unless they have been adapted, altered or subjected to an exception in the local rules. There is no provision in the 2006 Principal Areas Rules equivalent to rule 45(3A). Therefore, it was submitted, as rule 45(3A) has apparently not been adapted, altered or subjected to an exception in the 2006 Principal Areas Rules, it applies to local elections. However, even if it does apply, the first respondents submit that the Returning Officer did in fact take reasonable steps to begin counting votes as described in his witness statement. Apart from this point, the first respondents adopted the submissions made by the Returning Officer. In response to the first defendant's skeleton argument, the Returning Officer served further Observations on this point, which were amplified in oral argument. He submitted that the argument advanced on the rule 45(3A) point is simply wrong. He relied on the following supplementary points, summarised as follows: (i) The Act of 1983 distinctly provides for separate sets of rules for the conduct of local government elections to be made by the Secretary of State (section 36(1)). Separate sets of rules have always been made under section 36(1) for the election of councillors for different local government areas in England and Wales. Currently, these include the 2006 Principal Areas Rules, which apply to the election of councillors for principal areas, defined to mean, in England, a county, a district or London borough, and in Wales, a county or a London borough. A separate set of rules has been made under section 36(1) for the election of councillors of a parish or a community, currently the Local Elections (Parishes and Communities) (England and Wales) Rules 2006 ("the 2006 Parishes and Communities Rules"). Each set of rules is self-contained, and the relevant set of rules is applied by Returning Officers in England and Wales for the conduct of elections to principal areas or parishes and communities as appropriate. (ii) The Parliamentary Rules have been amended many times over the years. There are several examples of amendments that have been made to the Parliamentary Rules, which have not been mirrored and carried through into amendments of the 2006 Principal Areas Rules or the 2006 Parishes and Communities Rules. The reason for that is that it was the intention of Parliament that the relevant amendments to the Parliamentary Rules were only intended to apply to Parliamentary elections, and not to local government elections. An example of this is rule 6(2) of the Parliamentary Rules, which provides that the nomination paper of a candidate at a parliamentary election is no longer required to state his home address on the nomination paper. He is, however, required to state his home address in full on a separate home address form, which may contain a statement that he requires his home address not to be made public (rules 6(4) and (5)). These amendments to rule 6 were made by the Political Parties and Elections Act 2009. These amendments have not been mirrored in the rules relating to nomination papers in the 2006 Principal Areas, and Parishes and Communities Rules, and do not apply to local government elections. Rule 45(3A) of the Parliamentary Rules is a similar example of the same point. (iii) The 2006 Principal Areas Rules have been amended since rule 45(3A) was inserted into the Parliamentary Rules in 2010. No amendments were made to mirror rule 45(3A) in the Principal Areas Rules, thus leaving in place conflicts between the provisions in the Parliamentary Rules and the Principal Areas Rules, which remained silent of that particular matter. That cannot have been the intention of the Secretary of State, or Parliament, which must have been that rule 45(3A) was only intended to apply to Parliamentary elections. (iv) Legal text books dealing with election law state that rule 45(3A) applies to Parliamentary elections, but do not say that it applies by implication to local government elections (see eg. Halsbury's Laws of England, Vol 38, 5 th edition, para 425). The Electoral commission do not advise that this rule applies to local government elections. (v) Rule 53ZA in the Parliamentary Rules, introduced at the same time as rule 45(3A), requires that, if the counting at a Parliamentary election does not begin as required by that rule, a special report has to be made to the Electoral Commission in relation to the relevant election. This provision does not appear in the 2006 Principal Areas or Parishes and Communities Rules. If the argument of the petitioner and the first respondents were correct, rule 53ZA would also apply to local elections, but it does not. If it did, the Electoral Commission would have given clear advice to that effect, but has not done so. (vi) Section 17(2) of the Interpretation Act 1978 provides that, where an Act repeals and re-enacts, with or without modification, a previous enactment, then any subordinate legislation is treated as done under that re-enacted provision. Accordingly, if, by the amendment to introduce rule 45(3A), the Parliamentary Rules were being re-enacted, the 2006 Principal Areas Rules would have been left in place as they were. It is inconceivable that an amendment expressed as relating to Parliamentary elections had the effect of re-stating the 2006 Principal Areas Rules in a different form silently and by implication. Further, by section 12 of the 1978 Act, a continuity of powers and duties is presumed, so that the Secretary of State can be taken to have fulfilled his obligation to make rules by leaving, as he has done, the 2006 Principal Areas Rules in place without amendment. The overnight storage of the ballot boxes It is said that the overnight storage of ballot boxes at the Britannia Leisure Centre raises a rebuttable presumption that interference and tampering with the boxes and ballot papers occurred. Such cannot be the case. The rebuttable presumption is that administrative acts are properly performed: Calder Gravel v. Kirklees (1990) 60 P&CR 322. Further, the rebuttable presumption is that the requirements of the law are met rather than broken, i.e. a presumption of innocence. However, even if there were a rebuttable presumption of a breach of security, the evidence here clearly shows that there was no such breach. The ballot boxes, duly sealed at the start of poll, were duly received at the count centre from the presiding officers still sealed; the count centre was vacated, closed, chained and sealed; the count centre was found to be intact when opened later that morning, and found to be in the same state as when it had been closed and sealed. Further security arrangements were confirmed by the evidence of Mr Mahoney, and Ms Edila. Failure to provide information and materials The Petition alleges that there was a failure to provide the petitioner with certain information. However, Mr Summerville's evidence was that the petitioner was given on various dates a paper copy of the most current and updated copies of the electoral register, various copies of the ward map, absent voter lists and updated registers, and an A2 map of the borough together with a disk for a computer. It appears from this evidence that the petitioner's complaint about want of information and materials is not supported by the evidence. Further, the complaint, if correct, could have had no identifiable effect on the result of the election. Giving instructions to absent voters which favoured the Labour Party candidates The documents required to be despatched for postal voting are all determined by regulations, namely the Representation of the People (England and Wales) Regulations 2001, in particular Part V. The Returning Officer complied with these provisions. There is no evidence or substance in the proposition that one party was preferred over another. Providing voters with pencils in order to complete ballot papers In the ordinary way electors were provided with pencils at polling stations. There is nothing exceptional about this. Indeed voters expect there to be pencils. Rule 26 (4) (a) of the 2006 Principal Areas Rules requires the returning officer to provide materials to enable voters to mark ballot papers. Pencils plainly fall within the definition of such materials. Summary of submissions First, due preparation was made for the election. Second, the election was conducted in accordance with the relevant rules. Third, the count was conducted securely and safely. Fourth, the petitioner, as candidate, was provided with all due materials. Fifth, even if there had been an unidentified breach of the rules in the shape of an act or omission by the Returning Officer or his staff no effect on the result is discernible. It follows that the statutory grounds for a successful petition are lacking. The petition should be dismissed. The Court is invited to determine that the first respondents were duly elected and to so certify to the High Court. Such is the requirement of section 145 of the 1983 Act. The decision and findings of the Court This is a challenge by the petitioner to the validity of the result of a public local government election, and it is, therefore, in the public interest that it should be considered carefully and resolved promptly. The petitioner has acted in person in bringing and conducting this petition. As explained above, he has decided to take no part in the trial of the petition, and has submitted no witness statements from himself or others, or other evidence, in support of the allegations that he has made in the petition. Nevertheless, I I think that it is in the public interest that the allegations contained in the petition should be considered, and that the evidence filed by or on behalf of the respondents in answer to those allegations should be scrutinised with care. I have to consider the evidence and the law, and decide whether the petitioner has proved that the first respondents were not duly elected, within the meaning of section 127 of the 1983 Act. He alleges that the Returning Officer or his staff were guilty of acts, omissions, or breaches of duty, which meant that the election was not conducted so as to be substantially in accordance with the law as to elections, and/or were such that the result of the election was likely to have been affected. My approach to the allegations made in the petition is governed by section 48(1) of the 1983, which provides: "No local government election shall be declared invalid by reason of any act or omission of the returning officer or any other person in breach of his official duty in connection with the election or otherwise of rules made under section 36 [ie. the 2006 Principal Areas Rules] …above if it appears to the tribunal having cognizance of the question that – (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 the result." This section was considered by the Court of Appeal in the case of Morgan v Simpson (1975) QB 151, in which it was decided that both conditions in the section had to be satisfied if the election was to be saved (that is that the election had to be conducted substantially in accordance with the law, and the result should not be affected). The 'result' of the election in these provisions means the success of one candidate over the other, and not the particular number of votes recorded for a candidate ( East Clare Case 4 O'M & H 162, at 164). Accordingly, the first question I have to decide is whether it is to be inferred from the evidence in this case and so proved that the Returning Officer or his staff were guilty of the alleged acts, omissions or breaches of duty under the 2006 Principal Areas Rules, or any other relevant provisions of election law. The allegations made in the petition are largely matters of fact, and I will deal with those allegations later. However, the first allegation in relation to rule 45(3A) of the Parliamentary Rules is primarily a matter of law, which I shall deal with the outset. The rule 45(3A) point The crucial question is whether the petitioner is correct in his allegation, supported by the skeleton argument of the first respondents, that rule 45(3A) (the obligation to start the count within four hours of the close of poll) applies to a count at a local government election, by reason of the provisions of section 36(2) of the 1983 Act. Rule 45(3A) was inserted into the Parliamentary Rules contained in Schedule 1 of the 1983, by section 48(3)(a) of the Constitutional Reform and Governance Act 2010, the long title of which said that the Act was to make provision relating to the counting of votes in parliamentary elections. I am told by counsel for the Returning Officer that numerous local government elections have been conducted by Returning Officers throughout England and Wales since 2010, on the basis that there is no provision in the 2006 Principal Areas Rules equivalent to rule 45(3A), and that this rule only applies to Parliamentary elections. It is, therefore, of importance to Returning Officers that there should be a ruling on this point. It is important to understand that section 36(1) the Act of 1983 distinctly provides for separate set of rules for the conduct of local government elections to be made by the Secretary of State. Such rules, by section 36(2) of the 1983 Act, are required to apply the Parliamentary Rules in the 1983 Act, subject to such adaptations, alterations and exceptions as seem appropriate to the Secretary of State. In my view, if it is the intention of the Secretary of State and/or of Parliament that a particular rule in the Parliamentary Rules shall only apply to Parliamentary elections, then inevitably no equivalent rule will be included in the 2006 Principal Areas or Parishes and Communities Rules. That is what happened when rule 45(3A) was introduced into the Parliamentary Rules in 2010, with no equivalent consequential amendments being made to the 2006 Rules for local government elections. Each set of rules made under section 36(2) is self-contained and governs the conduct of the relevant type of local government election. Thus, the conduct of elections for principal areas are governed by the 2006 Principal Areas Rules, and the conduct of elections for parishes and communities are governed by the 2006 Parishes and Communities Rules. Returning Officers apply the relevant set of rules, depending upon which type of local government election they are conducting, and, therefore, know the precise rules with which they are under a statutory duty to comply. In my judgment, it would wholly unworkable for Returning Officers conducting local government elections to be required to look outside the relevant 2006 Rules, and consider whether there is some other and different rule in the Parliamentary Rules, which is to be implied into the 2006 Rules, or must be taken to apply directly to local government elections, by virtue of section 36(2) of the 1983 Act. It would be extraordinary if a Returning Officer could be placed in breach of his official statutory duty for failing to comply with a rule that only appeared expressly in the Parliamentary Rules, when there was no equivalent rule in the 2006 Rules, but with which he was obliged to comply by some process of implication. Such a scenario is, in my view, wholly untenable. There are examples of amendments that have been made to the Parliamentary Rules over the years that have not subsequently been included in the 2006 Rules for local elections. The amendment made to the Parliamentary Rules in 2009 to remove the requirement for a candidate at a Parliamentary election to disclose his home address on the nomination paper, as described in paragraph 48(ii) above, is a good example of this. I accept the submission of the Returning Officer that rule 45(3A) is another such example. If it had been the intention of the Secretary of State or Parliament that rule 45(3A) was intended to apply to local government election counts, I consider that the 2006 Rules would have been expressly amended to say so. I would also have expected a rule equivalent to rule 53ZA of the Parliamentary Rules to have been introduced into the 2006 Rules, requiring Returning Officers to provide a special report to the Electoral Commission explaining why the count had not begun within four hours of the close of poll. No such provision appears in the 2006 Rules. It is clear that the Electoral Commission has given no advice to Returning Officers, candidates or agents that rule 45(3A) and rule 53ZA apply to local election count. Such guidance is only given in relation the application of those rule to parliamentary elections. Legal text books, such as Halsbury's Laws of England, only speak of rule 45(3A) in relation to parliamentary elections. I accept the remaining submissions of the Returning Officer on the rule 45(3A) point. In my judgment, the Returning Officer is correct that the argument of the petitioner and the first respondents that rule 45(3A) applies to local government election counts is simply wrong, for the reasons set out above. To be fair to counsel for the first respondents, after she had heard the arguments on the rule 45(3A) point, she did not seek to pursue her argument to the contrary. Accordingly, I find as a matter of law that rule 45(3A) of the Parliamentary Rules applies only to parliamentary election counts, and does not apply to local government election counts. It follows from this ruling that the Returning Officer at the election could not have been in breach of rule 45(3A) of the Parliamentary Rules, because it did not apply to the election that he was conducting. In any event, it is not uncommon for the counts at local government elections to be postponed from the day of poll to the following day for practical reasons. This is particularly the case, when local government elections are combined with polls at other relevant elections. There is no rule to prevent this, and there is no reason why such postponement should compromise the security and integrity of the ballot, providing that suitable security arrangements are made. The factual evidence The evidence of the Returning Officer, Mr Summerville, Mr Mahoney and Ms Edila gives a clear, detailed and fully documented account of the preparations made for the election, the events of polling day and thereafter, leading to the conduct of the count. The evidence included the detail of the security arrangements in place at the Britannia Leisure Centre from the arrival of the ballot boxes after close of poll, through to the conclusion of the count. That is evidence of fact, and is unchallenged. In any event, I find the evidence of those four witnesses to be entirely credible and reliable, and I accept it. I also accept the evidence of Sharon Patrick, on behalf of the first respondents, that the postponement of a local government election count to the day following polling day is not uncommon. Overnight storage of ballot boxes This allegation is advanced in the petition as a consequence of the alleged breach by the Returning Officer of rule 45(3A). That allegation cannot be sustained. Nevertheless, the allegation is made that the overnight storage of ballot boxes at the Britannia Leisure Centre raises a rebuttable presumption that interference and tampering with the ballot boxes and ballot papers occurred, because the premises were insecure and unsuitable for the storage of these items. I accept the submissions of the Returning Officer that there is no such rebuttable presumption as a matter of law. However, the evidence of the Returning Officer and his witnesses, with documentary exhibits, clearly demonstrates that the ballot boxes were sealed by the presiding officers at the polling stations at the start of the poll; were received into the count centre from the presiding officers still sealed; were placed on tables in the counting hall ready for the count the next day still sealed; the count centre was vacated, closed, locked and sealed; the count centre was found to be intact when opened later in the morning of 23 May 2014, and found to be in the same state as when it had been closed and sealed. The seals on the ballot boxes were only broken at the start of the count. The count centre was also alarmed and guarded by outside security guards overnight. The evidence showed careful planning of the security arrangements for polling day and the count. This included detailed briefing meetings with the representatives of the security company, CIS, who were to provide the security arrangements. There is no evidence from which it can reasonably be inferred that any interference with the ballot boxes, or tampering with the ballot papers, took place, or may have taken place. In fact, the evidence clearly indicates that this did not happen. In my view, the count centre was a secure and suitable location for the ballot boxes to be stored overnight. I reject the petitioner's allegations in this regard. I find that the Returning Officer was not guilty of any act, omission or breach of duty in relation to the use of the count centre to store ballot boxes and papers overnight, or in relation to the arrangements to ensure the security of the ballot boxes and papers whilst stored there. Failing to provide information and materials There is no evidence to support this allegation. The evidence from Mr Summerville is clear that the petitioner was in fact supplied with the necessary information and materials on more than one occasion. Mr Summerville met the petitioner at the Council offices many times. There is no evidence that the petitioner ever complained that he lacked any information or materials. There is no substance to this allegation, and I reject it. I find that the Returning Officer was not guilty of any act or omission in this regard. Giving instructions to absent voters which favoured the Labour Party candidates I accept the Returning Officer's submissions in relation to this allegation. There is no evidence to support it. There is no substance to this allegation, and I reject it. I find that the Returning Officer was not guilty of any act or omission in this regard. Providing voters with pencils in order to complete ballot papers This is an absurd allegation. Voters at polling stations have been provided with pencils at polling stations for as long as may be remembered. As the Returning Officer points out, he is obliged by rule 26(4) of the 2006 Principal Areas Rules to provide materials to enable voters to mark ballot papers. That is what he did at this election. There is no substance in this allegation, and I reject it. The Returning Officer was not guilty of any act or omission in this regard. Conclusion All the evidence that I have seen indicates that the planning for and conduct of this election was of a high standard, and, apart from this petition, there were no complaints about the way it had been conducted. For the reasons set out above, I reject all the allegations contained in the petition. I have found that the Returning Officer was not guilty of any act, omission or breach of duty in relation to the election. I am completely satisfied that the election was so conducted as to be substantially in accordance with the law as to elections. There is no question of the result of the election being affected by any act or omission of the Returning Officer or his staff, because there were none. If any of the allegations had been established, there being no challenge to the accuracy of the count, it is difficult to see how the result could reasonably be thought to have been affected. The petitioner polled 134 votes, as against over 2000 votes being polled for each of the first respondents. This was not a close election. Accordingly, the petition must be dismissed. Under section 145(1) of the 1983 Act, I hereby determine and declare that the first respondents were duly elected. I shall certify this determination in writing to the High Court, under section 145 (2) of the 1983 Act. There were no allegations of corrupt or illegal practices at this election, and no reports to the High Court are required under section 145(3) or (4) of the 1983 Act. I will hear submissions on the question of costs. RICHARD PRICE OBE QC COMMISSIONER (Sent to the parties and the Court by e-mail 28 November 2014) (Handed down in Court at the Royal Courts of Justice on 15 December 2014) BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII