Jarvis v Secretary of State for Housing, Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Choudhury |
| Judgment Date | 06 April 2018 |
| Neutral Citation | [2018] EWHC 1259 (Admin) |
| Docket Number | CO/1358/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 April 2018 |
[2018] EWHC 1259 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Choudhury
CO/1358/2018
The Queen on the Application of
APPEARANCES
Mr P Oldham QC (instructed by Steel and Shamash) appeared on behalf of the Applicants.
Ms C McGahey QC (instructed by the Government Legal Department) appeared on behalf of the First Respondent.
Mr T J Straker QC (instructed by Sharpe Pritchard) appeared on behalf of the Second Respondent.
The first claimant, Mr Jarvis, is a Member of Parliament for the second claimant, the Labour Party. Mr Jarvis intends to stand in the forthcoming mayoral election for the Barnsley, Doncaster, Rotherham and Sheffield Combined Authority. The Combined Authority is a form of local authority provided for by the Local Democracy, Economic and Construction Act 2009. He has been put forward as a candidate for the second claimant. The election procedure is governed by the Combined Authorities (Mayoral Elections) Order 2017, which came into force on 31 January last year. The order includes a requirement for candidates to give their home address in full in their nomination papers in circumstances where that address is subsequently published (“the requirement”). Mr Jarvis does not wish to publish his address. He has been the subject of death threats and considers that publication would endanger his life, or that of members of his family. Mr Jarvis and the Labour Party seek judicial review of the requirement and of the Returning Officer's decision that Mr Jarvis has to abide by the requirement.
Mr Jarvis was selected to be the candidate by local members of the party on 23 March. He became aware of the requirement, he says, on 27 March. The difficulties with the publication of his address were raised with the Returning Officer. However, the Returning Officer confirmed that the address would have to be provided.
His candidature for the election was only confirmed on the evening of Good Friday, 30 March 2018. A letter before action was sent to the Returning Officer and the Secretary of State on 3 April, which was a bank holiday. On 4 April, an application was made for urgent consideration to the Administrative Court. The urgency arose because of the need to submit nomination papers in respect of the election by 4.00 p.m. today, 6 April. As the vacation judge on duty at the time I dealt with the application. As there had to be a determination of the issue before 4.00 p.m. today, I directed that there be a rolled-up hearing this morning. Extremely tight directions were given for the provision of skeleton arguments and responses from the defendants. I am grateful to all concerned and, in particular, to counsel for managing to comply with the directions and for their helpful submissions this morning.
Legal Framework
The obligation on an electoral candidate to provide his or her name and full address in support of nomination has a long history. If one goes back to the Ballot Act 1872, one sees that r.6 of the Rules for Parliamentary Elections provided that:
“The description of a candidate in the nomination paper should include his names, his abode and his rank, profession or calling.”
The Representation of the People Act 1983 repeats much of what is in the Ballot Act 1872, save for some updating of language. The Rules for Parliamentary Elections are contained in Schedule 1 to the 1983 Act. Rule 6 provides that:
“The nomination paper shall state the candidate's full name, home address in full and, if desired, description.”
In 2009, there was an amendment to the rules in respect of parliamentary elections, whereby candidates were not required or could decide not to provide their home address for publication but were still required to provide it to the Returning Officer.
Local elections have their own sets of rules. The Local Elections (Principal Areas)(England and Wales) Rules 2006 govern the procedure for election for constituent councils. Those require the provision of a home address.
The Mayoral Elections Regulations 2007, as the name would imply, provide for rules in respect of mayoral elections. The provisions as to nomination in those rules are identical to those in the Local Election Rules. They also require candidates to provide their home addresses.
Part 6 of the 2009 Act provides for the Secretary of State to create combined authorities. The election of a mayor of a combined authority has to be conducted on the same day as the ordinary election of a constituent council of the combined authority (see para.2 of Schedule 5B to the 2009 Act). By para.8 of Schedule 5B to the Act, to be a mayor of a combined authority a person must have owned property or resided or worked in the combined authority area for 12 months before election day or be entitled to vote in the election. Paragraph 12 of Schedule 5B to the 2009 Act provides that:
“The Secretary of State or the Minister for the Cabinet Office may, by order, make provision as to the conduct of elections for the return of mayors.”
Sub-paragraph 6 of that paragraph also provides that:
“No return of a mayor at an election is to be questioned, except by an election petition under the provisions of Part 3 of the 1983 Act as applied by or incorporated in an order under this paragraph.”
The 2017 Order made pursuant to that enabling power, so far as relevant, provides for the election to be conducted in accordance with the rules set out in Schedule 1 to the Order. Rule 3 of those rules sets out the relevant timetable for such elections. These are calculated by reference to a number of weeks, working back from the election date. Rule 6 deals with the nomination of candidates. The relevant provisions of that provide as follows: Rule 6.1
“Each candidate must be nominated by a separate nomination paper.”
Rule 6(3) provides that:
“Subject to para.7, a nomination paper must state the candidate's full names, home address in full and, if desired, a description.”
Rule 6.6 provides that:
“Paragraph 7 applies where the mayor is to exercise functions of a Police and Crime Commissioner in accordance with an order made under Schedule 5C to the 2009 Act.”
And 7 provides that:
“Where this paragraph applies, the nomination paper, instead of stating the candidate's home address, may contain a statement made and signed by the candidate that he or she requires the home address not to be made public, and if it does so must state the name of the relevant local government electoral area.”
Thus, where the mayor is to exercise Police and Crime Commissioner (“PCC”) functions, there is an exception to the requirement to provide home addresses. The authority in this case is not one where the mayor is required to exercise such functions. Accordingly, the exception does not apply here.
Under r.12, the Returning Officer must examine each nomination paper to decide whether it is valid. The grounds of invalidity include that the particulars of the candidate are not as required by law. Rule 12.7 provides that:
“The Combined Authority Returning Officer's decision that a nomination paper is valid shall be final and shall not be questioned in any proceeding whatsoever.”
Rule 12.8 provides that:
“Subject to para.7, nothing in this rule prevents the validity of a nomination being questioned on an election petition.”
Rule 13 is probably critical for present purposes. This is headed “Publication of Statement of Persons Nominated”. Rule 13.1 says that:
“The Combined Authority Returning Officer must prepare and publish a statement showing the persons who have been and stand nominated and any other persons who have been nominated, with the reasons why they no longer stand nominated.
(2) A statement must show the names, addresses and descriptions of the persons nominated as given in their nomination papers.”
Sub-paragraph 8 provides for the exception in respect of those carrying out PCC functions. That is, necessarily, a very brief summary of the detailed provisions governing this area.
The Grounds of Complaint
There were originally three grounds on which the claim was based. The first is that the order imposing the requirement is irrational or otherwise ultra vires the enabling legislation, that is to say the 2009 Act. The second is that the Order is in breach of Mr Jarvis's rights under Art.2 of the European Convention on Human Rights, the right to life, in that publication...
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