R (Begum (Sultana)) v Tower Hamlets London LBC

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeSIR ANTHONY CLARKE,LORD JUSTICE RIX,LORD JUSTICE MAURICE KAY
Judgment Date02 May 2006
Neutral Citation[2006] EWCA Civ 733
Docket NumberC1/2006/0964
Date02 May 2006

[2006] EWCA Civ 733

Before:

Sir Anthony Clarke

(The Master of The Rolls)

Lord Justice Rix

Lord Justice Maurice Kay

C1/2006/0964

1) Sultana Begum
2) Mohammed Hassan
3) Fayaz Ali
Claimants/Respondents
and
Returning Officer For
London Borough of Tower Hamlets
Defendant/Appellant

MR T STRAKER QC and MR R PALMER (instructed by LB Tower Hamlets Legal Services, London, E14 2BG) appeared on behalf of the Appellant

MR H SOUTHEY (instructed by Messrs Birnberg Peirce & Partners, London NW1 7HJ) appeared on behalf of the Respondents

Judgement

SIR ANTHONY CLARKE MR:

Introduction

1

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

2

The judge also declared that:

"A new election be called by the Defendant under section 39(1) of the Act. The Claimants will be entitled to stand in that election provided that they deliver valid nomination papers before the closing date for nominations. Candidates validly nominated in the countermanded election will remain nominated pursuant to section 39(5)(b) of the Act".

3

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

The statutory framework and the correct approach

4

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

5

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

6

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

7

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

8

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

"(1) A nomination paper may not include a description of a candidate which is likely to lead voters to associate the candidate with a registered political party unless the party is a qualified party in relation to the electoral area and the description is authorised by a certificate –

(a) issued by or on behalf of the registered nominating officer of the party, and

(b) received by the returning officer before the last time for the delivery of nomination papers".

9

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

"5 – Subscription of nomination paper

(1) The nomination paper shall be subscribed by two electors as proposer and seconder, and by eight other electors as assenting to the nomination.

(3) The nomination paper shall give the electoral number of each person subscribing it.

7 – Decisions as to validity of nomination papers

(1) Where a nomination paper and the candidate's consent to it are delivered in accordance with these rules, the candidate shall be deemed to stand nominated unless and until –

(a) the returning officer decides that the nomination paper is invalid; or

(b) proof is given to the returning officer's satisfaction of the candidate's death; or

(c) the candidate withdraws.

(2) The returning officer is entitled to hold a nomination paper invalid only on one of the following grounds –

(a) that the particulars of the candidate or the persons subscribing the paper are not as required by law; and

(b) that the paper is not subscribed as so required.

(3) Subject to paragraph (3A), as soon as practicable after each nomination paper has been delivered, the returning officer shall examine it and decide whether the candidate has been validly nominated.

(3A) If in the returning officer's opinion a nomination paper breaks rule 4A(1), he shall give a decision to that effect as soon as practicable after the last time for the delivery of nomination papers.

(4) Where the returning officer decides that a nomination paper is invalid, he shall endorse and sign on the paper the fact and the reasons for his decision.

(5) The returning officer shall send notice of his decision that a nomination paper is valid or invalid to each candidate at his home address as given in his nomination paper.

(6) The returning officer's decision that a nomination paper is valid shall be final and shall not be questioned in any proceeding whatsoever.

(7) Subject to paragraph (6) above, nothing in this rule prevents the validity of a nomination being questioned on an election petition."

10

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

(1) If at a contested election proof is given to the returning officer's satisfaction before the result of the election is declared that one of the persons named or to be named as candidate in the ballot papers has died, then the returning officer shall countermand notice of the poll or, if polling has begun, direct that the poll be abandoned, and the provisions of subsections (1) and (5) of section 39 of the Representation of the People Act 1983 apply in respect of any vacancy which remains unfilled; but neither the countermand of the poll at the principal area election nor the direction that that poll be abandoned shall affect the poll at any relevant election or referendum.

(2) Where the poll at the principal area election is abandoned by reason of a candidate's death, no further ballot papers shall be delivered in any polling station and, at the close of the poll at any relevant election or referendum the presiding officer shall take the like steps for the delivery to the returning officer of ballot boxes and of ballot papers and other documents as he would be required to do if the poll at the principal area election had not been abandoned."

11

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

"(1) If in England and Wales at [a local government election, other than an election for the return of the London members of the London Assembly,] –

(a) the poll is countermanded or abandoned for any reason, or

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

the returning officer … shall order an election to fill any vacancy which remains unfilled to be held on a day appointed by him.

That day shall be within the period of [35 days] (computed according to section 40 below) beginning with the day fixed as the day of election for the first-mentioned election.

(2) If for any other reason an election to an office under the Local Government Act 1972 [or the 1999 Act] … other than that of chairman of a parish or community council or parish meeting or parish or community councillor, is not held on the appointed day or within the appointed time, or fails either wholly or in part or becomes void, the High Court may order an election to be held on a day appointed by the court.

(5) Where an election is ordered to be held under this section –

(a) rules under section 36 above relating to the notice to be given of an election and the manner in which an election is to be conducted apply in relation to the election so ordered to be held as they applied or would have applied in relation to the election which has not been duly held or has failed or become void;

(b) no fresh nomination is necessary in the case of a candidate who remains validly nominated for that election.

(6) An order made –

(a) under this section may include such modifications of the provisions of –

(i) this Part of this Act (and the rules under section 36), and

(ii) the Local Government Act 1972 [or the 1999 Act] …

as appear to the High Court, or, as the case may be, the district council [or Welsh county or county borough council], necessary or expedient for carrying the order into effect;

(b) by a … council under subsection (4) above with respect to an election of parish or community councillors may modify the provisions of –

(i) this Act (and the rules with respect...

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