Hazards of running elections

Ballot iStock 000006080605XSmall 146x219In the run up to European and local elections next week, Sappho Dias and Lee Parkhill consider some of the problem areas thrown up for local authority solicitors and returning officers.

A privilege of being in the Chambers of Timothy Straker QC (occasionally dubbed with the title Mr Election Law) is that as the combined elections – European and Local – day of 22 May 2014 approaches, a number of problem areas have been highlighted for us to grapple with.

Need for insurance

The functions relating to election process are not that of the local authority’s executive; they are the responsibility of the Returning Officer[1]. Whilst in reality it is often the Chief Executive who is also appointed to act as the Returning Officer, the fact that the two roles reside in one person does not alter the legal fact that the Returning Officer functions autonomously from the executive, and he functions outside the direction and control of any authority who appoints him. Moreover, as the functions imposed on the Returning Officer in the election process are onerous, a sensible and desirable precaution is for the Returning Officer to obtain insurance in respect of his work. We are aware[2] that the preponderance of Returning Officers are insured with Zurich and that the guidance level for the insurance is around one million.

Nomination papers

For an election to proceed smoothly, a vital event is the correct submission of the nomination papers. The rules which govern the submission of nomination papers are set out in Rules 4 to 13 of the Local Elections (Principal Areas) (England and Wales) Rules 2006 for local elections and in Schedule 1, Part 2 Rules 4 to 13 of the European Parliamentary Elections Rules 2004 for European Elections. The Returning Officer is vested with powers to adjudicate the validity of nomination papers.

In the well-known case of Begum v. Tower Hamlets[3] a question arose as to where the responsibility lay in submitting the correct nomination papers. In that case, a Returning Officer (via a deputy) had indicated that the nomination papers submitted by the Respect Party would be checked by her. In fact, the nomination papers were misfiled in the Town Hall and not found until after the nominations had closed. On discovery, when the nomination papers were checked, they were found to be invalid.

The court at first instance agreed with the submission of the aggrieved (and excluded) candidate that because the Returning Officer had undertaken to check the papers, there was a legitimate expectation that this would be done and countermanded the election.

On appeal, the Court of Appeal reversed the decision, holding that the duty to file the correct nomination papers was on the nominee candidate. The duty could not be shifted to a Returning Officer. This decision makes it clear that there is no duty on a Returning Officer to check the nomination papers prior to the close of nominations.

It has also been stressed that the Returning Officer is not in the role of a detective and thus, there is not a duty on him to investigate if on the face of things, the nomination papers which have been submitted to him appear regular. There is not therefore any duty imposed on the Returning Officer to invalidate nomination papers where he is “suspicious” that any irregularity has occurred. Providing the nomination is submitted in accordance with the rules, the Returning Officer must accept them. Evidence of serious irregularity is required before the Returning Officer could invalidate the nomination, as provision exists under the rules for minor rectifications.

The Media

One of the questions we are frequently asked about is how to deal with media intrusion. Election process proceeds on a peculiar tension between two conflicting needs; the first is the need for openness and transparency so that the public may be confident of the integrity of the process and the second is the need to ensure sufficient confidentiality so that a voter may feel secure in knowing that he will be ensured privacy in respect of his vote. This is a tension about which all Returning Officers ought to be aware for striking a correct balance will ensure a smoothly run election.

In the pre-election talks and meetings[4] which we had had with various local authorities about the impending combined elections, our suggestion has been to have practical planning meetings prior to election day so that plans with regard to the count may be properly explained as to where to count will take place, which areas are permissible areas for cameras and finally the allocated area where candidates, both losers and winners, may be interviewed.

It goes without saying that it is not possible to anticipate in advance all issues which may arise and it may be sensible to identify in advance, those specialising in the area of Election Law who may be able to assist on polling day itself.

Sappho Dias and Lee Parkhill are barristers in practice at 4-5 Gray’s Inn Square. You can contact them by telephone on 020 7404 5252 or This email address is being protected from spambots. You need JavaScript enabled to view it..



[1] R.2(1)and Sch. 1D of the Local Authorities (Functions and Responsibilities) (England) Regulations 2000, SI No. 2853.

[2] Information from Timothy Straker QC.

[3] Lawtel document no. AC9400651, CA

[4] These talks in our view assist local authorities in positively asserting a project plan when answering questions about compliance with performance standards for the purposes of the Electoral Commission.