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Challenges to local election results

Jonathan Auburn QC and Mark Thornton consider the process for challenges to local election results under the Representation of the People Act 1983.

Those aggrieved about local election results are able to bring a challenge by issuing an election petition within 21 days of election day. The grounds for bringing a challenge include procedural failings, corrupt or illegal practices by the winning candidate, and general corruption affecting the result of the election. Strict requirements are imposed by the regime for election petitions before such a challenge can be brought.

Legal framework

The right to present an election petition has existed in a broadly similar form since the middle of the 19th Century, and the ability to challenge elections in some way is even older.

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The right to present an election petition, and the process for doing so, are now found in Part III of the Representation of the People Act 1983 (“the Act”) and in the Election Petition Rules 1960 (“the Rules”).

In addition, guidance is provided in the Queen’s Bench Guide 2022 (“the QBD Guide”) and on Gov.UK.

Grounds

A challenge to a local election via an election petition can be brought on the following grounds:

  • The person elected is disqualified from office;
  • The person elected was not duly elected;
  • The person elected engaged in corrupt or illegal practices;
  • General corruption affected the result of the election;
  • The person elected employed a corrupt agent.

Those grounds are summarised in s 127 of the Act, but draw upon offences set out throughout the Act. They can be thought about as falling within one of three categories.

First, there are formal procedural grounds which relate to disqualification and due election. Where the issue is that the person elected is subject to formal disqualification from office, then the election result does not stand. Formal disqualification can arise if the individual is in the paid employment of the relevant local authority, has been declared bankrupt, or has been convicted previously of electoral offences. If failures in the conduct of the election are proven, the election result may be avoided, but only if the failures affected the result or were significant enough to mean that the election was not “substantially in accordance with the law”: see section 48 of the Act.

Secondly, there are grounds relating to corrupt or illegal practices committed by the candidate, or with the knowledge or consent of the candidate. Such corrupt or illegal practices include, for example, bribery of voters or fellow candidates, the making of false statements, illegal employment of paid canvassers, employment of disqualified canvassers, or postal vote fraud. Proof of those practices by the candidate or the candidate’s agents leads to the election being avoided.

Thirdly, there is a ground relating to ‘general corruption’. That ground covers the situation where a corrupt or illegal practice is alleged, but it is not possible to show that the winning candidate was involved (either directly or through agents). Whereas proof of any corrupt or illegal practice by the candidate or an agent of the candidate (ie the second category above) leads to the election being avoided, general corruption only leads to an election being avoided if it was extensive enough that it may reasonably be supposed to have affected the result: see section 164 of the Act.

Procedure

There are strict procedural requirements under the Act and the Rules that have to be satisfied in order to bring an election petition. In brief:

  • An election petition regarding a local government election can only be issued by four or more voters (or eligible voters), or by a candidate.
  • The normal time-limit for issuing an election petition is 21 days after the day of the election. A separate deadline of 28 days from the date of the alleged wrong applies in certain rare circumstances.
  • There is a standard form petition appended to the Rules that should be used when issuing a petition, and the Rules also list other information that must be included. The fee of £569 to issue a petition must be paid. In addition, petitioners are required to give security for costs within 3 days of issuing the petition. The security for costs application costs £100, and the petitioner or petitioners can be required to provide security for costs up to a total of £2,500.
  • Petitioners are required to serve the petition on respondents within five days of issuance.
  • For challenges to local election results, petitions are heard by a commissioner appointed by the Queen’s Bench Division of the High Court.

Recent cases

There have been a number of recent cases concerning election petitions.

In Buchan v Elliott [2022] EWHC 255 (QB), Mr Buchan issued an election petition alleging that Ms Elliot, who had finished ten votes ahead of him in a Hartlepool local election, was guilty of illegal practices by making a false statement about him in an election flyer. The petition was dismissed, the court holding that the statement related to political conduct and character rather than personal conduct and character, as required by the offence. The case provides useful guidance on challenges alleging false statements in election publicity.

In Re Parish Council By-election for Church Fenton [2022] EWHC 937 (QB), a petition was presented on the basis that a number of failures in the election process meant that the winning candidates at a parish council by-election had not been duly elected. The failures included, for example, allowing a small number of unregistered voters to vote, and storing completed voting papers in an unsealed packet. The petition was dismissed. The court considered that the result of the election was not affected by the alleged conduct even if established, and the election had been conducted substantially in accordance with the law.

In Voloseniuc v Akram [2021] 2 WLUK 322, the Divisional Court confirmed that the general rule that costs followed the event applied in the hearing of election petitions. The petitioners in that case were held to be liable for the costs of the respondents in circumstances where the original result of the election had been confirmed by a recount of the votes by the High Court. The rule was not displaced by the fact that one of the respondents was the returning officer, who had initially refused to allow a recount, and who had admitted that one of the ballot bags had a faulty seal.

Conclusion

Those bringing and defending election petitions need to consider all aspects of the election petition regime when handling the petition. In particular the procedural requirements under the regime need to be closely scrutinised, most notably the upfront requirements to pay fees of £669 and post security for costs of up to £2500. Those requirements are generally strictly enforced. For example, in Stoddart and Hume v Gartland & Little [2014] EWHC 2817 (QB), petitions were struck out where security for costs was provided outside the three-day window following issuance of the petition. Challengers need to act quickly, and those defending challenges need to carefully scrutinise the steps taken by those bringing an election petition.

Jonathan Auburn QC is a barrister at 11KBW.

Mark Thornton is a lawyer specialising in public law.

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