Campaign group fails in legal challenge after council dismissed petition calling for referendum on governance model

A High Court judge has dismissed a judicial review challenge to the London Borough of Newham’s decision to declare invalid a petition seeking a referendum to change the governance model of the council.

The referendum was sought by Democracy Newham pursuant to The Local Authorities (Referendums) (Petitions) (England) Regulations 2011 ("the 2011 Regulations").

Newham’s current governance model is the "Mayor and Cabinet" model, which provides for an executive mayor elected by local government electors for a local authority's area.

On 18 September 2020 Democracy Newham submitted a petition seeking a referendum to change the council's governance model to a "Leader and Cabinet" model. It said that it had reached the required number of signatures – 11,100 or 5% of the Newham electorate.

The decision by Newham to reject the petition as invalid was taken by the council's monitoring officer and director of law and governance, Daniel Fenwick, on behalf of Althea Loderick, its Chief Executive and "proper officer" for the purposes of the 2011 Regulations.

The council decided that amendments made by Coronavirus legislation to the regulations governing petitions required it to invalidate the petition as it was received between 16 March 2020 and 5 May 2021. The amendments to the petition regulations prohibited the presentation of petitions in this period, it argued.

In its formal Notice of an Invalid Petition (issued on 24 September, the same day it wrote to the claimant informing it of the decision), the council said: "The petition has been held to be invalid because regulation 9(1) of the Petition Regulations is amended by the Local Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) Regulations 2020/395 Pt 3 reg.12(3)(a) to invalidate the presentation of a petition between 16 March 2020 and 5 May 2021. The petition was presented on 18 September 2020."

At a full council meeting on 21 October 2020, five days after the claimant issued proceedings, the council resolved to hold a referendum on a proposed change instead to a committee system model of governance.

The report for that meeting recorded that following the introduction of the 2020 Regulations the referendum could not be held before 6 May 2021. It was resolved to hold the referendum on that date, for reasons set out in the report. Those reasons were that the referendum had to be held before 5 May 2022 and indeed significantly earlier than that date because of the possible need to plan for the implementation of a new model; and further that, if the date was set within 28 days of any other election, it had to be combined with that election, and that the only potential election for combination were the 2021 London elections to be held on 6 May 2021.

Mr Justice Morris noted that the effect of a referendum on a change of government as proposed by the council would be to preclude any other such referendum (by Newham or following a valid petition) for nine years.

In its legal challenge the claimant, Democracy Newham, sought to argue that the decision to declare its petition invalid was wrong and/or Wednesbury unreasonable.

Amongst other things it argued that the basis of the petition, if accepted, the referendum would be held on 6 May 2021. Accordingly, the referendum would not "otherwise be held or have been held during the relevant period" within the meaning of regulation 12(2) of the 2020 Regulations (i.e. not held between 16 March 2020 and 5 May 2021).

It sought a mandatory injunction requiring Newham to verify the signatories to the petition and to publish a notice declaring that it had received a valid petition and to hold a referendum as requested by the petition on 6 May 2021.

Democracy Newham also sought a declaration that the petition was valid if sufficient signatures were verified and that any resolution by the council that there should be any referendum as it has proposed was void, if sufficient signatories were verified.

Mr Justice Morris said the council’s case was that the claimant's primary case was “entirely dependent on the proposition that any referendum held pursuant to the petition would have been held on 6 May 2021. The council argued that "the requirements of regulation 16 are that any such referendum would have been held on a date no later than the 6 May 2021; and indeed would have been held earlier. It would have been required to have been held prior to May 2021. Accordingly such a referendum would "otherwise have been held during the relevant period"; it is therefore a referendum mentioned in regulation 12(2) and, as a result, regulation 12(3) applied to the Petition. The petition was presented within the relevant period and thus is not valid, pursuant to regulation 9(1)(c) of the 2011 Regulations, as amended.”

In Democracy Newham Ltd, R (On the Application Of) v London Borough of Newham [2021] EWHC 150 Mr Justice Morris – for the reasons given in paragraphs 83-90 of his ruling – concluded in relation to Regulation 12 of the 2020 Regulations (in their current form) that:

(1) On their true construction, the words, in regulation 12(3) of the 2020 Regulation, "In relation to a referendum mentioned in paragraph (2)" mean "in relation to a referendum in consequence of a petition under regulations made under section 9MC of the 2000 Act [The Local Government Act 2000]".

(2) Therefore, by reason of regulation 12(3)(a) of the 2020 Regulations, no petition for a referendum presented within the period beginning with the 16 March 2020 and ending with 5 May 2021 can be valid.

(3) It follows that the Petition was not valid and the Council did not err in law or act irrationally in reaching the Decision.

(4) Regulation 12(3) does not impose a second condition as alleged by the Claimant: in considering whether regulation 12(3)(a) amends regulation 9, the hypothetical question posed in regulation 12(2) did not fall for consideration by the proper officer. He did not err by failing to consider that question. For that reason, the Claimant's alternative case is unfounded.”

The judge also concluded that the Local Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) (Amendment) (England) Regulations 2021 SI 2021/52, which substantially amend the amending provisions of regulation 12 of the 2020 regulations and thus amend the 2011 Regulations, had no effect upon his conclusion. [The 2021 Regulations are due to come into effect on 9 February]

In a statement Newham said: “The council is pleased that the High Court agreed it made the correct decision in holding that the Regulations made under the Coronavirus Act 2020 legally required the council to declare the petition submitted last September as invalid.  Everyone can now move forward with certainty and we can undertake the task of running the elections on 6th May 2021.  We encourage everyone to ensure they exercise their democratic right to vote.”

Image: Oast House Archive / Newham Dockside building, Public domain, via Wikimedia Commons