Court allows election petition despite candidate declared winner in error later resigning

The Divisional Court has ruled that a candidate who won the most votes in their ward was, in fact, elected despite a mishap that saw the wrong candidate declared the winner.

In Green v Hannah-Wood & Anor (Re Representation of the People Act 1983) [2023] EWHC 2034 (KB) Mrs Justice Jefford, who heard the case with Mr Justice Soole, found that Julie Green, who stood for the Conservatives, should now be allowed to take up her seat on Nelson Town Council in Lancashire.

This was despite a procedural argument from the council's returning officer that the election petition could not succeed as the wrongly declared candidate, Patricia Hannah-Wood, had later resigned from her position.

In the ruling Mrs Justice Jefford set out the background to the petition:

1. On 4 May 2023, an election was held for the Town Council of Nelson in Lancashire. As the statement of the Second Respondent, the Returning Officer Ms Rouse, states, the Town Council is a parish council. The election on 4 May included election to represent the Marsden West Ward. The candidates were the Petitioner, Julie Green, standing for the Conversative Party and the First Respondent, Patricia Hannah-Wood, standing for the Labour Party.
2. It is not in dispute that Ms Green received 242 votes and Ms Hannah-Wood received 177 votes.
3. However, when the result was declared by the Returning Officer on 5 May 2023, the votes were transposed and it was declared that Ms Hannah-Wood had been elected and not Ms Green.
4. As Ms Rouse explained in her statement, the error arose because of the way in which the Count Supervisor recorded the votes. On the ballot paper Ms Green's name (Conservative) appeared first and Ms Hannah-Wood's name (Labour) appeared second. The Count Supervisor wrote the figures on a blank sheet of paper recording first the vote for Labour as 177 votes and then the vote for the Conservatives as 242. No names were given and this was in the opposite order from how they appeared on the ballot paper.
5. The results were then transposed on to the Declaration of Result of Poll which also gave Ms Green's name first and Ms Hannah-Wood's second. When the results were entered in the Declaration of Result of Poll, they were entered in the same order in which they appeared on the piece of paper. As a result, 177 votes was entered against Ms Green's name and 242 against Ms Hannah-Wood's.
6. The result was declared in accordance with the Declaration of Result of Poll. As the Returning Officer left the podium, the Count Supervisor informed her of the error. Legal advice was taken almost immediately and that advice was that the Returning Officer could not change what she had announced.

Commenting on the mistake at the time, Rouse said: "This was a simple human error which unfortunately wasn't picked up during the additional checks made at the count."

She advised Cllr Green to lodge an election petition.

Meanwhile, Hannah-Wood took up the seat, spending two months in office before resigning. During that time, she attended council meetings, was appointed to committees and cast votes on issues.

After Hannah-Wood's resignation, the returning officer's position changed. She argued that an election petition could not succeed, with her barrister arguing that the legislation on resignations meant the petition should be dismissed and that Green should pay the Returning Officer's legal costs.

Green’s claim was heard on 13 July.

At the Divisional Court, Jefford J noted that the substantive dispute between Green and the returning officer concerned the effect of the resignation.

The petitioner contended that the resignation was immaterial. Hannah-Wood was not lawfully elected or declared elected, and she, therefore, never held any office from which she could resign, Green argued.

However, the returning officer argued that once Hannah-Wood was declared elected, she was elected, whether or not "duly elected", and was, therefore, capable of resigning. Her resignation created a casual vacancy to be filled by further election or co-option. The returning officer said this statutory process was mandatory and must be followed.

Timothy Straker KC, who represented the returning officer, presented a skeleton argument that argued the effect of the resignation was that the petition served no purpose and should be dismissed. That was because, in light of the resignation and the process mandated to follow, it was not open to the court to determine that Green was duly elected with the effect that she was now entitled to take up her seat on the council.

But by the conclusion of the hearing, he had modified the Returning Officer's position to the extent that he accepted that it was open to the court to determine that Hannah-Wood was not duly elected. He maintained, however, that it was not open to it to determine that Green was duly elected.

Jefford J concluded: "In my judgment the argument that a person has been ‘elected’ even if not ‘duly elected’ is no more than semantic and meaningless."

She said the rules provide for the returning officer to declare as elected the person who has received the most votes.

"The giving of notice of that person's name follows from that, as must the ability to accept the office and resign from that office," she noted.

"The declaration and notification of the name of the person elected may represent the end of the proper and lawful process for election but, if the name of the wrong person is declared, there is a breach of the rules and the process has not been properly and lawfully concluded."

A person who did not receive the most votes may be declared to have been elected, but they have not, in fact, been elected and nor have they been duly elected, the judge added.

"If a person has not been duly elected, that person cannot lawfully accept that office or resign from that office."

Mrs Justice Jefford said the Returning Officer's argument placed reliance on the fact that there was statutory provision to save, “so to speak”, acts of a person whose election is subsequently challenged. Paragraph 43 of Schedule 12 to the 1972 Act provides that: "The proceedings of a local authority shall not be invalidated by any vacancy among their number or any defect in the election or qualifications of any member thereof."

The judge said: “It does not seem to me that this provision supports the Returning Officer's argument. If the Returning Officer's contention were right, any act of the person declared elected, and on this hypothesis elected, would be valid unless and until the Election Court declared otherwise and there would be no need for the saving provision. The existence of the provision, in my view, reinforces the point that a person who has not been properly elected is not elected but Parliament has pragmatically ensured that that would not unravel things done by a local authority in the meantime.

“In effect, a person is presumed properly and lawfully elected unless and until their election is questioned and the election court has determined the petition. If they are determined not to have been duly elected, there is an express saving for the proceedings of the local authority. There is no express saving for their acts of acceptance of office and resignation from office.”

Mrs Justice Jefford said Timothy Straker KC had submitted that if the Divisional Court found that the person declared elected was not elected (even if not duly elected), the court would be taking the remarkably bold course of stating that the declaration had no consequence.

“I do not accept that submission or that that would be the consequence of accepting the Petitioner's submissions. It is quite clear that the person who has been declared elected can act as a councillor until it is determined that that person has not been duly elected and that the acts of the local authority will not be vitiated by such a determination. It is the Returning Officer's submission that involves the bold proposition that the person declared elected is to be treated for all purposes as if elected even if later determined not to have been duly elected,” the judge said. [Her emphasis]

Mrs Justice Jefford said The Representation of the People Act 1983 provided the process for questioning a local election. “As set out above, section 139(3) requires that process to be completed even if the person whose election is questioned resigns or purports to resign. In other words, the section presupposes that a person can purport to resign, even if not properly elected, but that the election court will still proceed to determine that that person has not been duly elected and another person has been duly elected.”

The judge added: “Until the election court has determined the petition, the council cannot know whether that person has ever properly held office, was able to resign from that office, and, therefore, whether the obligations under section 89 [of the Local Government Act 1972] are engaged. In my judgment, that must have the effect of suspending the process under section 89(6) until the election court has determined the petition.

“Whilst on the facts of this case it is unnecessary to decide the point, I anticipate that the court would have the necessary jurisdiction to restrain a local authority from proceeding with the further electoral process pending determination of the petition. Whilst it would be unusual for the court to interfere with an election, the juxtaposition of a questioned election and, in effect, questioned resignation are themselves unusual. To restrain an election to fill a casual vacancy pending determination, in accordance with the Representation of the People Act 1983, as to whether there was a casual vacancy to be filled would be, in my judgment, in accordance with the legislation and not an interference with it.”

Mr Justice Soole agreed with Jefford J’s decision.  “It would have been a troubling anomaly if the effect of the resignation were to frustrate the true and proper purpose of the petition. However, as my Lady explains, section 139(3) of the Representation of the People Act 1983 both defeats that consequence and provides a complete reconciliation between the two statutes,” he said.

Greg Callus of 5RB acted for Green and was instructed by James Roochove of Astraea Linskills Solicitors.

Roochove said: "This was a really important case. If the Returning Officer's argument had succeeded, it would have caused chaos to the way we challenge election results in the UK.”

He added: “It would have given the person being challenged in Court an effective power of veto over the whole process by resigning. As a result, potentially costing petitioners tens of thousands and, in cases like Julie’s, could see perfectly legitimate election results being ignored and public money being wasted on unnecessary by-elections. Happily, this judgment rules that out.”

Commenting on the case, Cllr Julie Green said: "I was really shocked by this. Clearly there was a mistake here, and I fully appreciate we are all human and mistakes happen. I was told the only way to make this right was to go to Court, so I did.

"Yet when the person who lost the election decided to resign from the seat she never won everything changed. The Returning Officer's London legal team, which included a leading election law KC, then argued the votes cast on 4 May should be ignored and that I should have to withdraw my petition, thus losing money spent to issue it and opening me up to paying her legal fees. I was, to put it mildly, really quite angry and concerned about this."

Adam Carey