Local government elections

May 22nd, 2023 by James Goudie KC in Elections and Bylaws

The majority decision in MAHARAJ v CABINET OF REPUBLIC OF TRINIDAD AND TOBAGO (2023) UKPC 17 concerned substituting four years for three years as the periods of office of Councillors and Aldermen, including apparently in the case of incumbents.  If so, incumbents would serve for an additional year with elections postponed for one year.  A judicial review challenge was brought to such a change to the basis upon which the incumbents had been elected.  The Privy Council observe (para 31) that it is an “essential element” of any democratic form of government that the electorate choose their representatives for a “limited period”: “The right to vote out representatives is as important as the right to vote in representatives”.  At the end of the period for which they were elected, the electorate has the right to decide whether they wish the incumbent representatives to remain in office, assuming they stand for re-election.  The Privy Council add (para 34) that it is inimical to a representative democracy that the representatives are chosen by anyone other than the electorate.

The principle of legality applied (paras 38-43 inc).  That is a principle of statutory interpretation that, in the absence of clear words, legislation will not be construed as being contrary to fundamental common law rights.  Fundamental rights or the rule of law cannot be overridden by general or ambiguous words. The fact that the democratic process, and the voting rights of individuals in that process, are derived solely from statute, and are not a product of the common law, does not diminish their fundamental importance.  Ambiguities in legislation are resolved in favour of democratic rights: “…the central importance of the statutory regime for democratic government … requires the use of clear language.”  The change should be interpreted as not applying to incumbents, rule the 3-2 majority of the Privy Council.


Elections Act

May 23rd, 2022 by James Goudie KC in Elections and Bylaws

The Elections Act 2022 has 7 Parts and 12 Schedules. Part 1 relates to administration and conduct of elections.  It includes provisions on voter identification, postal and proxy voting, undue influence, assistance with voting for persons with disabilities.  Part 2 relates to overseas electors and EU citizens, Part 3 to the Electoral Commission, Part 4 to regulation of expenditure, Part 5 to disqualification, and Part 6 on information to be included with electronic material. Part 7 is General.


Voter Identification

April 27th, 2022 by James Goudie KC in Elections and Bylaws

The appeal in R (Coughlan) v Minister for the Cabinet Office (2022) UKSC 11 concerned a challenge brought by Mr Coughlan to orders made by the Minister for the Cabinet Office in respect of Braintree District Council and nine other local authorities (“the Pilot Orders”). These Pilot Orders authorised schemes to temporarily change the rules set out in secondary legislation governing local elections. These schemes, which were implemented in ten local authority areas in respect of the local government elections in May 2019, each introduced a new requirement for some form of voter identification for those local elections.

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Voter Identification

June 8th, 2020 by James Goudie KC in Elections and Bylaws

In Coughlan v Minister for the Cabinet Office (2020) EWCA 723 the Court of Appeal upholds the dismissal of a challenge to the lawfulness of a pilot scheme to require voters in certain local authority areas to produce identification documentation as a pre-condition to obtain a ballot paper to enable them to vote. The scheme was under Section 10(2)(a) of the Representation of the People Act 2000. This was a permissible restriction, not on the right to vote, but on “how” voting is to take place. “How” is a broad and general concept and covers an experimental scheme requiring identification at the polling station to demonstrate that entitlement.


Public Health Emergency

April 7th, 2020 by James Goudie KC in Elections and Bylaws

Following on the Elections scheduled for 7 May this year being postponed by 12 months until 6 May next year, the Local Government (Postponement of Elections and Referendums) ( England and Wales) Regulations 2020, S.I. 2020/395, pursuant to Sections 61 and 63 of the Coronavirus Act 2020, contain detailed provisions that specified local elections and referendums that would otherwise be required before 5 May 2021 are postponed until 6 May 2021. The specified local elections are those to fill “casual vacancies” in local authority and other bodies, including “local by-elections” under Section 89 of the Local Government Act 1972. The specified referendums include those relating to governance changes and neighbourhood planning.


Election Petition

March 24th, 2020 by James Goudie KC in Elections and Bylaws

On the dissolution of Parliament, a Parliamentary Bye-Election Petition does not abate, with the Court having no jurisdiction with regard to costs. Rather, it can be withdrawn, with the leave of the Court, upon the petitioner paying the respondent’s costs. So held in GREENE v FORBES (2020) EWHC 676 (QB).


Election Expenses

February 28th, 2020 by James Goudie KC in Elections and Bylaws

The primary purpose of the Police and Crime Commissioner Elections (Amendment) Order2020, S.I. 2020/190, is to provide that “election expenses” are not to count towards a candidate’s spending limit to the extent that they are reasonably incurred and reasonably attributable to a candidate’s disability.


Welsh Electoral Reform

February 4th, 2020 by James Goudie KC in Elections and Bylaws

The Welsh Minister for Housing and Local Government has announced on 3 February 2020 an “ Electoral Reform Support Grant “ to be made available to all Welsh local authority Electoral Services teams. This is to support their work in implementing both recent and forthcoming electoral reform in Wales. It is in order to assist these teams with the pressures associated with the extension of the franchise, canvass reform and other Welsh electoral reform. It is in particular to support local authorities with registering newly enfranchised individuals. The extensions include by lowering the voting age to 16 and extending the franchise to qualifying foreign citizens.


Expenses Incurred

September 19th, 2019 by James Goudie KC in Elections and Bylaws

In R (Good Law Project) v Electoral Commission (2019) EWCA Civ 1567 the Court of Appeal was concerned with the interpretation of the phrase “expenses incurred”, which is to be found throughout election legislation, and dates from the middle of the nineteenth century. The Court observed, at paragraph 82, that it did not appear to have caused any great difficulty in practice.  The Court referred, at paragraph 83, to the Cockermouth Division case (1901) 5 O’M v H 155, and said:-

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Election Timetable

April 4th, 2019 by James Goudie KC in Elections and Bylaws

MHCLG has updated its “Election timetable in England”, setting out how often different types of local authority in England hold elections for their councillors, subject to boundary changes, and its Guidance on “Local government structure and elections”, providing information on the different types of council in England and their electoral arrangements.