Elected Representatives

March 12th, 2019 by James Goudie QC in Elections and Bylaws

Currently all controllers for the purposes of the Data Protection Act 2018 (“DPA 2018”) are required to provide certain information to the Information Commissioner’s Office (“the ICO”) and pay a charge, unless a relevant exemption applies. There are a number of exemptions from paying the charges for certain types of data controller and processing. The exemptions are intended to form part of a fair and flexible framework of paying charges to the ICO, and provide for scenarios where payment of a charge would not be appropriate, for example because payment of the charge would give rise to significant negative impact. Read more »

 

Elections

February 27th, 2019 by James Goudie QC in Elections and Bylaws

The Combined Authorities (Mayoral Elections) (Amendment) Order 2019, S.I. 2019/350, and The Local Authorities (Mayoral Elections) (England and Wales) (Amendment) (England) Regulations 2019, S.I. 2019/351, amend the rules that apply to Combined Authority Mayoral Elections and Local Authority Mayoral Elections. The rules are amended to remove the requirement that each candidate’s home address must be published during the election process and be included on the ballot paper. The instruments also remove the requirement for each candidate’s qualifying address to be published during that process. A candidate’s qualifying address is the address that qualifies the candidate to stand for election. Read more »

 

Illegal Election Practice

December 18th, 2018 by James Goudie QC in Elections and Bylaws

In the Matter of the Representation of the People Act 1983 (“the RPA”) and in the Matter of a Local Government Election in the Boulton Ward of the City of Derby, Banwait v Bettany (2018) EWHC 3263 (QB) was an Election Petition brought by Mr Banwait.

He was the unsuccessful Labour candidate in the local Election. Mr Banwait polled 1,128 votes in the Election, some 474 votes fewer than the successful candidate representing UKIP, Mr Bettany. He was the respondent to the Petition. By his Petition Mr Banwait challenged the Election and sought an order that Mr Bettany was not duly elected and that the Election was void, and would have to be re-run. Read more »

 

Authorisation and declaration of election expenses

July 25th, 2018 by James Goudie QC in Elections and Bylaws

R v Mackinlay (2018) UKSC 42 is a pre-trial appeal concerning a point of pure statutory construction. The Respondents face charges of knowingly making false declarations in relation to election expenses, or aiding and abetting or encouraging or assisting such offences. The parties asked the judge to determine the point on a preparatory hearing.

The question of law certified by the Court of Appeal (Criminal Division) as a point of law of general public importance is as follows:

“Do property, goods, services or facilities transferred to or provided for the use or benefit of a candidate free of charge or at a discount (as identified in section 90C(1)(a) of the Representation of the People Act 1983 (as amended)) only fall to be declared as election expenses if they have been authorised by the candidate, his election agent or someone authorised by either or both of them?” Read more »

 

Election candidates home address

June 7th, 2018 by James Goudie QC in Elections and Bylaws

The mayoral election procedure in R (Jarvis) v SoS for CLG (2018) EWHC 1259 (Admin) was governed by the Combined Authorities (Mayoral Elections) Order 2017.  The Order (“the 2017 Order”) includes a requirement for candidates to give their home address in full in their nomination papers in circumstances where that address is subsequently published (“the requirement”).  Mr Jarvis did not wish to publish his address.  He has been the subject of death threats.  He considered that publication would endanger his life, or that of members of his family.  He sought judicial review of the requirement and of the Returning Officer’s decision that Mr Jarvis had to abide by the requirement. Read more »

 

Local Government Election Court

June 23rd, 2017 by James Goudie QC in Elections and Bylaws, Social Care

In R (Rahman) v Local Government Election Court (2017) EWHC 1413 (Admin) a Divisional Court (Lloyd Jones LJ and Supperstone J) refused the Applicant’s application to amend the grounds of his application for judicial review of a decision of the Local Government Election Court which found the Applicant personally guilty and guilty by his agents of a number of electoral offences under the Representation of the People Act 1983 (“the 1983 Act”). The findings of the Election Court had the effect of automatically disqualifying the Applicant from holding elected office until 23 April 2020. Read more »

 

Bylaw Validity

January 31st, 2017 by James Goudie QC in Elections and Bylaws

The issue in the unsuccessful appeal by way of case stated in Akerman v Richmond LBC (2017) EWHC 84 (Admin) was as to the validity of bylaws made by the Council under Section 235 of the Local Government Act 1972 making it a criminal offence to moor a boat against specified land for longer than a maximum period specified.  The appellant contended that the bylaw is unlawful at common law because it was made for an improper purpose and was irrational. It was submitted on his behalf that the material generated by the consultation process showed that the basis for making the bylaw was anti-social behaviour but the bylaw did not address such behaviour and was such an excessive response to the evidence of that behaviour that it was ultra vires at common law. It was also submitted that making the bylaw was a disproportionate infringement of his rights under Article 8 of the ECHR.
The questions the district judge stated for the Divisional Court were:- Read more »

 

Election Petition

January 30th, 2017 by James Goudie QC in Elections and Bylaws

The Court hearing an Election Petition should not hypothesize as to how people might vote. A psychological approach is not appropriate. The foregoing was reaffirmed in Richards v Devenish (2017) EWHC 37 (QB).

 

Revocation of bylaws

October 24th, 2016 by James Goudie QC in Elections and Bylaws

DCLG have issued Model Revocation Byelaws and Guidance thereon.

 

 

Byelaws

December 21st, 2015 by James Goudie QC in Elections and Bylaws

R (Barda) v Mayor of London (2015) EWHC 3584 (Admin) concerned Byelaws made by the Greater London Authority with respect to erecting and maintaining fencing around Parliament Square Garden (“PSG”), and their compatibility with Article 10 (freedom of expression) and Article 11 (freedom of association) of the European Convention of Human Rights.

Garnham J said, at paragraphs 90 and 91, that it follows from the authorities that place, manner and form of assembly and expression of views may be important in determining whether there has been an infringement. However, they are not necessarily so. The caselaw is certainly not authority for the proposition that a protester’s choice of place and form must always be respected. The authorities responsible for PSG must not always accommodate a protest in precisely the form the protester prefers.  The Court must take account of the form, place and mode of the protest along with all the surrounding circumstances in deciding whether the actions of the State constitute a real interference with the exercise of the rights.

The Judge found that there was an interference. The question therefore was whether that interference was justified.

The scope of the GLA’s powers to manage and regulate PSG was broad. Those powers were more than sufficient to permit the erection of fences as a means of managing and regulating the use of PSG.  The interference also pursued a legitimate aim. The fact that the aims changed over time and sometimes covered more than one objective was nothing to the point. The care and maintenance of the physical space, the prevention of disorder, the protection of the rights of others (both those who also wanted to protest and those who simply wanted to enjoy the amenity of the gardens) are all legitimate aims. Those were genuine aims of the GLA at various points during the history.  All of that meant that the critical question was whether the interference was proportionate.

The burden of proof of justification was on the Defendant. This was not a Wednesbury challenge where a degree of deference was due to the decision maker. The Court has to put itself in the position of the GLA at each material stage and ask whether the GLA have satisfied the Court that their response was proportionate given what they knew at the time. It would not be correct to take into account what has become known since the decision being considered, but which could not have been known at the time.

The Judge addressed five issues that were relevant to justification: first, the extent of the interference; second, prior restraint; third, prior authorisation; fourth statutory sanctions and controls; and fifth public liability insurance.

As to the first, although there was an interference, it was far from total. There was some interference with rights of expression and assembly, but that interference was limited.

As to the second, the fencing did amount to a form of prior restraint. However, this was partial restraint.

Third, it is not a breach of Articles 10 or 11 to require prior authorisation for demonstrations or protests.

At paragraph 107, Garnham J said:-

“Those organising demonstrations, “as actors in the democratic process”, should respect the rules governing conduct of demonstrations by complying with the regulations in force. A failure to do so demonstrates a disregard of the rights and freedoms of others and of the need to manage those competing rights sensibly if they are to be enjoyed to the greatest extent possible. Of course the Convention imposes obligations on contracting states not individuals, but if the individual does not play his part a greater latitude must be allowed to the state in the way it responds.”

At paragraph 108, Garnham J said:-

“Failure to obtain authorisation will not negate the rights under Articles 10 and 11. However, in my judgment, it will be relevant in judging the proportionality of the State’s response.”

As to the fourth point, statutory sanctions, the Judge said that the corollary of the State’s entitlement to require prior authorisation was the right of the State to impose sanctions if that authorisation is not obtained. Sanctions were not limited to those provided by the Police Reform and Social Responsibility Act 2011.  That Act does not establish an exclusive scheme for responding to demonstrations in PPSG. The power for the GLA to make Byelaws governing the management and regulation of PSG remains. The Judge also made observations in relation to public liability insurance; and concluded that justification was established.  He said:-

“123.     In my judgment, of central significance in this case was the measured and graduated approach adopted by GLA to the threats of periodic occupation of PSG. Alternative responses, including polite requests, then removals, then arrest and prosecution of individual protesters, were tried without success. The Square was roped off, then part of it was fenced off, then most of it was fenced off. When the likelihood of occupation diminished then the fencing came down.

  1. The response waxed as the threat to the Square increased and waned as it subsided. In my judgment, it was the very definition of a proportionate response.”