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.

124. 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.”

The two issues raised by the Local Government Election Petition in Baxter v Fear [2015] EWHC 3136 (QB) were described by the Court as “important and novel”.  The Petition concerned the Kinson South Ward of Bournemouth Borough Council.  The problems arose owing to a printing error.  “Books” or batches of ballot papers were printed and assembled in advance of election day. Whilst the cover of the Kinson South ballot books showed the correct information for that Ward, the ballot papers inside were for Kinson North; and vice-versa.  This problem affected each of the nine polling stations in both Wards.  Once the problem was identified prompt steps were taken to address it.  By mid-morning all polling stations in Kinson North and Kinson South had been issued with the correct ballot papers.  By then some electors provided with the wrong ballot papers had placed them in a Kinson South ballot box.  Some, but not all, of these returned later, and completed correct ballot papers. The total number of electors affected in one way or the other by the ballot paper error to the extent that they were effectively disenfranchised was 115.

The first issue arose under Section 48(1) (b) of the Representation of the People Act 1983.  No local government election shall be declared invalid by reason of any act or omission of the Returning Officer if it appears that the act or omission did not affect the result.  In a three member ward the gap between the second and third candidates who had been elected and the petitioner was less than 115.  It was unlikely however that the 115 affected electors would have voted in such a way as to lift the petitioner to third place.

The first issue was whether a statistical or psephological approach was appropriate, whether it was permissible for the Court to undertake an inferential analysis of how disenfranchised voters would or might have voted.  There was no decided authority which directly answered the question.  The Court answered it in the negative.  Jay J, with whom Wilkie J agreed, said:-

“27. … By enacting section 48 of the 1983 Act, Parliament cannot be treated as somehow empowering the judicial arm of Government to peer into the voting booth, whether by drawing informed, probabilistic inferences or otherwise.

28. This conclusion supports the delicate constitutional balance which clearly exists in this domain, and achieves practical and legal certainty. … there would in principle be no constraint on the type of evidence the court might receive: e.g. psephological (on a micro or macro level), geographical and behavioural.  In my view, it seems obvious that Parliament could not have intended to mandate such a potentially far-reaching, penetrating and invidious level of inquiry by the judiciary.”

“31. There are many situations where courts are prepared to draw inferences from evidence of a statistical nature, … However, in those domains the policy considerations are rather different, not least because no quasi-constitutional issues arise. … Voting behaviour can be extremely unpredictable across a Ward, and may depend on factors about which it is difficult to be precise. Ultimately, the policy of section 48(1) is that an investigation of likely voting behaviour is tantamount to an exercise in pure speculation, and must be avoided.

32. This Petition must succeed on the basis that it appears to the Court that the acts and omissions for which the Fourth Respondent is responsible, effectively disenfranchising 115 electors, affected the result of the election of the Second and Third Respondents.”

The second issue was whether the ballots of the returning electors should have been included.  The legal backdrop to this issue was the relevant provisions of the Local Elections (Principal Areas) (England and Wales) Rules 2006 [2006 S.I. No. 3304] (“LEPAR”), in particular Rules 15, 16, 33 and 35 of Schedule 3. LEPAR contains a specific and detailed set of mandatory rules governing the method of poll, the form of the ballot paper, the questions to be put to voters, and the voting procedure. A number of the breaches of LEPAR were perpetrated by the Returning Officer, comprising issuing an erroneous or invalid ballot paper to 76 electors, failing to issue a ballot paper to the 160 electors who applied to vote during the interregnum, and issuing the 56 returning electors with a second ballot paper.  The first two of these were common ground.  It was the third that needed to be addressed.  The Court held that the second ballot papers should not have been issued. Jay J said:-

“44.  … LEPAR contains no mechanism for correcting errors once the ballot paper has been folded and placed into the ballot box. This is treated by the rules as a legally irrevocable act – at least until the poll closes and the ballots are scrutinised.

45. … there is no provision in LEPAR for errors of any sort to be corrected by the delivery of a second ballot paper to the voter. Indeed, the tenor of Rules 33(l)(b) and 35(l)(c) is to the contrary effect, because these provisions are predicated on there being one vote, not two. …

46. The upshot is that LEPAR, properly construed and applied, leaves no room for discretionary decision-making by returning officers, let alone for “self-help” remedies which entail ascertaining who has voted incorrectly, and then making contact with them. However well-intentioned, what happened here had the tendency to undermine rather than to safeguard the integrity and secrecy of the whole voting process: the philosophy of LEPAR is to regulate and constrain contact between presiding officers (or their agents) and voters, and to postpone dealing with errors and irregularities until after the closing of the polls.

47. … the consequence … is that voters only had one bite at the metaphorical cherry in circumstances where they could have no responsibility for the initial printing error. …”

The draft Byelaws (Alternative Procedure) (England) Regulations 2015, subject to affirmative Resolution by each House of Parliament, and superseding an earlier (March 2015) draft, prescribe classes of byelaws to which Section 236 of the Local Government Act 1972 (“the Act”) does not apply and make provision about the procedure (“the alternative procedure”) for the making, coming into force and revocation of such byelaws. In particular the alternative procedure removes the requirement that byelaws must be confirmed by the Secretary of State (“the SoS”).

Regulation 3 prescribes the classes of byelaws to which Section 236 of the Act does not apply. Each class of byelaws is numbered and described in an entry in column 1 of the Table in Schedule 1 to the Regulations, made under the enactment and section in the corresponding entries in columns 2 and 3 respectively and by an authority of a description specified in the corresponding entry in column 4.

Regulation 4 provides that the alternative procedure specified in Regulations 5 to 12 applies only to the classes of byelaws prescribed by Regulation 3 made on or after the date the Regulations come into force. Regulation 4 also excludes certain requirements specified in the alternative procedure where the byelaw being made has no other purpose than to revoke another byelaw.

Regulations 5 to 12 specify the alternative procedure for the making and coming into force of byelaws.

Regulations 13-17 specify the alternative procedure for the revocation of byelaws of a class prescribed by Regulation 3.

Regulation 18 makes provision for amendments to enactments consequential on the making of these Regulations. The amendments are set out in Schedule 2. Regulation 19 provides for Section 236 of the Act to continue to apply in relation to byelaws of a class prescribed by Regulation 3 made before the coming into force of these Regulations. The effect is that such byelaws do not come into force unless confirmed by the SoS.

The main elements of the Wales Bill announced in the Queen’s Speech include transferring powers to the National Assembly over local government elections in Wales, including enabling the Assembly to decide whether 16 and 17 year olds should vote in those elections.

As is well known, Strasbourg case law establishes that a general and automatic prohibition that bars convicted prisoners from participating in general elections will contravene Article 3 of Protocol 1 to the ECHR (“A3P1”).  In Moohan v The Lord Advocate [2014] UKSC 67 the Supreme Court held (by a majority) that such a bar is not prohibited in the case of a referendum.  On the Supreme Court’s approach it is also the case that such a bar is not prohibited in the case of local elections, but is confined to elections to the legislature.  Lord Hodge said, at para 8, that the language of A3P1 does “not support a wider view that A3P1 was intended to cover any major political decision which was put to a popular vote, however important that decision might be”.  The Supreme Court applied the Strasbourg decision in McLean v UK which held that local authorities in the UK are not part of the legislature and that A3P1 did not apply to elections to them.

The draft Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2014 (“the 2014 Regulations”) amend the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2007, SI 2007/1024 (“the 2007 Regulations”).  The 2014 Regulations make changes to the rules governing the conduct of local Mayoral Elections in England and Wales.  In doing so they apply or copy electoral conduct provisions in the Electoral Registration and Administration Act 2013 (“the ERA Act”) and associated secondary legislation for the purposes of those elections.  Many of the provisions in the 2014 Regulations replicate, for Mayoral Elections, amendments that have been made to the conduct of UK Parliamentary elections by the ERA Act or that will be made by the draft Representation of the People (England and Wales) (Description of Electoral Registers and Amendment) Regulations 2013 (the “draft 2013 Regulations”).

The 2014 Regulations are part of a wider package of Regulations and Statutory Instruments which make various changes to the rules for conducting elections and referendums and include the draft 2013 Regulations, the European Parliamentary Elections (Amendment) Regulations 2013 (S.I. 2013/2876) and the draft Neighbourhood Planning (Referendums) (Amendment) Regulations 2014.

The 2014 Regulations revoke the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2012 (S.I. 2012/2059) and the amendments made to the 2007 Regulations by those Regulations.

The changes are being made now, in conjunction with changes to other electoral legislation, so they can have effect at polls that take place on 22 May 2014 and thereafter.

 The 2014 Regulations make the following changes to the 2007 Regulations:

• •  Changing the timetable for proceedings at the Election so that deadlines are consistent with other elections, facilitating the early despatch of postal votes when elections are combined. In particular, the deadlines for candidates’ nominations and withdrawals become 4pm on the nineteenth day before polling day, and the deadline for the publication of the statement of persons nominated becomes 4pm on the eighteenth day before polling day.
• •  Enabling Police Community Support Officers to enter polling stations and counting venues under the same conditions as police constables in England and Wales.
• •  Providing that voters waiting in a queue at the close of poll (i.e. at 10pm on polling day) for the purpose of voting may be issued with a ballot paper, and that those in the queue for the purpose of returning a postal ballot paper or voting statement may return it.
• •  Updating voting forms for accessibility reasons. The 2014 Regulations also make amendments to the provisions on consent to nomination and the interpretation provisions.
• •  In addition, changes made by the draft 2013 Regulations relating to postal and proxy voting will apply to Mayoral Elections.

The period just before local authority Elections when there are restrictions on publicity is defined as beginning with the last date for publication of Notice of the Election.  In 2013 that date is Tuesday 26 March.  The restrictions apply from then.

Authorities must have regard to the “Code of Recommended Practice on Local Authority Publicity”, issued under Section 4 of the Local Government Act 1986, revised in 2011, and available on the CLG website. Paragraphs 33-35 inclusive (Care during periods of heightened sensitivity) are of particular relevance. They provide:-

“33.     Local authorities should pay particular regard to the legislation governing publicity during the period of heightened sensitivity before elections … It may be necessary to suspend the hosting of material produced by third parties, or to close public forums during this period to avoid breaching any legal restrictions.

34.       During the period between the notice of an election and the election itself, local authorities should not publish any publicity on controversial issues or report views or proposals in such a way that identifies them with any individual members or groups of members. Publicity relating to individuals involved directly in the election should not be published by local authorities during this period unless expressly authorised by or under statute. It is permissible for local authorities to publish factual information which identifies the names, wards and parties of candidates at elections.

35.       In general, local authorities should not issue any publicity which seeks to influence voters….”

Schedule 4 to the Representation of the People Act 1983, as amended, provides for the definition of the term “election expenses”.  It sets out matters that are to be considered “election expenses”.  It sets out a list of matters excluded from being “election expenses”.  The classification of an expense as an “election expense” has a number of regulatory consequences.  These include that, under Section 76 of the Act, candidates are subject to a limit on the amount that can be spent on “election expenses”.

Pursuant to a power in the Act, there is being made the Representation of the People (Election Expenses Exclusion) Order 2013.  This will amend the Act to exclude grant awards made by the Access to Elected Office Fund (“the Fund”) from the definition of “election expenses”. The Fund has been established by the Government Equalities Office to award financial support to disabled persons who will (or wish to) stand for elected office. In order to give full effect to the Fund policy, the Order amends existing provisions on “electoral expenses” which would otherwise cause difficulties for the proper operation of the Fund. This is because disabled and non-disabled candidates would otherwise not be treated equally as regards the incurring of expenses, in that disabled candidates who received monies from the Fund to remove or mitigate disability barriers would, amongst other things, have to count such expenditure against their election expenses limit. This would have the effect of reducing the amount they could spend on other electoral expenses. Whereas in contrast the non-disabled candidates would incur no such disability related expenses and so would benefit from the advantage of having the entirety of their election expenses limit to spend on other election expenses.

The Order exempts certain expenditure by or on behalf of disabled candidates from being considered “election expenses”. However in order to benefit from the exemption from being an “election expense” the expenditure must be designed to remove or reduce the barriers to seeking elected office faced by disabled candidates; an expense that arises as a consequence of the candidate’s particular disability; defrayed or reimbursed by a grant awarded from the Fund (however, if the expense is greater than amount of the grant provided by the Fund then the exemption only applies in relation to the amount of the expense that is covered by the Fund); in accordance with the terms and conditions of the grant made from the Fund.

The Order therefore provides that only matters of expenditure that a disabled candidate would face, but a non-disabled candidate would not face, are to be exempted from the definition of “election” expenses. Matters of expenditure that would be common to both disabled and non-disabled candidates, such as the normal printing of campaign leaflets for distribution to the public, would not fall within the scope of this exemption or within the scope of the Fund. However where a disabled candidate requires specially adapted transportation in order to participate in door-to-door campaigning on a level basis with a non-disabled candidate, then such an additional expense is likely to fall within the scope of the Fund and providing it satisfies the conditions set out above is likely to fall within the scope of this exemption.

The Order applies to all of the UK. However the Fund only applies to UK Parliamentary elections, local elections in England (except parish council elections), Greater London Authority elections, Mayoral elections in England and Police and Crime Commissioner elections in England and Wales.

The Fund, will distribute £2.3 million in grants from July 2012 to June 2014. The Fund is designed to meet the additional costs that a disabled person may face, such as extra transport costs or sign language interpreters, when seeking to stand for selection by a political party or election.

The Order refers to removing or mitigating “barriers” to elected office associated with a candidate’s disability.  The Electoral Commission has taken issue with this.  They believe that “barriers” is uncertain and will be difficult to interpret.  They are concerned that there is scope for the Fund administrator to make grant allocations for a far wider range of matters than was intended.  However, the Government’s view is that “barriers” means things that merely impede progress or success, as well as things that prohibit progress or success altogether. The term “barriers” is therefore the most appropriate for the Order. The fundamental difference appears to be that the  Commission would prefer the exemption to be defined by an exhaustive list for reasons of certainty. However, the Fund has been set up on the basis that it must be able to fund any potential expense that arises from the mitigation of a barrier to elected office that occurs because of the candidate’s disability. Consequently it is impossible to define the exemption in the terms of an exhaustive list. A non-exhaustive list of expenses it will pay for would equally be unsatisfactory, because it will necessarily not mention everything covered. Therefore in order to provide certainty the Government have sought to define the exemption through descriptive principles that, as required, exactly match the scope of the Fund.

Further, the Order as drafted has the effect of imposing the test that expenses are only exempted provided they are aimed at removing or reducing the impediments disabled candidates face when seeking elected office. There is a further requirement that the impediments must directly result from a candidate’s disability.

Even if the “barriers” test is met, the Order also requires that for any spending to be exempt, it must be in line with the Fund’s terms and conditions. The Commission is not convinced that the terms and conditions are fit for purpose as currently drafted, believing they cannot be relied on to accurately define what is and is not exempt from spending limits. However, the Government does not agree that it is the terms and  conditions that define the exemption, as this is done by the text of the Order. The reference to terms and conditions in the exemption is so as to ensure an individual who fraudulently obtains funding does not benefit from the exemption. In practice the terms and conditions are likely to help provide practical guidance, but it remains the case that the definition of the exemption is the wording set out in the Order.

The Local Government Byelaws (Wales) Act 2012 (anaw 2) reforms procedures for making byelaws in Wales, including removing a requirement for confirmation of byelaws by the Welsh Ministers; enables certain byelaws to be enforced by fixed penalty notices; requires authorities that make byelaws to have regard to any guidance given by the Welsh Ministers on procedure; and restates for Wales a general power to make byelaws.

QUEEN’S SPEECH

Bills already introduced pursuant to the Queen’s Speech on 9 May 2012 include Local Government Finance Bill and Electoral Registration and Administration Bill, both accompanied by Explanatory Notes, which in each case address ECHR compatibility.

LOCAL GOVERNMENT FINANCE

Most of the Local Government Finance Bill applies only in relation to England.

The Bill will introduce a rates retention scheme, enabling local authorities to retain a proportion of the business rates generated in their area.  The Secretary of State (“the SoS”) will be required to prepare a local government finance report each year, which sets out the central and local share percentages of non-domestic rates. It will also set out which payments are required to be made by billing authorities and major precepting authorities (“relevant authorities”) to the SoS, into the main non-domestic rating account, and which payments are required to be made by the SoS to relevant authorities, from the main non-domestic rating account. The SoS will also be required to establish a levy account and make regulations as to whether payments are required from any relevant authority. Payments may be made from the levy account for “safety net authorities” in accordance with regulations to be made by the SoS. The SoS may also make regulations as to transitional protection payments for authorities, to take account of transitional relief. Billing authorities will also be required to make payments to major precepting authorities, under regulations to be made by the SoS.  A number of relevant authorities may also be designated as a pool of authorities, which will then be treated for most purposes of the new provisions as a single authority. The SoS may designate certain areas of England and provide through regulations that a proportion of the rates are to be retained by billing authorities in those areas. Similarly, the SoS may also designate certain classes of hereditament and provide that rates are to be retained by billing authorities whose area includes the designated class.

The Bill also contains provisions, in the context of abolition of council tax benefit, with respect to council tax and council tax reduction schemes and discounts.  The Bill includes powers for the SoS to make requirements about the schemes which local authorities must make by 31 January 2013 relating to the financial year beginning on 1 April 2013. A scheme must set out the classes of person who are entitled to a reduction, the reductions which are to apply to those classes and the procedure by which a person may apply for a reduction. The SoS has power to prescribe classes of persons which must be included in a scheme and the reductions which must apply to them.  A billing authority must consult before making a scheme and each financial year it must consider whether to revise or to replace its scheme. The SoS has power to make provision for the procedure for preparing a scheme or a revision to a scheme.

ELECTIONS

The Electoral Registration and Administration Bill extends to both England and Wales.

Part 1 of the Bill relates to Individual Electoral Registration.  The provisions will require that each elector must apply individually to be registered to vote after the transition to the new system; make transitional arrangements over two years, including using data matching to verify entries, and providing for the ‘carry forward’ of electors who are not automatically verified and fail to register under the new system in the first year, so that they remain on the first register published under the new system (likely to be the register used for the 2015 general election); create a legislative framework to allow alternative channels for registration, such as online registration, to be offered; provide for the use of data matching to verify applications, check existing entries in registers and find individuals who do not currently appear on the register; make provision for an annual canvass which is compatible with the new registration system and provide a power to amend or abolish the annual canvass in future, subject to a report by the Electoral Commission and an order requiring the approval by a resolution of each House of Parliament; ensure that all those wishing to vote by post or proxy will need to be registered under the new registration system to utilise these voting methods after the first annual canvass under the new system; and introduce a civil penalty for those who fail to make an application when required to do so by an Electoral Registration Officer (“ERO”).

The Bill also includes provisions in Part 2 in relation to the administration and conduct of elections.  The clauses relating to the administration and conduct of elections include provisions to allow Police Community Support Officers to enter polling stations (as police constables can currently); to remove the automatic postponement of parish and community council elections in England and Wales that currently occurs when a Parliamentary or European Parliamentary general election falls on the ordinary day for local government elections; to enable regulations to be made to place EROs under a duty to give notifications about rejected postal votes, and specify the circumstances where this duty arises; and to provide that the SoS may, upon a recommendation from the Electoral Commission, withhold or reduce a Returning Officer’s fee for reasons of poor performance.