North West Leicestershire District Council leader Conservative Richard Blunt is facing High Court action from a defeated opponent over whether or not he was actually qualified to stand.
Blunt appears to have qualified to stand under the provision that he owned property in the area. However the wording of the law is unclear, talking about “occupying as owner” with the possible implication that therefore you also have to actually be living or otherwise have use of the property. In Blunt’s case, though, the property was rented out to others – leading the defeated independent candidate Colin Roberts to argue that he therefore was not qualified to stand as he was not occupying it.
This point of law has been interpreted in different ways by different councils over the years. Some council lawyers have taken the view that the use of “occupying” in reference to owning property means that simply owning property is not enough. Instead you must in some ways actually occupy it, either by living there or scenarios such as using it solely for your own business purposes without other people living there.
However, other council lawyers have taken a different view, which is that such an interpretation would mean this ground for qualifying as a local election candidate is substantively no different from other grounds. If you have to live somewhere to qualify under the ownership provision, for example, then it makes it no different from the other qualification option of living there anyway. Therefore, so this legal argument goes, it is the wrong interpretation of the law as it reduces the different qualifications to duplicating each other. Moreover, case law in other areas points to “occupy” meaning something wider than residence.
The case may also raise questions over the Electoral Commission’s role because the Commission has been aware of the conflicting interpretations of the law since at least 2008, when I raised it with them after two separate incidents (one in London and one in Wales) in which Liberal Democrat candidates were nearly blocked from standing.
I pushed the Electoral Commission in both 2008 and 2009 either to come to a clear view on how the law should be interpreted, and then give a clear steer to Returning Officers along that line, or if it decided the law was not clear to request a change in the law from the government. At the time the Commission decided to do neither and instead reworded its guidance to hedge on the issue (as can be seen from the latest English guidance which uses phrases such as sub-letting “will point against you having ‘occupied’ it” rather than providing a clear view of the law).
A court ruling may provide future candidates with the clarity the Electoral Commission decided not to seek.
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Hywel
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20 Comments
It’s this sort of area which demonstrates why the electoral commission needs to be able to issue legally binding guidance on electoral law.
What we have now in several areas is unclear legislation on which guidance is issued which doesn’t actually have any legal force. Really that just confuses the situation still further.
“If you have to live somewhere to qualify under the ownership provision, for example, then it makes it no different from the other qualification option of living there anyway.”
Obviously you can be the occupier of a property without living there. That would be the case for a holiday home, for example.
In any case, “occupying as owner” applies to land as well as other kinds of property, doesn’t it? It doesn’t mean you have to be living on the land in a tent!
It is worth bearing in mind that the phrase in question has been used in election law since (at least) 1832, so if there were any real ambiguity in its meaning we could be sure it would have been fully explored by now.
The wording is “occupying as owner or tenant,” not “owning or occupying as tenant.” It would never have crossed my mind that the owner of property could claim to be occupying it, when he was letting it to a tenant.
I am sorry Hywel. I agree with you in principle that it would be great if the Electoral Omission had the talent/experience/judgement to give advice on any of these issues. The reality is that you would probably get more sense from the Federation of Master Butchers.
What is this idea of ‘councils interpreting it differently’? it does not matter what any council officers thinks. The law is the law. Anyone in any doubt needs a barrister’s opinion, not a council officer’s. I’m with Chris on this one. The law seems pretty obvious regarding the word ‘occupy’. It would not be there unless it meant something.
Tony: the council officers giving conflicting opinions were lawyers or had asked lawyers for a view, and other lawyers I consulted at the time working for the party also had conflicting views of how the law should be interpreted. (I’ve simplified the arguments somewhat in the post, by the way.)
The difficulty in practice a candidate faces is that if a Returning Officer says they are going to reject a nomination paper because of their view of the law, the only legal recourse a candidate has is expensive. So in practice in these situations, what a Returning Officer says goes, at least as far as that particular election is concerned.
The Brent case is the nearest precedent. After the 1974 local elections, the defeated Labour candidate in Sudbury ward challenged the election of Reg Sheppard on grounds that Sheppard was not qualified. He had lived previously in his ward but had moved out (to Harrow); on his nomination paper Sheppard gave as his ‘home address’ a house in Brent which was that of his agent. The petitioner established that this was fraudulent.
Sheppard attempted to side-step this judgment by contending that, as his nomination paper was accepted as valid by the Returning Officer, it ought not to be attacked subsequently. The High Court was unimpressed by that one.
“The law is the law. Anyone in any doubt needs a barrister’s opinion, not a council officer’s”
The opinion of anyone – no matter how learned – doesn’t change the law or make an unclear provision clear. The convicted MPs all had (or said they had) eminent legal advice that they were entitled to the defence of parliamentary privilege.
Your point about the current quality of information from the Electoral Commission is valid.
“It is worth bearing in mind that the phrase in question has been used in election law since (at least) 1832, so if there were any real ambiguity in its meaning we could be sure it would have been fully explored by now.”
” the council officers giving conflicting opinions were lawyers or had asked lawyers for a view, and other lawyers I consulted at the time working for the party also had conflicting views of how the law should be interpreted.”
Mark, I have yet to meet a ‘good’ lawyer working at a high level in a local authority. Many of them end up regularly costing their councils hundreds of thousands of pounds, especially with their HR advice, and they are very good at covering their tracks and getting huge pay-offs. Lib Dem ‘internal’ lawyers do not seem to have a particularly good track record either. TPS and ‘zipping’ come to mind. If you want quality advice, you go for a good external barrister. And you read what (s)he has to say carefully. ‘advice’ is just that, advice. When I won my Judicial Review I had to challenge my barrister several times before we went into court.
I think you have the issue ‘back to front’. A returning officer receives the nomination form and cannot reject it if it is ‘in order’ ie the relevant boxes are ticked and signed. Only a later challenge in a court can reverse such a process, whether the ‘wrong’(sic) candidate gets elected or not. The charge would be ‘making a fraudulent declaration’. The case cited by David Boothrotyd is a case in point.
I had the same issue when Phil Woolas’ agent tried two ludicrous challenges to my nomination, both completely invalid, in Oldham in 2005. The returning officer pointed out to Mr Woolas’ agent that even if he (Fitzpatrick) were right, he (the returning officer) could not reject the nomination because it was properly submitted. (one of the issues was my right to use my name, Tony, on the ballot paper). Still a canny piece of PR action by Woolas & co because it hit the papers (in their pocket at the time) and mud sticks. 🙁
” The convicted MPs all had (or said they had) eminent legal advice that they were entitled to the defence of parliamentary privilege.”
The latter I think. More like straw-clutching by drowning men with a bit of dosh to throw around in desperation. And don’t forget the Tory peer who was in this with them!
Similarly, I found most of the legal arguments deployed by Woolas’ team in the electoral court to be ridiculous. Think of all the poor (sic) Labour members who contributed to their pay-packets for these efforts! 🙂 But then I also thought that the two original HCJs in the Woolas Court made far more sense than the three who heard his appeal, who seemed somewhat (how can I put this politely?) detached from electoral reality .
Indeed one of the aspects of law established by the Brent case (R v Election Court ex parte Sheppard, if anyone’s looking it up) was that the duty of the Returning Officer on receiving a nomination paper was only to check that it was valid in form. So the RO must check that every piece of information that has to be given is given, and that all the signatures are legitimate. They may not check that the rest of the information is correct.
The only case of a superficially valid nomination paper not actually being accepted was in 1983 when the Barnet RO refused to accept the nomination of Mr Margaret Thatcher (né Colin Hanoman) as an abuse of process. This was probably procedurally questionable but in the circumstances Mr Thatcher/Hanoman was unable to persuade the courts to give him any relief.
David: I think you’re taking too narrow a legalistic view of what happens when candidates stand and, for example, someone asks the Returning Officer what the rules are for being qualified to stand, explaining their own circumstances and the Returning Officer (perhaps trying to be helpful) provides an answer. Such conversations are a regular occurrence in my experience (often of trying to deal with the fallout from someone being given what sounds like duff advice!). Less common, but not unknown, are the cases where deliberately or inadvertently, the RO can end up pressurising people with comments such as “but of course in such a case it would be up to the police and then the courts to decide…”
Chris: the idea that the law in an area is clear and settled because it’s been around for a long time would have a radical impact on quite a few areas… and certainly isn’t the view of lawyers who have argued it out in this area (though, so far, not in helpful test case that would help settle the law’s meaning). Indeed, it’s the number of test cases that is much more relevant than the number of years a law has been around.
“someone asks the Returning Officer what the rules are for being qualified to stand, explaining their own circumstances and the Returning Officer (perhaps trying to be helpful) provides an answer.”
Mark, this wrong practice does indeed happen, regularly, because it is encouraged by many foolish Local Parties.
A returning officer has no more useful or valid a view on the electoral law relating to candidates than has the town hall cleaner. Either before, during or after an election. Yet many people still think they should report (alleged) breaches of electoral law by candidates to him/her rather than to the police/CPS. Why? Because the political parties pass on this verbal folklore that returning officers have some relevance in this process. Can’t we stop it? Returning officers have a job to do in an election. It is just as (more?) likely that a candidate would have a legal complaint about the conduct of the returning officer as vice versa.
Everything you do in life can theoretically be done ‘illegally’ and be ‘down to the police/courts at the end of the day’ in theory. Elections conduct is no different. Nobody should be worried about this if they are acting in good faith.
What worries me more is why would any sensible political party encourage anyone who might vaguely be near the ‘edge’ of this ‘owner occupier’ definition (and with no other qualification) to stand as a councillor.
The word ‘occupy’ is defined in UK law, for residential property in Silvers v Southwark LBC 1977 as ‘live in’, although the definition for commercial property would presumably be different. The word ‘occupy’ does not seem too difficult to define for most dictionaries. Obviously it involves regular unfettered use. The word ‘as owner’ presumably means as freeholder or on a ‘long lease’?
If Parliament wants a clearer law, then it should make one. But PLEASE do not leave it to the Electoral Omission and ‘guidance'(sic).
“The word ‘occupy’ does not seem too difficult to define for most dictionaries. Obviously it involves regular unfettered use.”
Not part of a definition that I’m aware of. Even a legal tenancy or freehold may not involve unfettered use.
My Schofield says (without citation) land includes any interest in land or any easement or right. Owner need not be one within the meaning of s105 of the Law of Property Act. So despite Tony saying that the law seems clear and then qualifying it with a presumably the situation is not as clear as suggested.
Also this legislation has been around for some time but the definition of tenant has changed over that time. On the law as written someone with a licence to occupy property wouldn’t qualify
This discussion is mind-boggling.
How far do you think Mr Blunt’s tenant would get if he tried to avoid paying council tax on the basis that he wasn’t the legal occupier of this property?
It is clear that the word “occupier” now needs clarification. I will try to remember this the next time we get an election bill!
I don’t think it’s the job of the EC to state what the law is. They are in my view fairly incompetent bureaucrats; in any case it’s their job to carry out the law not to define it.
Nor is it the job of the RO to define the law – nor has he any power to reject a nomination paper that is superficially filled in correctly – ie appropriate number of nominees who are qualified to nominate. He certainly can’t go round to a property to assess the level of “occupation”.
Tony Greaves
Chris – Council Tax is assessed on a different basis to occupation though.
When I rented a shared property many years ago the landlord was responsible for paying the Council tax although was not in occupation in the everyday sense.
Hywel
“Council Tax is assessed on a different basis to occupation though.”
Generally it is, but premises in multiple occupancy are one of the specified exceptions, for which the council tax is paid by the owner rather than the occupier.
If the property is simply let to a tenant, then the occupier is responsible for paying council tax.
I have not always been impressed by the quality of returning officers I have dealt with. The sensible practice would seem to me for the returning officer just to check the forms are filled in correctly. If there is an obvious falseness, sure the Returning Officer can advise, and perhaps has a duty to inform the police if s/he thinks fraud is being committed, but as has already been put, it is not the duty of the Returning Officer to define the law.
If the mere ownership of property is considered sufficient qualification, then it is open to abuse as anyone with the wealth to buy up and let out property could then stand anywhere. Indeed, one might set up schemes whereby square inches of property are sold out to potential candidates, who could perhaps “occupy” it in some token way (e.g put a brass plate on it). I think it clear that the intention of the law is to word it so that you have to live in the place to qualify. The alternative qualification of working there is also capable of abuse, and I have seen it abused.
“I think it clear that the intention of the law is to word it so that you have to live in the place to qualify.”
In that case wouldn’t Parliament have said so? Eg using the term residence which is the case for electoral registration (though that is another can of worms!).
The act says “any land or premises” so drawing a distinction between the two eg business premises or agricultural land would be sufficient qualification.
Hywel: Remember of course also that there is a separate qualification under which people can stand by virtue of having “lived” in the area. So there is a very strong legal argument that the property qualification should be interpreted in a way different from that, as Parliament’s intention would have been for the two to mean different things else both would not be in statute.