Declaring the wrong person the winner of a council election causes a rule breach and means the democratic process ‘has not been properly and lawfully concluded’, the High Court has found.

The ruling in Julie Green v Patricia Josephine Hannah-Wood & Anor said it would be a ‘troubling anomaly’ if the effect of the resignation of an incorrectly declared council member were ‘to frustrate the true and proper purpose of the petition’.

The case centred on a parish council election at Nelson, Lancashire. Julie Green, standing for the Conservative party, won with 242 votes while Labour's Patricia Hannah-Wood received 177.

The returning officer incorrectly declared that Hannah-Wood had been elected.

The error arose as a result of how the votes were recorded. On the ballot paper Green’s name appeared first and Hannah-Wood’s name second. The count supervisor wrote the figures on a blank sheet of paper and recorded first the vote for Labour and then the vote for the Conservatives with no names.

The results were transposed on to the declaration of result of poll which, like the ballot paper, gave Green’s name first and Hannah-Wood’s second. The results were entered in the same order in which they appeared on the piece of paper and declared in accordance with the declaration of result of poll.

The returning officer was informed of the error by the count supervisor. Legal advice, which was ‘almost immediately’ taken, was that the returning officer could not change what she had announced.

Hannah-Wood later resigned as councillor. The judgment said if it were not for the resignation the ‘clear’ outcome would be that Hannah-Wood was not duly elected and Green was.

Mrs Justice Jefford, sitting with Mr Justice Soole, said the argument between ‘elected’ and ‘duly elected’ was ‘no more than semantic and meaningless’.

She added: ‘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. If a person has not been duly elected, that person cannot lawfully accept that office or resign from that office.

‘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.’

The judgment found a person declared elected can act as a councillor until it is determined that the person has not been duly elected, and until the election court has determined the petition the process is suspended.

Soole added: ‘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.’

The councillor positon for Marsden West ward is still vacant, according to Nelson Town Council’s website.

 

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