Dear Mr. Tichborne,
I draw your attention to Section 27(1) of the Representation of the People Act 1983 which provides that “the office of returning officer is a distinct office from that by virtue of which he becomes returning officer”. The meaning and effect of this provision is set out in the following extract from Electoral Commission Guidance:
“The duties of the (Acting) Returning Officer are separate from their duties as a local government officer. This follows from Section 27(1) of the RPA 1983, which has the effect of making the office of (Acting) Returning Officer totally distinct from the office by virtue of which they have become (Acting) Returning Officer.”
Accordingly, Local Authority Members cannot give instructions to the Returning Officer in connection with the performance of his duties and it would be improper for them to seek to do so.
One of the responsibilities of the Returning Officer is to maintain the integrity of the election. In fact, it is a performance standard set by the Electoral Commission. This means that the Returning Officer has to ensure that links have been developed with the local Police/single point of contact (SPOC) to enable any concerns around electoral malpractice to be referred. Accordingly, if it appears to the Returning Officer that election law regarding the publication of election material has been contravened, then he is required to pass the matter to the Police. Of course, the Returning Officer does not have exclusivity in terms of making such referrals. So, if a candidate, an elector or other member of the public believes that a contravention of election law has taken place, then they can equally refer the matter to the Police. The responsibility for undertaking any investigation into the alleged contravention rests with the Police.
Regarding the Brunswick Park Ward by-election leaflet, the issue was that information the local authority would not publish because it would contravene the code of recommended practice on local authority publicity was seemingly published by a political party. Whilst this was, of course, highly undesirable and the Returning Officer took immediate and successful action to have the further dissemination of the publication in question stopped, no contravention of either election or general law took place since the local authority had neither published nor facilitated the publication of this material.
If you have any doubt or require further clarification on the legal position as set out in this e-mail, you may wish to consult the Electoral Commission.
I am copying my e-mail to the Returning Officer.
Yours sincerely,
Jeff Lustig
Director of Corporate GovernanceLondon Borough of Barnet, North London Business Park, Oakleigh Road South, London N11 1NP
Director of Corporate GovernanceLondon Borough of Barnet, North London Business Park, Oakleigh Road South, London N11 1NP
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Mr Lustig says “…if it appears to the Returning Officer that election law regarding the publication of election material has been contravened, then he is required to pass the matter to the Police.”
ReplyDeleteReally? He is required to report it? Where in the Act does it force the Returning Officer to report the matter to Police rather than use his judgement?
Mr Lustig’s remarks regarding the Brunswick Park leaflet are, at best, disingenuous and, at worst, downright lies. This was not a case of a political party releasing information early for electoral gain because the Cabinet Member responsible made public statements at the time confirming that no decision had been taken about the car parks. Therefore the leaflets contained deliberate untruths. Publishing an election leaflet that you know to be false is an offence.
If "..the duties of the (Acting) Returning Officer are separate from their duties as a local government officer..." is the case, why is a local government officer writing in defence of the Returning Officer?
ReplyDeleteDavid,
ReplyDeleteI have to say I agree with your analysis. Nothing so far in this whole tawdry affair has so far given me any reason to have any confidence in the process.
May I ask if this item has replaced this week's Friday Joke?
ReplyDeleteIf the Police catch you committing a criminal offence, they have the discretion to send you on your way with a metaphorical clip around the ear if they consider the matter to be trivial and not worthy of the time and expense of prosecution. Are we really supposed to believe that Nick Walkley had no similar right of discretion when it came to a minor infringement of election law, given that Helen Michael wasn’t even a candidate?
ReplyDeleteMr Lustig’s grasp of local government law has proven to be somewhat shaky in the past. Perhaps he is confused again?
Any lawyer of competence does not become a salaried minion in local government.
ReplyDelete