The Barnet Council Helen Michael Scandal - Jeff Lustig responds to the Barnet Eye

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

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