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Can an election result be challenged?
The result of an election may be questioned or challenged in certain circumstances, by an election petition.
The statutory framework
The result of a local government election can be challenged under the Representation of the People Act 1983 (the 1983 Act). The National Assembly for Wales (Representation of the People) Order 2007 (the 2007 Order) provides that the similar rules will apply to challenges to the result of an election to Senedd Cymru (with some modifications, as set out in Part 4 of the Order).
Information about some of the relevant rules is summarised below.
When you can make a challenge
Section 127 of the 1983 Act provides that a Welsh local government election may be questioned on the ground that the person whose election is questioned:
- was (at the time of the election) disqualified;
- was not duly elected; or
- on the ground that the election was avoided by corrupt or illegal practices provided by section 164 or 165 of the 1983 Act (general corruption and employing a corrupt agent).
The Local Elections (Parishes and Communities) (England and Wales) Rules 2006 and the Local Elections (Parishes and Communities ) (England and Wales) Rules 2006 also provide that where a returning officer decides that a nomination paper is invalid, that decision can be challenged as an election petition.
Article 86 of the 2007 Order provides that a Senedd election and a return to Senedd Cymru may be questioned by a petition complaining of an undue election or undue return.
Who can present a petition?
Section 128 of the 1983 Act provides that a petition may be presented either by four or more persons who voted at the election in question or had a right to vote in it (with the exception of persons who had an anonymous entry in the register of electors) or by a person alleging to have been a candidate at the election.
Article 87 of the 2007 Order provides that a Senedd election petition may be presented by:
- a person who voted as an elector at the election or who had a right so to vote;
- a person claiming to have had a right to be elected or returned at the election;
- a person alleging himself to have been a candidate at the election; or
- a person claiming to have had a right to be returned in an electoral region vacancy.
Form of petition
Section 128 of the 1983 Act and article 87 of the 2007 Order provide that the petition must be in the prescribed form, signed by the petitioner(s) and presented in the prescribed manner to the High Court.
The prescribed officer must send a copy of the petition to the proper officer of the local government body for which the election was held, and the prescribed officer shall send a copy of it to the returning officer of the Senedd constituency or electoral region to which the petition relates. The copy must be published in the area of that authority or the Senedd constituency or electoral region as relevant.
Section 129 of the 1983 Act provides that a petition questioning a local government election must be presented within 21 days after the day on which the election was held. Likewise, article 88 of the 2007 Order provides that a Senedd election petition must be presented within 21 days after the day on which the name of any member to whose election or return the petition relates has been returned to the Clerk or, as the case may be, notified to the Presiding Officer.
However, different timescales will apply in certain circumstances. These include, for example, if the petition is presented (a) on the ground of a corrupt practice (see further below), and (b) specifically alleges that a payment of money or other reward has been made or promised since the election by a candidate elected at the election, or on his account or with his or her knowledge so as to pursue or further that corrupt practice it may be presented at any time within 28 days after the date of the alleged payment or promise.
Likewise if the petition is presented (a) on the ground of an illegal practice (see below), and (b) specifically alleges a payment of money or other act made or done since the election by the candidate elected at the election, or by an agent of the candidate or with the knowledge of the candidate or his election agent, in pursuance or in furtherance of that illegal practice, it may also be presented at any time within 28 days after the date of that payment or act.
A petition questioning a local government or Senedd election will be tried by an election court which has the same powers, jurisdiction and authority as a judge of the High Court. The place of trial will generally be within the constituency, electoral region or local government area for which the election was held, but can be moved if necessary.
Costs and ‘security for costs’
When you question an election, you will have to pay for ‘security for costs’. The maximum is currently £2,500 for a petition questioning a local government election and £5,000 for one relating to an Senedd election.
You’ll usually get the ‘security for costs’ back if you win the case but you might have to pay more if you lose the case or you decide to stop it.
Section 133 of the 1983 Act and article 92 of the 2007 Order provide the election court with the discretion to make certain orders relating to costs.
Conclusion of the election court
Section 145 of the 1983 Act provides that at the conclusion of the trial of a petition questioning a local government election, the election court shall determine whether the person whose election is complained of (or any other person), was duly elected, or whether the election was void.
Likewise, article 99 of the 2007 Order provides that the election court will determine whether the Senedd member whose election or return is complained of, or any and what other person, was duly elected or returned, or if applicable, the election was void.
Where the election court determine that at a regional election a Senedd member for a Senedd electoral region was not duly elected or returned, the court in addition shall determine that the regional election was void.
The special leave of the High Court is needed to appeal the trial of any election petition on any question of law. If leave to appeal is granted, the decision of the Court of Appeal in the case is final and conclusive.
Corrupt and illegal practice
An Elections Court could determine that a candidate or a person involved in the election is guilty of a corrupt or illegal practice.
The difference between “corrupt” and “illegal” practice lies in the severity of the criminal sentence and the length of time that disqualifications from the electoral process consequent on conviction last (as outlined further below).
An example of a corrupt practice committing, aiding, abetting, counselling or procuring the commission of, the offence of personation . An example of an illegal practice is to vote as a proxy for somebody even if that person knows that the elector is subject to a legal incapacity to vote .
If a person is found guilty by an Elections Court of a corrupt practice, the person is incapable for a period of five years (“the relevant period”) from the date of conviction of:
- Being registered as an elector as an elector at parliamentary election and local government election Great Britain
- Voting in any parliamentary election in the UK
- Voting at any local government election in Great Britain
- Being elected to the House of Commons
- Holding any other elected office
If already elected to elective office, the person has to vacate their seat. A person is also incapable of holding judicial office in Scotland .
The above sanctions also apply to a person found guilty of an illegal practice. However, the only difference is that the “relevant period” for illegal practice is decreased to three years .
The incapacities to hold office may be disapplied for some corrupt and illegal practices .
If the Elections Court determines that a candidate is found guilty of a corrupt or illegal practice, the election of the candidate can be void .
For local government elections, where nobody else is declared elected in place of a corrupt or illegal candidate a new election is held as a casual vacancy. For Senedd elections, where an election is void, a new election may be held depending on whether the seat is a constituency or regional seat and the circumstances of the offence committed.
Corrupt practice – prosecution
The Elections Court can also lay a report before the Director of Public Prosecutions. In addition, the DPP for England and Wales has a duty to consider making inquiries and instituting prosecutions where information is given to them that an electoral offence has been committed.
A person can therefore be prosecuted for a corrupt or illegal practice.
Corrupt practices are offences triable “either way”, attracting a maximum sentence upon conviction on indictment of one year’s imprisonment (two years for personation and postal voting offences), or a fine, or both, and on summary conviction six months’ imprisonment, or a fine not exceeding the statutory maximum, or both.
If the case is dealt with in the Crown Court the offender could be liable to a term of imprisonment not exceeding one year, a fine or both. If the case is dealt with in the magistrates, they would be liable to a term of imprisonment not exceeding six months, a fine or to both.
A person convicted of corrupt practice shall also be incapable to be registered/elected to certain offices etc for five years.
Illegal practice – prosecution
Illegal practices are summary only offences. A person guilty of an illegal practice shall be liable to an unlimited fine.