Begum & Ors v Returning Officer for London Borough of Tower Hamlets

Judicial review may lie during a local election, but the court should intervene only in a wholly exceptional case. Parliament ordinarily intends alleged breaches by a returning officer to be determined after the election through the statutory election-petition procedure.

A returning officer’s informal offer to check nomination papers creates no legitimate expectation unless, viewed in its statutory context, it is clear and unequivocal and its frustration is so unfair as to amount to an abuse of power. Candidates remain responsible for submitting valid papers. Even a causative breach of an election rule does not justify stopping an election where the evidence cannot establish that a later election petition would inevitably succeed.

Three candidates submitted nomination papers containing electoral numbers taken from an obsolete register. The papers were misfiled and were not checked before the deadline. The returning officer consequently rejected them as invalid. The Administrative Court found a legitimate expectation that papers submitted in good time would be checked and errors notified in time for correction. It directed the returning officer to countermand the poll and call a new election under section 39(1) of the Representation of the People Act 1983.

The returning officer appealed. The principal questions were whether rule 7(3) had been breached, whether the informal checking arrangement created a legitimate expectation, and whether judicial-review relief should interrupt the election before the statutory election-petition procedure had run its course.

1. Appeal allowed unanimously. The election was permitted to proceed. The respondents remained free to challenge its result subsequently by an election petition.

2. Although judicial review may in principle lie during an election, a court should be extremely slow to intervene and should do so only in a wholly exceptional case. Parliament had imposed duties on returning officers and provided detailed machinery for challenging an election after it occurred. Save exceptionally, the statutory machinery should be allowed to operate.

3. The returning officer had breached rule 7(3) of the Local Elections (Principal Areas) Rules 1986. The respondents’ papers were not examined as soon as reasonably practicable because they had been misfiled. The breach was causative: had the papers been examined, the errors would have been brought to the agent’s attention and corrected before the deadline. It therefore amounted to a breach of official duty within section 48(1) of the Representation of the People Act 1983.

4. The respondents nevertheless had no legitimate expectation whose denial amounted to an abuse of power. The deputy returning officer’s statement was an informal offer of assistance, not a clear and unequivocal assumption of legal responsibility for checking every paper and enabling correction. The statutory rules placed responsibility for submitting valid nomination papers on candidates. There was also no evidence that the respondents had relied on the offer, and the principal cause of their predicament was their use of the wrong register.

5. Section 39(1) contemplated countermanding by the returning officer rather than by the court. The High Court retained its general judicial-review powers under section 31 of the Supreme Court Act 1981, but those powers did not justify interrupting the election on the evidence presented.

6. The court could not conclude that an election petition under section 48 would inevitably succeed. Whether the breach affected the result required consideration of all the evidence, including the parties’ relative electoral positions. The election had not occurred, and there was no evidence establishing the likely effect of the respondents’ absence. The statutory public trial before an election court, in which other candidates could participate, was the appropriate process.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The order countermanding the poll was set aside, and the election was allowed to proceed.

2. High Court, Administrative Court: Keith J held that the respondents had a legitimate expectation that nomination papers submitted in good time would be examined and that errors would be notified in time for correction. He directed the returning officer to countermand the poll and call a new election under section 39(1) of the Representation of the People Act 1983. No citation is stated in the judgment.