Democracy Newham Ltd, R (On the Application Of) v London Borough of Newham

Under the Coronavirus postponement scheme, the reference in regulation 12(3) of the 2020 Regulations to a referendum mentioned in regulation 12(2) identifies a referendum arising from a petition under section 9MC of the Local Government Act 2000. It does not impose a separate requirement to determine when that referendum would hypothetically have been held.

Accordingly, no governance referendum petition presented between 16 March 2020 and 5 May 2021 could be valid. The proper officer had no discretion to accept such a petition. A later amendment treating petitions as presented on 9 February 2021 did not assist where the council had already notified its intention to hold its own referendum.

The claimant sought judicial review of the defendant council’s decision that a petition for a referendum changing its governance model was invalid. The petition was presented on 18 September 2020, during the period specified in regulation 12 of the Local Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) Regulations 2020.

The dispute concerned the construction of regulation 12(3), which amended regulation 9 of the Local Authorities (Referendums) (Petitions) (England) Regulations 2011. The claimant argued that the amendment applied only where the referendum would otherwise have been held during the relevant period. The council argued that it applied to every petition referendum presented during that period.

The court also considered the effect of amending regulations due to come into force on 9 February 2021.

1. The application for judicial review was dismissed. The claimant’s petition was invalid.
2. Regulation 12(3) of the 2020 Regulations had to be construed in a manner giving effect to the whole statutory scheme and its practical purpose. The words referring to a referendum mentioned in regulation 12(2) identified the type of referendum concerned: a referendum following a petition under section 9MC of the Local Government Act 2000. They did not introduce a further temporal condition requiring the proper officer to decide when the referendum would hypothetically have been held.
3. The relevant provisions pursued three connected purposes: preventing governance referendums during the relevant period, preserving signatures obtained before that period for later use, and preventing petitions from being presented during the period. The claimant’s construction would have made regulation 12(3)(a) ineffective for most of the period and produced an extraordinary and irrational distinction between petitions presented at different points in the period.
4. On the proper construction, regulation 9(1)(c) of the 2011 Regulations was amended so that no petition for a governance referendum presented between 16 March 2020 and 5 May 2021 could be valid. The proper officer therefore did not err by failing to determine the hypothetical date of a referendum.
5. The proper officer was required to determine validity by applying the statutory criteria and had no discretion to accept a petition contrary to them, consistently with the approach identified by analogy in Begum v Returning Officer for the London Borough of Tower Hamlets [2006] EWCA Civ 733 and R (De Beer) v The Returning Officer for the London Borough of Harrow [2002] EWHC 670.
6. The 2021 Regulations did not alter the result. Although the petition would be treated as presented on 9 February 2021, the council had already given notice of its intention to hold its own referendum. Regulation 7 of the 2011 Regulations therefore prevented the petition from being valid.