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Prestatyn’s election farce and the busted petition process

🕔14.Feb 2013

Hang on! Don’t go away just yet! Yes, this is about a particular election in coastal Denbighshire, but it’s more generally about challenging the declared results of elections through petitions and election courts – matters of which Birmingham in recent years has unrivalled experience.

Election petitions aren’t commonplace; but, of 44 petitions brought over the past 15 years challenging the results of UK local government elections, one in every five has concerned a Birmingham ward. Many will recall the big Aston/Bordesley Green postal vote tampering trial in 2004/05, but there have also been allegations of ineligible candidate nomination (Aston 1999); personation, treating and bribery (Sparkhill, 2000); votes cast by overseas residents (Nechells, 2000); as well as the run-of-the-mill unauthorised election expenses and making false statements. If, as I’ll suggest, the system’s all but broken and in urgent need of reform, we certainly can’t claim ignorance.

Over now, though, to Prestatyn. Remember the 2000 US Presidential election, the seemingly endless Florida recounts, and how we mocked an electoral system that took 35 days to produce a winner? Well, it’s now over eight times as long – 287 days and counting – since last May’s Welsh local elections. Yet one of the winning candidates in Denbighshire County Council’s Prestatyn North ward has still to take his seat. And if that doesn’t signify a busted system, no longer fit for purpose, it’s hard to imagine what might.

Like Birmingham wards, Prestatyn North elects three councillors, but at the same time, so each elector has three votes. The results, as announced by the Returning Officer (RO), were as follows:
1.  Guy-Davies (Lab)                 633 votes             Elected
2.  McLellan (Lab)                     598 votes             Elected
3.  Pennington (Cons)              580 votes             Elected
4.  German (Indep)                   557 votes             Not elected
5,6,7  Independents                                                  Not elected
8.  Penlington (Lab)                  366 votes             Not elected
9.  Eckersley (Cons)                  325 votes             Not elected
10. Pope (Cons)                          314 votes             Not elected

It’s not hard to guess what went wrong. Yes, one of the Conservative candidates and one of Labour’s have quite similar surnames, and, while many electors would have split their three votes between candidates of different parties, a Labour-Conservative split result of these dimensions looks, well, incredible.  It was. What happened was that Pennington (Con) had been credited with a share of the votes of those who voted en bloc for all three Labour candidates, and Penlington (remember: L for Labour) with the rather smaller share of the en bloc Conservative ballots. In electoral administration jargon, there was a screw-up.

In fact, these inept-but-innocent counting screw-ups happen more often, and with more significant consequences, than you might think. In Broxtowe (Notts) last year, the names of a Lib Dem husband and wife were transposed in copying them from one list to another, and the wife was officially declared elected, despite polling 21 fewer votes than her now officially defeated husband.

Far more notoriously, here in a two-councillor election in Kingstanding ward in 2006, BNP candidate, Sharon Ebanks, was elected in place of a second Labour member, having been gifted an extra 981 votes in a double-counting of all those ballot papers on which electors split their two votes between candidates of different parties.

In all three cases, these dumb but essentially innocent errors were quite quickly identified by the ROs, but only after the official declaration of the result had made them irreversible. It might seem convenient, if an embarrassed RO were able publicly to admit that “Oops, I made a boo-boo. Can we all go back five minutes?” Sadly, election law decrees that this is not on. In the UK the only way to challenge a declared result is legally, and expensively, for a miffed candidate or elector to issue an election petition within three weeks of the election, pay the £465 fee, and also ‘give security’ for all relevant costs arising – up to £5,000 in a parliamentary election, £2,500 in a local. No security, no petition.

Here’s where the trouble starts and where fundamental reform is decades overdue. A robust procedure for challenging the result, whether on the grounds of innocent administrative error or intended corruption, is a vital part of any sound electoral system. It should be accessible, rational, straightforward, transparent, efficient, swift and affordable. Our petition procedure today, little changed from that set out in the 1868 Parliamentary Elections Act to deal with deliberately illegal practices, fails every one of these tests.

In Broxtowe and Kingstanding the rightful winning candidates were relatively lucky, both cases getting to court and having the result overturned within about 10 weeks. Prestatyn North’s hapless Paul Penlington is still discovering the hard way what happens when the judicial system, as well as the Returning Officer, lets you down.

A petition was issued in his name on May 24th, to have the votes recounted and the result overturned. Despite the Council admitting from the outset its “fundamental error”, it still took until late July for the jury-less High Court to authorise a recount, and a further three months for that count to take place in, for some reason, London. Unhurried, certainly, but only now does the tale become truly incredible.

The result of a recount can only be officially announced and accepted by a special two-judge election court, which took nearly a further three months to convene – again in London. Only on January 23rd, therefore, were the correct figures finally declared – Penlington 606, Pennington 341 – and the original result overturned.

You wouldn’t, by now, expect the ruling to come into effect immediately, and of course it didn’t. The duly elected Councillor Penlington should, though, have taken his seat a week later – had former-Councillor Pennington not decided that the loss of his allowances would put his “livelihood at stake”, refused to give up his seat, and objected in writing to the court’s decision. Incidentally, legal costs, awarded against the Returning Officer, were estimated at this point to have passed £20,000, with the clock presumably still ticking.

There is so much wrong here that, even given the space, it would be hard to know where to start: the time, the cost, the arcane procedures, the irrationality and inflexibility? Why the great rush to issue a petition, when the judicial process meanders as it pleases? Why can one elector challenge a parliamentary election, while four are required for a local election? Why can’t a Returning Officer or a political party initiate a petition? And so much more – most now thankfully documented in the Electoral Commission’s excellent report, Challenging Elections in the UK (http://www.electoralcommission.org.uk/__data/assets/pdf_file/0010/150499/Challenging-elections-in-the-UK.pdf).

Prestatyn North may be just a quirky contemporary footnote, but it does illustrate one key aspect of the problem. The petition procedure was designed to deal with 19th Century corrupt practices in parliamentary elections. Its requirement today is to deal with 21st Century corrupt practices, and more frequently with innocent errors and administrative misjudgements, in local government elections – for which it is hopelessly ill-equipped.

There were 52 parliamentary petitions tried in 1868 alone, all dealing with alleged malpractice. Since 1929, by contrast, there have been just 11. They sometimes make headlines – most recently, ex-Labour minister Phil Woolas’s disqualification in 2010 for making false statements about his Lib Dem opponent – but they’re rare.

Local government election petitions are not rare. Since 1997, at least 44 from principal councils have gone to trial, plenty more from town and parish councils, and still more have been withdrawn before trial, usually due to lack of funds. Of the 16 in the past five years, two (both subsequently withdrawn) claimed a candidate was disqualified to stand, and three alleged corrupt or illegal practices committed by or on behalf of a candidate.

11 of the 16, however, concerned actions not by political opponents, but by electoral officials: either administrative Prestatyn-type errors or process decisions causing the election not to have been conducted ‘substantially in accordance’ with the rules – actions, in short, wholly different from those for which petitions were originally intended.

The Law Commission has embarked on a comprehensive review of electoral law, aimed ambitiously at collating the existing morass of primary and secondary legislation into something more coherent, and conceivably even a single UK Electoral Act. It’s still in its early stages, and its members may hope that when they eventually reach ‘Challenging the election result’, they’ll be almost there. The sorry saga of Prestatyn, even if settled by then, should remind them that they won’t be.

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