The bizarre saga of Fergus Wilson’s attempts to stand for Kent’s Police and Crime Commissioner have taken another twist this evening as Wilson claims he will be seeking an injunction to allow him to appeal against the decision that he is ineligible to stand.
Is this possible?
First, it appears there were two problems with Wilson’s nomination. The reasons given by the Returning Officer were as follows:
Nomination Invalid as the papers were not delivered as required by law and were not subscribed as required by law.
It is not clear what these issues were exactly, but it appears there is a problem with the delivery of the papers (the law says, for example, that the papers can only be delivered by the candidate or the agent), and also a problem with the subscribers – nominations for PCC have to be subscribed by 100 electors.
Returning Officers are required to apply the law strictly, and rightly so. If Wilson’s nomination was not correctly delivered, and if it was not subscribed to 100 electors, then it appears that is the end of the matter.
And if the Returning Officer has made an error, then the proper course of action appears to be for the election to go ahead, and for Wilson to then challenge the result by way of an Election Petition. In the case of Regina (De Beer and Others) -v- Balabanoff, Returning Officer for the London Borough of Harrow the High Court refused leave to appeal for judicial review to a candidate in similar candidates, holding that the Returning Officer was right to act strictly within the rules. As to the possibility of judicial review, in that case Mr Justice Scott Baker commented:
“It has not been argued before me that the court cannot interfere by way of judicial review, although it is fair to say that neither party was aware of any case where there has been a successful application for judicial review against a returning officer.
In my judgment, although judicial review does lie, this is an area in which the courts should be extremely slow to interfere with the decision of a returning officer. No doubt where a returning officer has plainly acted unlawfully relief will lie. But ordinarily returning officers should be left to conduct the election process as provided by Parliament.”
So a candidate has a mountain to climb if he wants the courts to intervene.
Even worse for Wilson is the Court of Appeal case of Begum and Others -v- Returning Officer for the London Borough of Tower Hamlets. In that case, candidates (for the Respect Party in this instance) had their nomination papers rejected because they had used the wrong electoral numbers – having referred to an out of date electoral register. The High Court ordered the election suspended so their case could be considered, but the Court of Appeal ruled that decision was wrong: the election should go ahead as planned. It would be, they ruled “a rare case indeed” in which the courts would interfere in an election before it took place:
In principle, elections should be contested by those who have been properly nominated in accordance with the rules. Moreover local elections should, if at all possible, all take place on the day appointed
The Court of Appeal case is, of course, binding on the High Court if it hears Wilson’s case. It seems (unless the Returning Officer has made a really catastrophic and obvious error) that he has reached the end of the road.
Update 07/04 23:15 – Kent Messenger Group Political Editor has reported further on the errors in Wilson’s nomination:
Both of these appear fatal to his ambitions. The 2012 Police and Crime Commissioner Elections Order requires the nomination papers to be submitted in person, and the electoral number of every person subscribing must be shown.