Why has Liverpool City Council blocked my request to view the nomination papers of the 8 candidates wanting to be Liverpool City Region Combined Authority Mayor?
This is a story about secrecy, however it also shows what I have to deal with every day of my working life.
There is not supposed to be secrecy surrounding elections. Why? It’s supposed to be open and transparent so that if anyone tries to game the system it can be spotted.
Elections attract not just domestic interest but international interest.
Part of my role is to monitor what goes on and write about it.
This places me at odds with Liverpool City Council and the Electoral Commission (who have yet to respond at the time of writing this), but that’s why there is independence of the press.
My own view is either a drafting error was made by a civil servant in the legislation for Metro Mayors or the Electoral Commission overlooked something when writing their guidance.
The way the legislation went through parliament as regulations, it couldn’t be amended.
However even Wirral Council is trying to somewhat gag me with a “the dignity of Election proceedings must not be compromised” clause if I want to attend the count on Friday.
Just to be crystal clear, Wirral Council was far as I can tell is running elections as efficiently as they can following the embarrassing revelations surrounding the Employment Tribunal earlier this year, the “technical” offences that the CPS agree happened in the past (but decline to prosecute), well all these factors have meant Wirral Council have learnt from past mistakes and are doing their best.
My criticism is not of the way the elections are being run. This isn’t about the dignity of elections. It’s a more fundamental point about legislation being written in such a way that you don’t end up in this situation.
It’s led to two somewhat contradictory pieces of legislation about inspection and copies of nomination papers.
The two pieces of legislation according to at least the Electoral Commission interpretation contradict each other.
So it wasn’t drafted properly (probably due to the pressures Brexit has put the civil service under).
I am going to explain the two pieces of legislation that apply to Mayoral elections such as the Liverpool City Region Combined Authority election.
Firstly, this is the piece of legislation that provides a right of access to nomination papers, it applies to the Metro Mayoral election. Just for information, rule 2(1) means that Saturdays, Sundays, Christmas Eve, Christmas Day, Good Friday, a bank holiday or a day appointed for public thanksgiving or mourning are disregarded as days.
The Local Elections (Principal Areas) (England and Wales) Rules 2006 Schedule 3, Part 2, paragraph 1 states:
Inspection of nomination papers and consents to nomination
11. During ordinary office hours on any day, other than a day specified in rule 2(1), after the latest time for delivery of nomination papers and before the date of the poll, any person may inspect and take copies of, or extracts from, nomination papers and consents to nomination.
Clear enough? What happens if someone tries to block this? The Electoral Administration Act 2006, Pt 6, s.42 and s.43 make blocking access to inspection of election documents a crime. But the person’s supervisor who failed to take appropriate steps can get into trouble too.
“ (1) The relevant officer must—
(a) make relevant election documents available for inspection by members of the public;
(b) supply, on request, copies of or extracts from such description of relevant election documents as is prescribed by regulations.”
So, having made a request to Liverpool City Council’s Returning Officer Ged Fitzgerald, which was then forwarded to Stephen Barker, why is this request being blocked???
Well Liverpool City Council’s answer, relying on Electoral Commission guidance (which is only one interpretation of the law) is that the The Combined Authorities (Mayoral Elections) Order 2017 applies. That guidance is based on SI 2017/66, Schedule 1, Part 3, paragraph 11 which is below.
Place for delivery of nomination papers and right to attend nomination
11.—(1) The combined area returning officer must fix the place in the area of the combined authority at which nomination papers are to be delivered to that officer, and must attend there during the time for their delivery and for the making of objections to them.
(2) Except for the purpose of delivering a nomination paper or of assisting the combined authority returning officer, no other person is entitled to attend the proceedings during the time for delivery of nomination papers or for making objections to them unless that person is—
(a) a person standing nominated as a candidate, or
(b) the election agent, proposer or seconder of such a person, or
(c) a person who is entitled to attend by virtue of section 6A or 6B of the Political Parties and Referendums Act 2000 Act(1).
(3) Where a candidate is the candidate’s own election agent, the candidate may name one other person and that person is entitled to attend in place of the election agent.
(4) Where a person stands nominated by more than one nomination paper, only the persons subscribing as proposer and seconder—
(a) to such one of those papers as the candidate may select, or
(b) in default of such a selection, to that one of those papers which is first delivered,
are entitled to attend as the person’s proposer and seconder.
(5) The right to attend conferred by this rule includes the right—
(a) to inspect, and
(b) to object to the validity of,
any nomination paper.
(6) Paragraph (5) does not apply to a person mentioned in paragraph (2)(c).
(7) One other person chosen by each candidate is entitled to be present at the delivery of the candidate’s nomination, and may afterwards (so long as the candidate stands nominated) attend the proceedings referred to in paragraph (2) but without the right referred to in paragraph (5).
As you can see, it’s legislation about who can object to a nomination, who can be there when the nomination papers are submitted and so on.
In theory the two pieces of legislation are compatible, that is one right for the candidates to inspect and object, another for any person to inspect and receive copies of the nomination papers.
However Liverpool City Council states that because the Electoral Commission guidance (which I quote from below) which seems to have conveniently forgotten a right to inspect for any person states this, that therefore their view is that I don’t have any right to inspect or receive copies of the nomination papers.
Which of course is similar to the attitude expressed by Liverpool City Council when I tried to film a public meeting. Their view was that it doesn’t matter what the law is, Liverpool City Council can do what it likes! Last year I was the complainant in ICO decision notice FS50591795. Liverpool City Council had thirty-five days to comply with it, or 28 days to appeal it. Liverpool City Council did neither! Not complying is deemed contempt of court. So yes, I’ve experienced problems with Liverpool City Council.
However there are mayoral elections elsewhere in the country too.
So below is a quote from the Electoral Commission guidance (which I disagree with and it wouldn’t be the first time that the Electoral Commission have had to admit that their guidance was incorrect).
Somewhat ironically the guidance is titled Access to documentation after a local government election in England and Wales when the election result won’t be declared till Friday!
Just to be abundantly clear, the junior official Stephen Barker at Liverpool City Council is probably only doing what he thinks is right. It’s Ged Fitzgerald (the Returning Officer) that is ultimately personally responsible for how the Mayoral election is run.
“Combined authority mayoral election
Nomination papers at a combined authority mayoral election can only be inspected by certain people and only until the deadline for making objections to the nomination papers as set out in Chapter 3 of our guidance for Combined Authority Returning Officers: Delivery of key processes.
Nomination papers cannot be inspected by anybody else at any time. Nomination papers may only be viewed and supplied to those who have a legal power to obtain documents. This may be a police officer using any powers they may have to take documents into their custody, or a court order.”
So what do people reading think? Please leave a comment. If I’ve made an error or have it wrong, I’d be happy to apologise!
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