Elections

I am currently out of the office on annual leave. I will be back in the office on September 15th. My emails will be checked for freedom of information requests. If you have any urgent queries that need to be dealt with before my return date, please contact my colleague Izabella Evans at [email address] or Marianne Potter at [email address]. Thank you.

Dear Sir,

Our Ref: FOI 92/08

Thank you for your request under the Freedom of Information Act 2000 (`the
Act') dated and received on 8 September 2008. The Commission aims to
respond to requests for information promptly and within the statutory
timeframe of twenty working days. We acknowledge it has taken us longer in
this instance. Please find your request in bold below together with our
response below.

Your request and our response
The Commission does not currently hold this information. Please see our
specific responses below.

'As the requirement to appoint an ERO and RO (local and national) is
statutory would you:

a) Identify if the failure to appoint them is your responsibility or that
of the Council and its Solicitor to the Council

The Commission does not have a statutory duty to appoint Electoral
Registration Officers (ERO'S) and Returning Officers (RO's) for local
elections in England and Wales. That duty falls on individual Councils by
statute. In Scotland in relation to the appointing of both ERO's and RO's
it is the responsibility of the local authorities.

b) provide copies of any research that has been undertaken and
     guidance that has been provided by yourselves to either ministers
     or Councils on this issue.
The Commission is not aware of any research that was undertaken on this
matter. Please also kindly note that no guidance was provided to
ministers or the Councils on this issue.

c) provide a list of all Councils that function as
     Electoral Registration Districts that have failed to appoint an
ERO
     and RO for the last ten years, details of all elections that have
     been held, and the expenses associated with elections when
neither
     an ERO and/or RO had been appointed.
The Commission does not hold such a list or information.
 d)  identify how many Council elections for the last ten years have
been declared invalid due to a Council's failure to appoint an ERO and a
RO and provide copies of any reports that you have prepared identifying
that virtually all elections in England have been invalid due to a failure
of the representatives of the political parties that run Council's to
appoint either an ERO or a RO.

The Commission is not aware of any elections that have been declared
invalid under the circumstances above.

  e) identify if the Electoral Commission has entered into a memorandum
of understanding with the Commission for Local Administration England
and/or the Local Government Ombudsman identifying that a failure of a
Council not to appoint an ERO or an RO is not maladministration causing
injustice, and should not be regarded as such and provide a copy.

Please kindly note that the Commission has not entered into any memorandum
of understanding.
 f)  provide copies of any documentation that you
     might have available identifying if the Electoral Commission has
     made the government aware of the failure of Electoral
Registration
     Districts to appoint an ERO and a RO, and if the Electoral
     Commission shall be identifying that all election expenses
incurred
     as part of elections related to those where an ERO and a RO have
     not been appointed are not valid, and should be recovered from
the
     Political Parties that have failed to appoint either RO's or
ERO's.'
The Commission does not hold any documentation in relation to this matter.
If you are not satisfied with this response, please note that the
Commission operates a review procedure, details of which are attached.

<<Freedom-of-Information-and-Environmental-Information-review-procedure
final.doc>>
Please also note that if you have exhausted all internal Commission review
procedures and you are still not satisfied you have the right to appeal to
the Information Commissioner. Details of this procedure can be found on
the ICO website: [1]http://www.ico.gov.uk

Yours sincerely

Michelanne Calhoun Wilson
Legal Advisor
The Electoral Commission
Trevelyan House
Great Peter Street
London SW1P 2HW
Tel: 020 7271 0625
Fax: 020 7271 00505
[2]www.electoralcommission.org.uk
[3]www.aboutmyvote.co.uk

Democracy matters

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References

Visible links
1. file:///tmp/BLOCKED::/exchweb/bin/redir.asp?URL=http://www.ico.gov.uk
2. file://www.electoralcommission.org.uk
3. file://www.aboutmyvote.co.uk

Dear Mr Carruthers

Our Ref: FOI Review 92/08

Thank you for your request for a review of your request for information
under the Freedom of Information Act 2000 (FOI 92/08) dated 8 September
2008. The Commission aims to respond to requests for information
promptly. I would like to apologise for the delay in responding to your
request.

I have undertaken the review of the response to your Freedom of
Information Act request referenced above.

I can confirm that the Commission does not hold the information you have
sought. The Commission is therefore unable to provide it to you.

I would like to take the opportunity to explain why the Commission does
not hold this information. The Commission is a body established by
statute (the Political Parties, Elections and Referendums Act 2000
(PPERA)), and has only those functions allocated to it by law.

To date, the Commission has not viewed the collection of information about
the appointment of returning officers or electoral registration officers
as coming within its statutory functions. I have set out the possible
relevant functions below and have addressed in turn how the Commission
considers that no obligation to collect the information you seek arises.

For example, the Commission has the function of "providing advice and
assistance" to returning officers and other persons under section 10 of
PPERA. The Commission considers that this includes, for instance, advice
on the interpretation and administration of electoral law, but it does not
consider that section 10 extends to advising local authorities or other
bodies to comply with their own statutory responsibilities.

The Commission does have monitoring and supervisory functions under
sections 145 and 146 of PPERA, but these relate to the rules on party
donations and finance rather than electoral administration.

I have interpreted your reference in your request for a review to the
Electoral Commission's website statement that it is responsible for
"set[ting] the standards for running elections and report[ing] how well
this is done" as being to section 9A of PPERA which permits the Commission
to (a) set performance standards for elections and (b) publish those
standards. In the Commission's view, this covers how elections are
conducted and managed and to what standard but it does not include the
actual appointment of returning officers or electoral registration
officers.

As explained in the response to your request, this is usually the
responsibility of the local authority. For local authorities in England,
the obligation to appoint a returning officer is contained in s 35(1) of
the Representation of the People Act 1983 (RPA); in Wales, in s 35(1A)
RPA; in Scotland, in s 41(1) RPA. In Northern Ireland, the Electoral Law
Act (NI) 1962 governs the appointment of returning officers. In relation
to registration officers, under s 8 RPA this is made the responsibility of
local authorities in England, Wales and Scotland, and in Northern Ireland,
the Chief Electoral Officer in Northern Ireland is deemed the registration
officer for each constituency. Please note that the Chief Electoral
Officer is an independent statutory officer and is not connected with the
Electoral Commission.

It therefore follows that the Commission has not undertaken any research
on this point, nor has it collected lists of non-appointments and
associated details, such as expenses.

The Commission has also not made any reports on elections declared to be
invalid in the circumstances you refer to, nor is it aware of any such
invalid elections. I would draw your attention to the provisions of the
RPA which provide that a local authority election cannot "be questioned by
reason of a defect in the title, or want of title, of the person presiding
at or conducting the election, if that person was then in actual
possession of, or acting in, the office giving the right to preside at or
conduct the election" (s 35(5) for England and Wales and s 41(3) for
Scotland). Also relevant is s 48 RPA which provides that "no local
government election shall be declared invalid by reason of any act or
omission of the returning officer or any other person in breach of his
official duty in connection with the election ... if it appears to the
tribunal having cognizance of the question that - (a) the election was
conducted so as to be substantially in accordance with the law as to
elections; and (b) the act or omission did not affect its result."

It is therefore very unlikely that a local authority election would be
declared invalid on the grounds you refer to and thus the Electoral
Commission has not seen fit to seek out information on any such election.

With reference to your point about any Memorandum of Understanding I can
confirm that the Commission has not entered into any such agreement.
However, I would also point out that the Commission has no power to
absolve any local authority from its statutory responsibilities so it
could not be a party to any such agreement even if one existed. In any
case, it would be unlikely and unnecessary, given the existence of
sections 35 and 48 RPA, for a failure to appoint the officers in question
to be the subject of a separate, non-statutory agreement.

Finally, in regard to your request for documentation to government
concerning any failure to appoint a registration officer or a returning
officer, I can confirm that the Commission does not hold information of
this nature since it does not regard it as one of its functions. Nor has
it taken a view on the validity of elections or the recovery of costs in
the circumstances you describe given the existence of sections 35 and 48
RPA. I would point out that the recovery of costs from political parties
for failure to appoint returning officers or registration officers would
not be possible in any case, since they have no power to make those
appointments.

Please also note that if you have exhausted all internal Commission review
procedures and you are still not satisfied you have the right to appeal to
the Information Commissioner. Details of this procedure can be found on
the ICO website: [1]http://www.ico.gov.uk

Yours sincerely

Caroline Morris
Consultant Lawyer
The Electoral Commission
Trevelyan House
Great Peter Street
London SW1P 2HW
Tel: 020 7271 0523
Fax: 020 7271 0505
Textphone: 18001 020 7271 0713
[2]www.electoralcommission.org.uk
[3]www.aboutmyvote.co.uk

Democracy matters

P   Please consider the environment before printing this email.

References

Visible links
1. file:///tmp/BLOCKED::/exchweb/bin/redir.asp?URL=http://www.ico.gov.uk
2. file://www.electoralcommission.org.uk
3. file://www.aboutmyvote.co.uk