Dear Sir or Madam,

s2 of the Local Government Act 1972 clearly identifies what a
Council is. s6 of the same act clearly identifies that the valid
election of a Council is dependent on a Council complying with the
Representation of the People Act 1983.

It would appear that a number of Council's that act as electoral
registration districts appoint either an Electoral Registration
Officer [ERO] or a Returning Officer ['RO']. It would further
appear that very few Council's identify that they need to appoint
either an ERO or a RO (local and national) in their constitutions.

This failure inevitably means that a Council's legal adviser
(Solicitor to the Council) owes no duty of care to either the
actual Council or their constituents as the Head of Paid Service of
a Council under the Local Government and Housing Act 1989 is
responsible for their conduct. This means that most Council's have
a highly flawed complaints system.

As the requirement to appoint an ERO and RO (local and national) is
statutory would you identify if the failure to appoint them is your
responsibility or that of the Council and its Solicitor to the
Council, and copies of any research that has been undertaken and
guidance that has been provided by yourselves to either ministers
or Council's on this issue .

Would you further provide a list of all Council's 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. It is reasonably clear that
there can not have been a large number of valid elections as the
electoral registration districts (Council's) have failed to appoint
the officers required to administer these.

Would you further 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 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.

Would you also 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.

Finally, would you 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 information requested should all be easily accessible due to
the Electoral Commission's special role.

Yours faithfully,

Stuart Hardwicke Carruthers

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 Michelanne Wilson,

Review requested. This information should be held and maintained by
the Electoral Commission if it is to meet its functions

Yours sincerely,

Stuart Hardwicke CARRUTHERS

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: http://www.ico.gov.uk <BLOCKED::/exchweb/bin/redir.asp?URL=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
www.electoralcommission.org.uk
www.aboutmyvote.co.uk

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Dear Sir or Madam,

Please pass this on to the person who conducts Freedom of
Information reviews.

I am writing to request an internal review of Electoral
Commission's handling of my FOI request 'Elections'.

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/el...

It clearly states that on the Electoral Commission web Site that it
is responsible for providing the following services:

register political parties make sure people understand and follow
the rules on party and election finance publish details of where
parties and candidates get money from and how they spend it set the
standards for running elections and report on how well this is done
make sure people understand it is important to register to vote,
and know how to vote make sure boundary arrangements for local
government in England are fair.

Yours sincerely,

Stuart Hardwicke CARRUTHERS

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: http://www.ico.gov.uk <BLOCKED::/exchweb/bin/redir.asp?URL=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
www.electoralcommission.org.uk
www.aboutmyvote.co.uk

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