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Comment and Analysis Masthead

Home addresses of election candidates

Ballot iStock 000006080605XSmall 146x219James Goudie QC analyses a recent High Court case over whether there was a requirement to publish a mayoral election candidate's home address.

The mayoral election procedure in R (Jarvis) v SoS for CLG (2018) EWHC 1259 (Admin) was governed by the Combined Authorities (Mayoral Elections) Order 2017. The Order (“the 2017 Order”) includes a requirement for candidates to give their home address in full in their nomination papers in circumstances where that address is subsequently published (“the requirement”).

Mr Jarvis did not wish to publish his address. He has been the subject of death threats. He considered that publication would endanger his life, or that of members of his family. He sought judicial review of the requirement and of the Returning Officer’s decision that Mr Jarvis had to abide by the requirement.

The obligation on an electoral candidate to provide his or her name and full address in support of nomination has a long history. If one goes back to the Ballot Act 1872, Rule 6 of the Rules for Parliamentary Elections provided that:

“The description of a candidate in the nomination paper should include his names, his abode and his rank, profession or calling.”

The Representation of the People Act 1983 repeated much of what was in the Ballot Act 1872. The Rules for Parliamentary Elections are contained in Schedule 1 to the 1983 Act.  Rule 6 provides that:

“The nomination paper shall state the candidate’s full name, home address in full and, if desired, description.”

In 2009, there was an amendment to the Rules in respect of parliamentary elections, whereby candidates were not required or could decide not to provide their home address for publication but were still required to provide it to the Returning Officer.

Local elections have their own sets of rules. The Local Elections (Principal Areas) (England and Wales) Rules 2006 govern the procedure for election for constituent councils. Those require the provision of a home address. The Mayoral Elections Regulations 2007 provide for rules in respect of mayoral elections. The provisions as to nomination in those rules are identical to those in the Local Election Rules.They also require candidates to provide their home addresses.

Part 6 of the Local Democracy, Economic Development and Construction Act 2009 (“the 2009 Act”) provides for the Secretary of State to create combined authorities. The election of a mayor of a combined authority has to be conducted on the same day as the ordinary election of a constituent council of the combined authority. To be a mayor of a combined authority a person must have owned property or resided or worked in the combined authority area for 12 months before election day or be entitled to vote in the election. Paragraph 12 of Schedule 5B to the 2009 Act provides that:

“The Secretary of State or the Minister for the Cabinet Office may, by order, make provision as to the conduct of elections for the return of mayors.”

The 2017 Order made pursuant to that enabling power provides for the election to be conducted in accordance with the rules set out in Schedule 1 to the Order. Rule 6 deals with the nomination of candidates. Rule 6(3) provides that:

“Subject to para. 7, a nomination paper must state the candidate’s full names, home address in full and, if desired, a description.”

Rule 6.6 provides that:

“Paragraph 7 applies where the mayor is to exercise functions of a Police and Crime Commissioner in accordance with an order made under Schedule 5C to the 2009 Act.”

Rule 6.7 provides that:

“Where this paragraph applies, the nomination paper, instead of stating the candidate’s home address, may contain a statement made and signed by the candidate that he or she requires the home address not to be made public, and if it does so must state the name of the relevant local government electoral area.”

There were two grounds of complaint before Choudhury J. The first was that the 2017 Order imposing “the requirement” was irrational or otherwise ultra vires the enabling legislation, that is to say the 2009 Act. The second is that the 2017 Order is in breach of Mr Jarvis’s rights under Article 2 of the ECHR, the right to life. Choudhury J dismissed both complaints.

Thus, where the mayor is to exercise Police and Crime Commissioner (“PCC”) functions, there is an exception to the requirement to provide home addresses. The authority in this case is not one where the mayor is required to exercise such functions. Accordingly, the exception does not apply here.

Rule 13 is headed “Publication of Statement of Persons Nominated”. Rule 13.1 says that:

“The Combined Authority Returning Officer must prepare and publish a statement showing the persons who have been and stand nominated and any other persons who have been nominated, with the reasons why they no longer stand nominated.

(2)       A statement must show the names, addresses and descriptions of the persons nominated as given in their nomination papers.”

Sub-paragraph 8 provides for the exception in respect of those carrying out PCC functions.

Choudhury J said:-

“16.  In my judgment, it is unarguable to suggest that the 2017 Order amounts to an irrational use of powers under the 2009 Act.  I say that for several reasons.  First, irrationality is a very high threshold indeed.  In order to meet it, it would have to be shown that the imposition of the requirement to publish addresses was something that no reasonable Secretary of State, acting in accordance with his powers, would do.  Given that there is a long history of almost 150 years of requiring candidates to publish their home addresses in order to stand for elections, it is nigh on impossible, in my judgment, to cross that high threshold.  There is nothing to suggest, and I have not been taken to any background matter which might suggest, that that which was rational in 2008 in respect of parliamentary elections suddenly became irrational in 2009 so as to require a relaxation of the requirement. It is, of course, also relevant to note that the requirement still pertains in a very large number of elections up and down the country, in none of which has the question of irrationality been raised. Were I to decide that this was irrational, then arguably it would also be irrational for a host of other provisions which I have not had an opportunity to consider. Many of those other provisions have also been the subject of recent amendments, as recently as 2017, whereby there were slight amendments to the requirement to publish addresses; but none of them removed the requirement altogether. Of course, the fact that irrationality has not been raised previously does not mean that it cannot be raise now.  However, there would have to be a very strong basis for suggesting that what Parliament has decreed as necessary for so long is now irrational.

17. … there is a real purpose behind the requirement of publication – namely, identification – which is not, on its face, irrational.

18. As to the distinction drawn between those with PCC functions and those without, in my judgment, far from creating a distinction which is arbitrary, the exception in respect of those with PCC functions appears, on its face, to be perfectly rational and explicable.  Such persons will be dealing on a daily basis with matters pertaining to criminal justice and may be taking decisions that will affect those who may be involved in crime or who are affected by crime. Parliament has taken the view that to publish the addresses of such persons may put them in a particular category of risk over and above other classes of candidate. It seems to me almost axiomatic that such persons will be faced with the risk of retaliation or retribution for their actions in a way which other classes generally will not be.

19. Of course, there may be some candidates in other classes, Mr Jarvis being one of those, who, in their particular circumstances, face death threats which place them at a higher risk than others in their position. However, that, in itself, is not sufficient to render the requirement to publish addresses irrational in the circumstances.

20. Of course, I note that the 2009 change to the Parliamentary Rules was the first of similar changes being introduced in other elections around the country. I also note that there is material before me which suggests that the 2006 Rules are to be brought into line with parliamentary election procedures as from next year. However, that merely serves to underline the fact that Parliament has not made those changes as yet in respect of mayoral elections or, indeed, other elections, and the rules must be applied by the Returning Officer as they currently stand.  Nothing in that picture suggests that the current rules are irrational.

21. There was some debate … as to whether there was any real value in the publication of addresses. … one cannot assume that there is no purpose and one can infer that there is some purpose behind it. There may be all sorts of reasons why Parliament has, for many years, considered publication to be a valuable matter. The interests of transparency and of establishing some local connection with the seat in question might themselves be said to have some value.  However, it is not for this court, it seems to me, to attempt any detailed inquiry into the reasons why such publication might be of value or might be considered important by the electorate. The fact is that Parliament has decided, in respect of mayoral elections, that there should be publication of addresses. That requirement, in my judgment, is not irrational. Ground 1 therefore does not succeed.”

“28.  For reasons already set out under Ground 1, I do not agree that there is no public interest in publication.  Taking all of these matters together, it is my judgment that the requirement does not impose an obligation on the state in the circumstances of this case to take measures to secure the right to life, and that the particular form in which the order exists does not give rise to any real or immediate risk to life which would require that provision either to be read down or, indeed, struck out.

29. Accordingly, Ground 2 does not succeed. As it does not succeed, the reading down arguments do not arise. In any case, it seems to me that reading down would be wholly impracticable, given the terms of the language used, which very clearly require publication of home addresses in full, and the only option for the court, if it were to find that there was a breach of Art. 2, would be to strike out. For reasons I have already set out, there is no breach in this case.”

James Goudie QC is a barrister at 11KBW. This article first appeared on the set's Local Government Law blog.

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