The mess enveloping the law over local election candidates

The question of who can stand for election to a local council should be clearly defined and easy to understand – so that those new to politics can be candidates, so that voters don’t end up with a false choice where not all the candidates are actually allowed to be candidates and so that elections can be about choices between people and policies, rather than battles between lawyers.

In England and Wales the law was last codified and laid down in the 1972 Local Government Act. With the passage now of nearly forty years, plus frequent subsequent legislation which gave the opportunity to clarify any ambiguities, matters should now be clear.

Alas, though, a combination of poor drafting, changing interpretations and equivocation from the Electoral Commission has left part of the law in an ambiguous mess.

Section 79 of the act gives five different routes by which someone may be qualified to stand:

(a) … he is and thereafter he continues to be a local government elector for the area of the authority; or
(b) he has during the whole of the twelve months preceding that day occupied as owner or tenant any land or other premises in that area; or
(c) his principal or only place of work during that twelve months has been in that area; or
(d) he has during the whole of those twelve months resided in that area; or
(e) in the case of a member of a parish or community council he has during the whole of those twelve months resided either in the parish or community or within three miles of it.

The problem is with (b). At first glance, the reference to “owner or tenant” suggests that owning property is sufficient to qualify you to stand. But what does “occupied” earlier in the clause mean? And how does that leave (b) meaning something that isn’t already covered by the other clauses?

Until the last few years, most usually (b) has been interpreted to mean owning or renting land or property, with “occupied” being taken as an archaic or obscure phrase that doesn’t alter that basic meaning. On this basis, a farmer who lives and works elsewhere but owns a field in a council area could stand, as could someone who lives and works elsewhere but owns a property and rents it out to someone else.

This was the gist of the Electoral Commission’s advice on the topic for many years, and gives a meaning to (b) that is clearly different from the other clauses.

However, over the last few years, an increasing number of people – particularly legal officers at councils – have taken a different view. They have instead emphasised the word “occupied” and suggested that to qualify under this clause, someone must either live there or be there through work much of the time. Objections that this runs counter to Parliament’s intention, because it reduces (b) to being just another form of (c) or (d), have been rebuffed.

I have much simplified the detailed legal argument on both sides of this question, but the key point is that the meaning of (b) increasingly splits the electoral legal world into two contradictory camps.

A growing handful of people have therefore been left in an invidious position where they have got contradictory advice from council legal officers and the Electoral Commission on whether or not they are qualified to stand. In one case, the Electoral Commission even changed their advice part way through a dispute. In another case, a new legal officer taking up post resulted in someone being advised they couldn’t stand even though this ran counter to previous advice.

Because of the huge expense of taking a test case to the courts, in all cases either someone has robustly stood their ground and dared the council or others to run up expensive legal bills to argue that they aren’t qualified, or they’ve gone for the quiet life of not taking a risk and pulling out, even though it’s far from clear that they are not allowed to stand. Either way, not terribly satisfactory.

That is one reason why, over a period of time, I persistently lobbied the Electoral Commission to come up with clear, written advice on the matter – and advice that they would be willing to stand by if queried. After protracted delays, advice was issued at the last moment for this year’s elections, with a circular being sent out on 1 May.

The circular is careful to circumscribe what the Commission believes is clear and what is left to judgement:

9. The person must occupy ‘land or other premises’. The Commission considers that the inclusion of the words ‘other premises’ to be taken as something other than land, i.e. some form of structure. Because ‘land’ and ‘other premises’ are alternatives it is, in theory, possible for a person to satisfy this provision by occupying land only. There are some structures which might, arguably, fall outside the term ‘premises’ (e.g. tent, caravan, house boat, mobile home). However, a person occupying such a structure need only establish occupancy of the land on which his or her tent (for example) is located.

10. If land or premises is divided by an area boundary, the land/premises is ‘in that area’ with respect to both areas demarcated by the boundary.

11. The person must occupy the ‘land or other premises’ as an ‘owner’ or ‘tenant’. Ownership may be established by showing title to the land or premises in question. Tenancy is established by showing a lease over the land. In various circumstances, a lease will survive despite having expired and the parties failing to sign a new lease – the tenancy survives through tacit agreement between the parties. Therefore there may be circumstances in which a person’s tenancy of land or premises might need to be established by evidence other than a current lease.

12. The person must have ‘occupied’ the land or premises. Therefore, in addition to establishing legal ownership or legal tenancy, the person must establish that they have occupied the land or premises. This is a question of fact in each case. Having regard to case law on the meaning of the term ‘occupy’ in other contexts, we do not believe it is necessary for a person to be personally resident on the land or premises (this is in any event covered by s79(1)(d)). However, we consider that it requires something to be actually done on the land or premises – an empty unlocked house can not be described as ‘occupied’. It also requires a sufficient degree of control to prevent strangers from interfering with the land or premises. If a person has sublet their land or premises to another person this will point against them having ‘occupied’ it themselves.

13. The person must have occupied the land or premises ‘during the whole of the twelve months preceding’ the day on which the person nominates for candidacy. People leave their residence for extended periods for holidays or other reasons, how long an absence will prevent a person from claiming they have occupied the land or premises for the preceding year should be worked out by reference to all other factors. For instance, whether the person has allowed others to occupy the land or premises in the person’s absence, and the reason the person has been absent.

14. For example, a person who is absent from their home for 2 months, caring for an elderly parent, might be considered to have retained occupancy of the land or premises for the purposes of the legislation – while a person who is absent for 2 months, because they have relocated to an alternative residence, and who leases their home while they are away from it should not be considered to have retained occupancy for the purposes of the legislation. Whether an extended absence during a 12 month period precludes qualification is necessarily worked out on a case by case basis.

This circular is significantly different from previous Electoral Commission advice and, overall, the tenor of it moves towards a more restrictive view of what (b) permits, but it is far from being clearly defined or easy to understand. What does “something” in paragraph 12 mean, for example?

An unfortunate effect of the Commission’s delay in setting down its revised views is that the chance to use the latest round of electoral law changes in Parliament to tidy up the situation has been missed.

So beware if you or anyone you know stands in future relying solely on the (b) qualification. Because if asked, “So what does this mean?” the answer is: “Lots of people disagree and we’re waiting for an expensive test case to find out”.