The role of the Returning Officer

Mark Heath examines the legal status of the Returning Officer for those running the General Election on 8 June.

At the heart of every General Election are the voters, closely followed by the candidates. The glue, holding it all together and making it happen is the Acting Returning Officer and his/her team.

As I said in my first article, The Representation of the People Act 1983 governs the UK Parliamentary election on 8 June and, whilst the Returning Officer role for county constituencies will be held by the High Sheriff and for borough constituencies the relevant district chairman or the (Lord) Mayor of that borough or city, this is a ceremonial role, confined to the optional duties of receiving and returning the writ and declaring the result. The substantive duties are carried out by the Acting Returning Officer who is the appropriate Electoral Registration Officer: section 28 Representation of the People Act 1983. For the rest of this article, I shall describe for ease the Acting Returning Officer as the Returning Officer.

The starting point for understanding the role of the Returning Officer on June 8th is Section 23(2) Representation of the People Act 1983 which states:

“It is the returning officer's general duty at a parliamentary election to do all such acts and things as may be necessary for effectually conducting the election in the manner provided by those parliamentary elections rules.”

This sets out the general duty of the Returning Officer and should always be borne in mind in discharging all functions and duties relating to the conduct of the election.

The Electoral Commission’s advice on the role for June 8th is also helpful. They say:

“Your duties as (A)RO are separate from your duties as a local government officer. As (A)RO you are not responsible to the local authority but are directly accountable to the courts as an independent statutory office holder” (para 3.14, Part A – (Acting) Returning Officer role and responsibilities, UK Parliamentary elections in Great Britain: guidance for (Acting) Returning Officers (April 2017)).

The status of the Returning Officer is crucial. It is distinct and separate from the substantive role that the post holder will also hold and is delineated by the duties that Parliament requires of the individual. This has been reflected by the courts who have been at pains to acknowledge the role and status of the Returning Officer. In R (de beer) v Balabanoff (2002)EWHC 670(admin), Scott Baker J said:

“I have considerable sympathy with the returning officer, who was in a very difficult position…..he had to apply the law without fear or favour, giving even treatment to every candidate, whether a single individual or member of a large or small party. There is no scope for bending the rules in what seem or may seem meritorious cases. For example, there is no discretion to accept a nomination paper received just after the deadline has expired, or indeed to accept a certificate under r 4A(1) just after the deadline has expired.

….

It is, in my judgment, important to keep in mind the role of the returning officer in the election process. He is in a sense the referee. He is there to see fair play and to ensure that the rules are complied with. As a matter of policy, it seems to me, the fewer occasions on which he is called upon to exercise questions of judgment and thereby lay himself open to criticism by one or more of the candidates the better. This is particularly pertinent if the exercise of judgement were to go outside issues that can readily be resolved by looking at a document or documents, and which involves weighing up facts or surrounding circumstances”

So, what does this mean?

Their legal status is clear and unique. They are completely separate from their council. They and they alone are responsible for the conduct of the election in their area.

This can seem onerous, but in my view the consequence of understanding the role is that Returning Officer should be confident in discharging their duties:

• the law gives the Returning Officer their role, status and authority and thus the authority and hence confidence to act. They must apply the law fearlessly and without favour, they must act without reference any loyalties or relationships they have from their substantive role and they must follow the legal framework precisely. The law leaves little room for discretion. In particular, the timetable is tight;
• their accountability is clear. It is not to their council but to the courts. They are a servant of the act. They can be sued and it will be their name on any legal proceedings;
• as the employer of staff for the election, for example those that serve in the Polling Stations and on the count, the legal obligations that flow from that (health and safety, employment law issues etc) as well as HMRC “Real time” tax requirements and the obligation to offer a pension fall on the Returning Officer. However they also get to choose their staff, motivate their staff, support their staff and grow their staff. These are their people;
• Returning Officers are entitled to expect the support of their council and make use of their resources, for example communications experts, the council’s IT team and their lawyers (if they are not a lawyer);
• following the awful events in Manchester, security will need to be revisited for 8 June. The Returning Officer will have the support of the local constabulary and will no doubt discuss with them any changes or revisions to arrangements they will be making, but will also wish to review their internal security arrangements at polling stations and at the count venue;
• in the light of section 106 of the Representation of the People Act 1983 and the very public outcome of Watkins v Woolas [2010] EWHC 2702 involving the May 2010 General Election in the Oldham East and Saddleworth constituency, allegations and counter-allegations may be made within and about the campaign. Returning Officers must guard against being drawn inappropriately into such matters;
• the recent case of R (on the application of Wilson) v Dover District Council (2016) EWHC 2556(Admin) draws out a key point. The case involved a challenge to the Returning Officer’s decision to declare a nomination paper invalid. Whilst the court was clear that the Returning Officer and his staff had no duty to go beyond what the law required them to do, the detail of contact with the candidate such as notes of briefings and so forth clearly presented an impressive picture to the court of the manner in which the matter was handled, and can only have been laid before the court in such a compelling way by being duly recorded at each step. Be confident not only about your decisions, actions and advice, but also be confident to keep a record of them (and be seen to do so). Keep accurate records of what you and others say and do. Doing so demonstrates confidence in yourself and your approach and will be invaluable in any challenge.

For the sake of completeness, I must again mention section 46 Electoral Administration Act 2006 as a useful saving provision that allows the Returning Officer to correct many procedural errors.

Other legal provisions that Returning Officer should be mindful of include Section 67 of the Electoral Administration Act 2006. This provides the Electoral Commission with a permissive power (inserted as s 9A of the Political Parties, Elections and Referendums Act 2000) to define and publish performance standards for the administration of elections by returning officers and electoral registration officers. Details of the standards can be found on the Electoral Commissions website. Returning officers will use them, of course, as part of their planning and project delivery arrangements to help ensure that the service they deliver is of a high standard.

The Electoral Registration and Administration Act 2013 inserted Section 29A into the Representation of the People Act 1983 which allows the Secretary of State, on a recommendation by the Electoral Commission, to withhold or reduce a returning officer’s fee for reasons of poor performance. Sub-section 3 sets out the factors to which the Commission must have regard when making such a recommendation, one of which is an assessment of their performance against the performance standards.

Those who undertook this role in 2010 will recall queues at polling stations and the interest shown in that issue. As a result the Electoral Registration and Administration Act 2013 Section 19 amended Rule 37 to provide that a voter who at the close of the poll is in the polling station, or in a queue outside the polling station shall (despite the close of the poll) be entitled to apply for a ballot paper.

Concern was expressed in the past as to how long counts take. As a result, the Constitutional Reform and Governance Act 2010 Section 48 amended the Rules and Rule 45(3A) now states:

“The returning officer shall take reasonable steps to begin counting the votes given on the ballot papers as soon as practicable within the period of four hours starting with the close of the poll.”

In addition, the 2010 Act also inserted Rule 53ZA which states that if the Returning Officer is unable to comply with the requirement in Rule 45(3A) then they must, within 30 days, prepare and publish a statement explaining why and send that statement to the Electoral Commission.

Most Returning Officers are aware of and work hard to encourage participation. That can bring Returning Officers into conflict with those contesting the election who can see such actions as interference (or worse “politicking”). But this is a legal duty, see Section 69 Electoral Administration Act 2006. There had previously been some uncertainty as to whether or not a local electoral officer (a collective term defined by s 69(8) as either an electoral registration officer or a returning officer at a Parliamentary, European or local election), had the power actively to encourage people to register for and/or vote at an election. Section 69 ended that uncertainty. It also complements the work of the Electoral Commission, which runs its own campaigns to increase participation.

The role of the Returning Officer is set by law. As a consequence, the law is the Returning Officer’s shield and sword.

The Returning Officer who follows it cannot be successfully challenged, but departs from it at their peril. The Returning Officer should be confident in their approach, they have the authority as well as the responsibility, the law is with them as are the courts.

Mark Heath is a Consultant with Veale Wasbrough Vizards. He is also the Returning Officer for Southampton.