Jersey Unreported Judgments

Elections - reasons - candidature of Sarah Westwater.

[2018]JRC085

Royal Court

(Samedi)

14 May 2018

Before     :		J. A. Clyde-Smith, Esq., Commissioner, and Jurats, Olsen and Blampied
Between	Her Majesty's Attorney General		Representor
And	Sarah Westwater		First Respondent
And	Gregory Guida		Second Respondent
And	Kirsten Morel		Third Respondent
And	Anita Barker		Fourth Respondent

IN THE MATTER OF THE PUBLIC ELECTION TO THE OFFICE OF DEPUTY OF THE PARISH OF ST LAWRENCE

AND IN THE MATTER OF ARTICLE 20 OF THE PUBLIC ELECTIONS (JERSEY) LAW 2002

M. Temple, Esq., Solicitor General for Her Majesty's Attorney General

judgment

the COMMISSIONER:

1.        On 26^th April, 2018, the Court confirmed the candidature of the first respondent, Sarah Westwater, and we now set out our reasons.

2.        The application of the Attorney General was made in the context of an election for the two offices of Deputy in the Parish of St Lawrence ordered by the Court on 23^rd March, 2018, to take place (amongst other elections) on 16^th May, 2018, pursuant to Article 17(1) of the Public Elections (Jersey) Law 2002 ("the 2002 Law") and in order to fulfil the requirements of Article 6 of the States of Jersey Law 2005.

3.        In accordance with Article 18(1) of the 2002 Law, a person shall be admitted as a candidate for the public election of a Deputy only if he or she has been duly proposed and seconded at a meeting of persons entitled under Article 2(2) of the 2002 Law to vote at a public election for the deputy in the relevant parish.  Such a nomination meeting for the election was convened by the Connétable of the Parish by notice dated 29^th March, 2018, and held on 11^th April, 2018, at 7:15pm in the Parish Hall ("the Nomination Meeting").

4.        Article 20(4) of the 2002 Law provides that the nomination of a candidate for a public election shall be made by the production to a nomination meeting of a document subscribed by a proposer and nine seconders, all ten of whom shall be persons entitled to vote for that candidate in any poll held for the election.

5.        Article 20(4A) of the 2002 Law provides that a prospective candidate may indicate his or her wish to have his or her endorsement by a registered political party entered on the ballot paper, by complying with Article 20(4B).

6.        Article 20(4B) provides that before the nomination document is subscribed by a proposer and nine seconders -

"(a)     the prospective candidate shall complete a declaration, which shall be contained in that document, of the registered political party by which he or she is endorsed, indicating whether the registered name, or the registered abbreviation (if any) of the name, of the party is to be entered on the ballot paper; and

(b)       the declaration shall be signed by -

           (i)         the prospective candidate, and

(ii)        2 persons (of whom one may be the prospective candidate) who are registered officeholders of the registered political party."

7.        Article 20(4C) of the 2002 Law provides that a prospective candidate who wishes to have his or her endorsement by a registered political party entered on the ballot paper need not be a member of that party.

8.        Article 20(4D) of the 2002 Law provides that a declaration made in accordance with Article 20(4B) of the 2002 Law cannot be withdrawn after the document in which it is contained has been produced to the nomination meeting in accordance with Article 20(4) of the 2002 Law.

9.        At the Nomination Meeting, which was presided over by the Connétable as the electoral administrator for the Parish, Sarah Westwater was proposed and seconded for the office of Deputy for the Parish of St Lawrence, there being produced to that meeting for the purposes of Article 20(4) of the 2002 Law a nomination form for her subscribed by a proposer and nine seconders ("the Form").  Two other candidates were proposed and seconded at the Nomination Meeting, namely Gregory Guida and Kirsten Morel.  There being three candidates for two offices the election is to proceed by way of a poll in accordance with the order of the Court of 23^rd March, 2018, and the 2002 Law.

10.      The Form, when presented to the Nomination Meeting, had the section headed "Political Party Declaration" completed and signed by Sarah Westwater stating that her candidacy is endorsed by the Reform Jersey party.  The date of Sarah Westwater's signature is given as 5^th April, 2018.  The declaration was countersigned by Anne Southern and by Deputy Mézec as two officers of the Reform Jersey party, with the date 8^th April, 2018 by the signature of Anne Southern and the date of 11^th April, 2018, by the signature of Deputy Mézec.

11.      The Attorney General's representation recites that there was evidence that the requirements of Article 20 of the 2002 Law have not been followed in the case of the endorsement of Sarah Westwater, but there was no evidence (at that time) to show that any of the subscribers were unaware that she was a Reform Jersey candidate.  The Attorney General's representation concluded at paragraph 16:-

"Nominating a candidate for a public election is serious business.  However, in circumstances where on the evidence available to the Attorney General:

(a)       the subscribers to the Form were aware that the Candidate was standing for Reform Jersey; and

(b)      by the time of the Nomination Meeting the signatures of both party officers had been inserted on the Form;

the Court may take the view that this failure to comply with the requirements of the 2002 Law is not a matter of substance."

12.      On 20^th April, 2018, the Court ordered that the Attorney General's representation be heard as a cause de brièveté and convened Sarah Westwater and the two other candidates, together with the Parish Secretary of St Lawrence, Anita Barker.  The Court also ordered that the proposer and the seconders write to the Attorney General confirming whether, when he or she proposed or seconded (as the case may be) Sarah Westwater, he or she knew that Sarah Westwater was endorsed by the Reform Jersey party.

13.      The hearing took place on 27^th April, 2017, and the Court heard evidence from the Parish Secretary, the proposer, six of the seconders and Sarah Westwater.  It also heard evidence from Deputy Mézec.

14.      We were satisfied that all of the witnesses gave truthful evidence and accordingly we do not think it necessary to set out what each witness told us, but propose simply to record our findings based on the evidence which they gave us. The Court found the facts to be as follows:-

(i)        On 28^th March, 2018, Sarah Westwater completed the Political Party Declaration in the Form, declaring that her candidacy was endorsed by Reform Jersey, and dated it the 5^th April, 2018, being the date of the launch of the Reform Jersey manifesto.  It had not, at that stage, been signed by two officers of Reform Jersey.

(ii)       At a Cubs' meeting on the evening of 28^th March, 2018, two people she knew, John Baudains and Ami-Jane Ball, signed the Form as seconders.  Understandably, they were unclear as to the extent to which the Political Party Declaration had been completed, but John Baudains could not recall Sarah Westwater saying she was endorsed by Reform Jersey, and Ami-Jane Ball said she did not know about Reform Jersey.  Both were aware of Sarah Westwater's political views.  John Baudains was still happy to endorse her candidature.  Ami-Jane Ball thought she would not have signed as seconder, because she did not understand about Reform Jersey, but she would still have voted for Sarah Westwater.

(iii)      On 5^th April, 2018, the night of the launch of the manifesto of the Reform Jersey party, Sarah Westwater handed the Form to Deputy Tadier for him to obtain the signatures of two officers of Reform Jersey.

(iv)      Anne Southern signed the Political Party Declaration on 8^th April, 2018.

(v)       On 9^th April, 2018, Jason Cronin took the Form to the Parish Secretary to check that the proposer and seconders were all electors entitled to nominate Sarah Westwater.  At that time, the Form had been signed by him as proposer and by nine seconders, but the Party Political Declaration had still only been signed by one officer of Reform Jersey.  He told us that he had signed as proposer after the nine seconders.  In this respect we note in passing that in HM Attorney General v Pearce [2007] JRC 223A, the Court urged all those approached to second a nomination to insist that the proposer had signed first, so that there was a proper proposal which they could second.

(vi)      The Parish Secretary took a copy of the Form, and on her copy put an asterisk against the second required signature under the Party Political Declaration and against one of the seconders, Christine Harvey, who was not entitled to act as a seconder.

(vii)     On 11^th April, 2018, the date of the Nomination Meeting, Deputy Mézec signed the Party Political Declaration as an officer of Reform Jersey.  He acknowledged that he should have signed the Form on behalf of Reform Jersey much earlier, but explained that it was an honest mistake at a time of very considerable pressure.

(viii)     A matter of minutes before the start of the Nomination Meeting, Deborah Coleman signed as a seconder in place of Christine Harvey.  Deborah Coleman had been asked to act as a seconder by a text on 6^th April, 2018, which made it clear that Sarah Westwater was "a Reform candidate".  She told us that she had not taken this on board, and did not realise that Sarah Westwater was endorsed by Reform Jersey until after she had signed.  She said that if she had known, she would not have signed.  She had not seen the Party Political Declaration which at that stage would have been fully completed and witnessed. 

(ix)      The proposer and the other seconders were all fully aware that Sarah Westwater was endorsed by Reform Jersey.

15.      It was clear that Article 20(4B) had not been complied with, not least because the proposer and eight of the seconders had signed before Deputy Mézec.  The requirement was for the Party Political Declaration to be signed by Sarah Westwater and two officers of Reform Jersey before the proposer and the nine seconders signed.  Furthermore it transpired that contrary to the initial understanding of the Attorney General, three of the seconders said that they did not know that Sarah Westwater was endorsed by Reform Jersey.

16.      There was discussion about the jurisdiction being exercised by the Court and whether the Court could confirm the candidature of Sarah Westwater if it determined that there had been breaches of Article 20(4B).  There had been insufficient time for the Solicitor General to have researched and considered these issues, but he suggested that the Court put the issue of its powers to one side, and concentrate on whether it considered the breaches to be of substance.  In his view and having heard the evidence, they were, and the candidature should therefore be set aside.

17.      If the candidature of Sarah Westwater was set aside, that would mean the automatic election of the other two candidates, as there would then be two candidates for two offices, but they both made it clear that they did not want to succeed to office as deputies on that basis.  They both felt strongly that there should be a poll.

18.      The Court considered appointing an Amicus Curiae but pre-polling was due to start on the 30^th April, 2018, and the matter could not be adjourned.  The Court had no option but to proceed to make a determination without sufficient research having been carried out and without the benefit of adversarial argument.

Decision

19.      It was not suggested by the Attorney General and we were satisfied that there was no question here of Sarah Westwater attempting to mislead the proposer and seconders.  We find that she acted at all times in good faith.  This was the first time that she had put herself forward for election to public office, and she was not assisted by the Form, which does not make it clear that the officers of the political party must also sign the Declaration before the proposer and the seconders.

20.      Under Part 10 of the 2002 Law, under the heading "Disputed Elections", Article 57(1) provides that "every case of a disputed public election shall be dealt with by the Royal Court." There is no equivalent provision for issues which arise prior to polling being dealt with by the Court, but the election was ordered by the Court and there can be no serious question as to the jurisdiction of the Court to deal with issues arising in the nomination process in advance of the poll, that jurisdiction arising inherently out of the necessity to ensure the proper conduct of the election it has ordered - see Mayo v Cantrade [1998] JLR 188.  We note that the Court accepted jurisdiction to declare the nomination of Darius Pearce invalid prior to polling in HM Attorney General v Pearce. 

21.      There is provision under Article 23 of the 2003 Law to deal with the withdrawal, disqualification or death of a candidate between nomination and polling, in which events Article 23(2) gives the Court a very wide discretion to make appropriate orders:-

 ".......the Court may make such order as it thinks fit in all the circumstances of the case, whether an order that the election proceed despite the withdrawal, disqualification or death, an order annulling the proceedings already taken, a fresh order under Article 17 for an election in the constituency, or any other order (whether instead of or in addition to those orders)".

22.      Although Article 23 does not directly address issues arising in the nomination process, it would suggest the use of a wider as opposed to a narrower discretion when the Court is exercising its inherent jurisdiction to ensure the proper conduct of the election.

23.      Our approach to the issue before us was to first consider the intention of the legislature in enacting Article 20(4B), which we construed in this way:-

(i)        The candidate must sign a declaration that he or she is endorsed by the named political party whose name will be entered on the ballot paper, so that it is clear to the proposer and seconders that this is the case.

(ii)       Two officers of the political party must sign the declaration confirming that the candidate is indeed so endorsed, so that it is clear that the endorsement has been formally acknowledged by the political party named.

24.      The two mischiefs which the Article is aimed to address, therefore, are candidates who do not declare to the proposer and seconders that they are endorsed by a political party and candidates who make that declaration when the party concerned has not in fact endorsed them.

25.      Initially the evidence of the three seconders John Baudains, Ami-Jane Ball and Deborah Coleman, caused us considerable difficulty, but there were two features of the case which ultimately enabled the Court to uphold the candidature. 

26.      Firstly, the Court accepted the evidence of Sarah Westwater that she did complete and sign the Party Political Declaration on 28^th March, 2018, before anyone else had signed it.  It may have been dated 5^th April, 2018, but it would have been clear from the Form that her candidacy was endorsed by Reform Jersey.  Importantly, that declaration was there to be seen when John Baudains and Ami-Jane Ball signed as seconders.  When Deborah Coleman came to sign on 11^th April, 2018, the Party Political Declaration had by then been signed by both officers of Reform Jersey, and again, the declaration was there to be seen.  Accordingly, for all three seconders, namely John Baudains, Ami-Jane Ball and Deborah Coleman, whatever their understanding may have been, the Form did make it clear that Sarah Westwater was endorsed by Reform Jersey; the declaration to that effect had been made.

27.      Secondly, whilst the officers of Reform Jersey did not sign the Party Political Declaration, in the case of Deputy Mézec until 11^th April, Reform Jersey had indeed agreed to endorse the candidature of Sarah Westwater.

28.      Thus, the two purposes underlying Article 20(4B) had been fulfilled, in that, firstly, Sarah Westwater had declared her endorsement by Reform Jersey prior to the proposer and seconders signing, and secondly, Reform Jersey had agreed to endorse her candidature, albeit that the strict order in which the Form was required to be completed had not been complied with.

29.      The facts of the case before us were far removed from those in HM Attorney General v Pearce.  In that case, two people had signed the form as seconders, thinking that they were seconding Darius Pearce as candidate for the office of Connétable of St Helier.  The name of the candidate on the form was, however, left blank.  Darius Pearce changed his mind about standing, and handed the form over to Neil Jones, who then obtained the signatures of the remaining seconders.  He then changed his mind about standing, and handed the form back to Darius Pearce, who decided that after all he would stand.  Sir Michael Birt, then Deputy Bailiff, said this at paragraph 25.

"Secondly, we have to say that the evidence in this case discloses a lamentable approach to the serious business of nominating a candidate for a public election.  We acquit Mr Jones and Mr Pearce of any deliberate plan to mislead.  We accept that events unfolded against a background of genuine changes of mind by both of them.  Nevertheless, the fact remains that Mr Jones was willing to accept a nomination form signed by two people who had clearly signed it when they thought Mr Pearce was the candidate, not Mr Jones.  More significantly, Mr Pearce was willing to submit a nomination form to the nomination meeting in circumstances where he knew that five of the signatures had been obtained by Mr Jones at a time when Mr Jones was the proposed candidate, not Mr Pearce.  It should therefore have been obvious to Mr Pearce that he could not properly rely upon those signatures.  The form appears to have been passed around as if in a game of 'pass the parcel'.  It was highly unsatisfactory.

26.      Thirdly, we deprecate the fact that persons were asked to sign the nomination form at a time when the details of the candidate whom they were being asked to support had not been inserted on the form."

30.      Whilst in advance of the poll the Court is concerned with the rights of the candidates to be nominated for election, it is not just a narrow contest between the candidates, as it takes place in the context of a public election.  The rights and interests of the electorate of St Lawrence have to be taken into consideration and weighed in the balance.

31.       Article 3 of the First Protocol of the European Convention on Human Rights (ECHR) is in the following terms:-

"Right to free elections

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinions of the people in the choice of the legislature."

32.      In a number of judgments emanating from the European Court of Human Rights, it has been held that notwithstanding Article 3 being phrased in terms of contracting states, it guarantees individual rights including the right to vote and stand for election (see Kovach v Ukraine (4) [2008] ECHR 125).

33.      Declaring the candidature of Sarah Westwater invalid would reduce the choice before the electorate of St Lawrence in this election, and in this particular case, lead to there being no poll at all.  Reducing the choice before the electorate was not in their interests and was a serious step to take; that could only be justified by substantive breaches of the 2002 Law.

34.      Article 4 of the Human Rights (Jersey) Law 2000 provides that in so far as it is possible to do so, legislation should be read and given effect in a way which is compatible with Convention rights, and in our view, it would be disproportionate and incompatible with the rights and interests of the electorate of St Lawrence to reduce the choice of candidates available to them, when the purposes underlying Article 20(4B) had been fulfilled.

35.      A further argument could be advanced.  When an election has taken place, the Court has the power, under Article 61 of the 2002 Law to declare the election void and a casual vacancy in the office left if inter alia "the Court finds that the candidate's nomination did not comply with the requirements of this Law."  Article 61(3) goes on to provide:-

"(3)     Notwithstanding paragraph (1)(b), if the Royal Court considers that any defect in a candidate's nomination is not a matter of substance and has not affected the result of the election, the Court shall not make a declaration under paragraph (1)".

36.      It is arguable that if the Court has the power to overlook defects in a candidate's nomination which it does not regard as a matter of substance after an election has taken place, then, implicitly, it has the same power to do so after a nomination meeting but before the poll.

37.      For all these reasons, we concluded that the breaches of Article 20(4B) of the 2002 Law in this case were not substantive.  Sarah Westwater had been duly proposed and seconded and her nomination was valid.

38.      We recommend that the nomination form be amended to make it clear that the two officeholders of the political party also have to sign the Political Party Declaration before the document is subscribed by the proposer and seconders and that the signatures of the proposer and seconders be dated.

Authorities

Public Elections (Jersey) Law 2002. 

States of Jersey Law 2005. 

HM Attorney General v Pearce [2007] JRC 223A. 

Mayo v Cantrade [1998] JLR 188. 

European Convention on Human Rights. 

Kovach v Ukraine (4) [2008] ECHR 125. 

Human Rights (Jersey) Law 2000