Jersey Unreported Judgments

Elections - representation to consider postponement.

[2021]JRC213

Royal Court

(Samedi)

17 August 2021

Before     :

J. A. Clyde-Smith O.B.E., Commissioner, and Jurats Ronge and Dulake

 

The Representor appeared in person.

Advocate G. G. P. White for the Respondent.

judgment

the COMMISSIONER:

1.        On 23^rd July 2021, Susan Pearmain, Procureur du Bien Public of the Parish of St Clément ("the Procureur") brought a representation asking the Court to consider whether the election for the office of Connétable of the Parish of St Clément should proceed on Wednesday, 28^th July 2021 or be postponed, because of concerns that the effect of the coronavirus pandemic might lead to a challenge as to the election not being free and fair.

2.        In summary, the Procureur's representation was as follows:

(i)        The Court had ordered the election to proceed on Wednesday 28^th July 2021, pursuant to Article 17 of the Public Elections (Jersey) Law 2002 ("the 2002 Law") following the vacancy created by the death on 1^st June 2021 of the late Connétable Leonard Norman.

(ii)       Two candidates had been nominated, namely Marcus Troy and Simon Bree for election to the single office thereby necessitating a poll.

(iii)      Pursuant to Article 4 of the Connétables (Miscellaneous Provisions) (Jersey) Law 2012, the Procureur was exercising the functions of the Connétable, including the function of Electoral Administrator, for the purposes of Article 17A of the 2002 Law.  Concerns had been expressed to her about the public health situation in Jersey and therefore in the Parish occasioned by the coronavirus pandemic and the then current very significant and rising number of confirmed active cases of Covid-19 in the Island and the restrictions now in place, pursuant to legislation made under the Covid-19 (Enabling Provisions) (Jersey) Law 2020.

(iv)      The Procureur had brought these issues to the Court in the neutrality of her role as Electoral Administrator in view of these concerns with the intention of avoiding the possibility of any challenge to the results of the election as not being a free and fair election of the people of the Parish for their Connétable.

(v)       The Procureur and the Parish Secretary had met with the appointed Autorisé and the Judicial Greffier to consider matters of safety surrounding the voting process and appropriate guidance and advice had been taken from the Public Health Inspectorate as to the physical arrangements for the Parish Hall on polling day for the presence of the officials and the Parish staff at the Parish Hall and for voters to attend to cast their votes.  Mask wearing would be mandatory, and physical distancing measures and sanitization measures would be strictly adhered to, in order to allow voting and then the counting of ballots after the poll.  Guidance had also been obtained as to the requirements for protective personal equipment and the approach to taking the votes of those who are ill and unable to attend the polling station.  The Procureur was satisfied that arrangements for voting were as good as the Procureur and the others involved in planning them could make.

(vi)      The Procureur was concerned as to the inability to hold the traditional hustings to allow the electorate to have sufficient knowledge of the candidates for election and to make an informed decision as to whom to cast their votes.  Hustings instead took place by Zoom, with parishioners asked to provide questions in advance, either via the video link itself or to have their question read out by the Procureur, who chaired the meeting.  The video was then placed on the vote.je website.  The Procureur informed the Court at the hearing that in her view the hustings had gone well.

(vii)     Simon Bree was concerned that in spite of all these arrangements, the risk of contact with those infected with Covid-19 and the risk of thereby contracting Covid-19 would deter voters from attending the polling station to cast their ballots.  He anticipated absenteeism from those who believed the risks of attending the polling station to vote in the election would be too great and would distort the democratic process.  In his view, the election should be delayed.  The other candidate, Marcus Troy, did not agree that the circumstances warranted any postponement of the poll.  Both candidates attended the hearing and confirmed those views.

(viii)    If the Court were to postpone the election, the Procureur was in a position to exercise the functions and duties of the Connétable, other than to attend the States of Jersey which were in any event going into recess for the summer. 

(ix)      The Procureur was aware that a number of individuals had already voted by post or pre-poll and any postponement would have to take that into account.

The law

3.        Article 17(1) and (2) of the 2002 Law is in the following terms:

"17     Order for election

(1)       The Royal Court shall make an order for the holding of a public election when such an election is required under Article 6 of the States of  Jersey Law 2005, Article 3 of the Centeniers (Terms of Office (Jersey) Law 2007 , Article 2 or 3 of the Connétables (Jersey) Law 2008 or Article 3 of the Procureurs du Bien Public (Terms of Office (Jersey) Law 2013.

(2)       The order shall -

(a)   Fix the day (being a Wednesday or, instead, such other day of the week as the States may prescribe by Regulations) for taking the poll if a poll becomes necessary, that day being not earlier than the day falling 38 days after the date when the Court makes the order;

(b)   Appoint a Jurat or other public official as Autorisé for the poll in each electoral district;

(c)   Fix the time, and the date, when the persons elected shall appear in the Court to take their oaths; and

(d)   Direct the Autorisé to deliver a return about the election to the Court."

4.        Where the Autorisé is unable to discharge the duties of that office, the Royal Court has a power under Article 17(3) to appoint another person in his or her place, but there is no express power to postpone the day fixed for the poll pursuant to Article 17(2)(a).

5.        In a helpful written submission prepared by Advocate White at extremely short notice, he argued that the Court had an inherent power to vary orders made under Article 17(2).  The Court accepted that submission.  The Court's express powers to make orders under article 17(2) were supplemented by an inherent jurisdiction to vary those orders, so as to perform its role as a court of justice - see Such v AG [2013] (2) JLR 301.

6.        Article 17(2) envisaged four matters to be ordered, namely the fixing of the date for a poll when a poll becomes necessary, an order appointing a Jurat or other public official as Autorisé, an order fixing a time and date when the persons elected shall appear in the Court to take their oaths and an order directing the Autorisé to deliver a return about the election to the Court.

7.        The Court has in the past routinely varied the date when a candidate elected should appear to take the oath, where that candidate has been declared elected unopposed at a nomination meeting.  Similarly, whilst an Autorisé might be able to discharge his or her duties of office, the Court has routinely appointed a different Jurat where circumstances arise in which the better management of the electoral process makes it convenient to do so or for the better management of the Court's cases.  The threshold for the making of such variations is low.

8.        However, when a public election had been ordered and an order made fixing the date of the poll, the threshold for varying that order and substituting a different date is a high one.  The holding of the poll in a public election is at the heart of the democratic process.  Article 3 of the First Protocol of the European Convention of Human Rights is in the following terms:

"Right to free election

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

9.        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 [2008] ECHR 125).

10.      When a public election had been ordered and an order made fixing the date of the poll, these rights on the part of the electorate of St Clément are engaged and it would require serious circumstances to compel the holding of the poll on a different day, akin to force majeure. An example of a circumstance of force majeure arising might be a "stay-at-home" or "lockdown" order under the Covid-19 (Enabling Provisions) (Jersey) Law 2020.

Decision

11.      Advocate White submitted, and the Court agreed, that in this case the threshold for postponing the poll had not been met for the following reasons:

(i)        Whilst there was a need to be cognisant of the workplace restrictions in legislation currently in force, as well as the guidance of the public health inspectorate, a thorough assessment had been undertaken, and arrangements would be put in place to achieve the safe functioning of the Parish Hall as the place chosen as the polling station for the election, for the safe conduct of pre-polling at the tribunal offices in St Helier and for the collection of the votes of those electors who are confined to their homes owing to illness or disability.

(ii)       Whilst it was true that there was a resurgence in active cases of Covid-19 in the Island, and that the number of such cases was rising significantly, causing a great deal of concern and anxiety, most amenities are currently open to the public, people are able to shop, eat at restaurants and drink in public houses.  In short, the legislature/government have essentially deemed that people can go about their ordinary business, subject to certain limited restrictions. 

(iii)      Whilst some people might be deterred from exercising their rights and freedoms by anxiety, in any election there were always reasons why people may choose not to go to the polls.

(iv)      A relatively low turnout of the electorate would not necessarily be taken as indicative of the election having been other than free and fair and fear of a relatively low turnout is not sufficiently serious to warrant the postponing of an election date that had been ordered by the Court.

(v)       Electors will be free to attend the Parish Hall which will have full provision for sanitation and has sufficient space outside and inside for physical distancing of those waiting and those voting, with a legal requirement to wear face masks when they proceed inside to be given their ballot papers (albeit that they may temporarily remove their face mask if their identity needs to be verified) and vote.  Those housebound may request that the vote may be taken at their home.  Circumstances would have to be very different for there to be something akin to force majeure, impeding an election in accordance with the 2002 Law.

(vi)      Although hustings are traditionally held in Jersey at public meetings open to all of the electorate, they are not the only means by which the candidates may put across their policies and principles to the registered electors.  Hustings have taken place and were to take place by Zoom video conference, with the recording placed on a video to view afterwards on the vote.je site.  Although some people are excluded by technological advances from using video-conferencing technology themselves, there is no legislative prevention or indeed guidance in force against visiting other people in their homes.  Whilst there are limits on the number of people who may gather indoors (currently 10) that would not prevent a family member, friend or neighbour from assisting a person to view the hustings, whether live or otherwise.  Hustings are not, in any event, provided for in the 2002 Law, and should not, therefore, be a determinative factor as to whether the requirements of the 2002 Law have been satisfied in a particular election.

(vii)     The election is not only to parochial office, but also for an ex officio seat in the Island's legislature.  The view of the Attorney General, which we accepted, was that the holding of online hustings cannot be said to prevent the election being held in conditions which ensure the election as a free choice of the people in their Connétable as the Parish's representative in the legislature.

12.      The threshold not being met, the Court did not have to grapple with the issues that would arise if the poll date was to be postponed, including issues as to the candidates' election expenses (pursuant to the Public Elections (Expenses and Donations) (Jersey) Law 2014) if there were more weeks of campaigning and the issue of the votes already cast by post or pre-poll. 

13.      For these reasons, the Court declined to order a postponement of the poll.

Authorities

Public Elections (Jersey) Law 2002. 

Connétables (Miscellaneous Provisions) (Jersey) Law 2012. 

Covid-19 (Enabling Provisions) (Jersey) Law 2020. 

Such v AG [2013] (2) JLR 301.  

European Convention of Human Rights. 

Kovach v Ukraine [2008] ECHR 125. 

Public Elections (Expenses and Donations) (Jersey) Law 2014