The legal advice used by Tony Newman last month to block a 20,000-signature public petition could be flawed – according to a High Court judge.
Last month Newman, while still the leader of the Labour-controlled council, rejected a mass call for a referendum to be held next May over whether the borough needs to be run by a directly-elected mayor. The Borough Solicitor rejected the petition, claiming that under covid-19 restrictions the council was not allowed to validate the signatures before May 5, 2021 – the day before the referendum could take place.
The petition was a clear and direct challenge to Newman’s power as leader of the council. Newman had been selected as leader at a private Town Hall meeting of fellow Labour councillors, many of whom he had in his pocket through the patronage of the allowances system.
When Hamida Ali replaced Newman as Labour leader this month, she was selected by just 21 councillors. The Democratically Elected Mayor of Croydon campaign – DEMOC – collected more than 20,000 signatures backing the call for a referendum (17,000-plus of those signatures have been checked as valid against the electoral roll). The campaign needed fewer than 14,000 signatures to trigger a referendum.
Since Newman’s resignation, Ali has not commented on whether the council’s view of the borough’s system of governance has changed – though she may want to check out the ruling handed down in the High Court last week by the Hon Mr Justice Chamberlain, because he says that another council’s use of covid-19 as an excuse for not holding a mayoral referendum next May is not supported in law.
In Labour-controlled Newham, they have had an elected mayor since 2002. In 2018, when Rokhsana Fiaz was elected as Newham’s mayor (an executive role, different from the Trumptonesque ceremonial role that exists in Croydon), she made a manifesto commitment to review the position within her first term. Fiaz got council agreement last week to hold such a referendum on May 6, 2021 (the day of the London Assembly elections), where a choice between a mayoral system and the committee system will be offered to voters.
But a residents’ group backed with a 12,000-signature petition calling for such a referendum was blocked by Newham Council last month. Fiaz and the Labour group in the one-party state that is Newham wanted to have control over the terms and options put forward by the referendum, and didn’t want a pesky bunch of residents to interfere with that process.
Newham’s lawyers blocked the petition using emergency legislation passed under the 2020 Coronavirus Act, just as Croydon’s lawyers had done.
On September 18, Jacqueline Harris-Baker, Croydon’s Borough Solicitor, wrote to the DEMOC campaigners to say, “… the Petition, which you submitted on Thursday 3rd September 2020, has been determined as being invalid pursuant to Regulation 9(1)(c) of The Local Authorities (Referendums) (Petitions) (England) Regulations 2011, as amended by the Local Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) Regulations 2020 (‘2020 Postponement Regulations’).”
In case it wasn’t, Harris-Baker helpfully explained that Newman’s council wanted to duck for cover behind covid-19, “The reason why the Council deems the Petition to be invalid is because a valid petition is one which is presented to the local authority to whom it is addressed on a day other than the period beginning with 16th March 2020 and ending on 5th May 2021.”
Clearly, any petition presented on May 5 2021 will come too late to have a referendum on May 6 2021…
By effectively deferring the petitioners, Croydon’s lawyers knew that a large number of the signatures collected by DEMOC would become invalid because they were more than 12 months old.
Harris-Baker also sought to pass the buck: “It should be noted that the Council does not have any discretion to consider a petition received during this period, as such whilst accepting receipt of the petition the Council does not accept your legal summation as to why the petition could be considered as being valid during this time.”
In Newham, the petitioners there decided to challenge their council’s legal argument through a Judicial Review, and last week in the High Court, Justice Chamberlain said that their case should go ahead.
Referring to Newham as the defendant, seeking to have the Judicial Review struck out, the judge wrote, “I cannot … accept the Defendant’s invitation to treat this application as misconceived.
“The matter plainly warrants a degree of expedition,” the judge wrote, calling for the hearing to be held urgently.
The judge’s view is that the council lawyers in Newham had relied too heavily on guidance from the Ministry of Housing, Communities and Local Government, and not on the law itself. The same seems likely to be the case for Croydon.
DEMOC had resisted the temptation to go for Judicial Review – it can cost upwards of £15,000 – in the belief that “the council’s failure to care what the people want will help our cause”.
Today, Gerry Meredith-Smith, the chair of DEMOC, told Inside Croydon: “I am inclined to the view that any money we can raise is best spent making sure we get our message to the people and win the referendum when it comes, which now it certainly will.
“Whether the badly written modifications to the regulations allow the council to accept the petition or not, it is certainly not residents’ fault. The council have the powers to call a referendum any way and covid-19 does not prevent them from holding it on May 6 along with the London Mayoral and Assembly elections.
“Any half-decent council, seeing that well over the required number of voters have signed a legitimate petition would do so to demonstrate that they care about democracy and accountability to the people. Not this council, unfortunately.”
- To read the council’s letter to DEMOC setting out their legal arguments to block having a referendum next May, click here
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