Local Elections (Petitions and Disqualifications) Act 1974

1 Interpretation.

1.—(1) In this Act—

“the Act of 1941” means the Local Government Act, 1941;

“the Act of 1963” means the Electoral Act, 1963;

“clerk” means the town clerk of the corporation of a county or other borough, the council of an urban district or the commissioners of a town;

“costs” includes charges and expenses;

“county”, except where the context otherwise requires, includes a county borough;

“electoral offences” means offences under any statute or statutory instrument relating to local elections;

“local authority” means the council of a county, the corporation of a county or other borough, the council of an urban district, or the commissioners of a town;

“local election” means an election held pursuant to section 81 of the S.I Act of 1963 or a new election within the meaning of Part IV of the Act of 1941;

“local electoral area” means the area or any of the areas (as may be appropriate) by reference to which a local election is held;

“member” includes a lord mayor, mayor, chairman, vice-chairman, alderman, councillor and a commissioner of a town;

“the Minister”, except where the context otherwise requires, means the Minister for Local Government;

“petition” means a petition presented under this Act;

“returning officer” means the secretary or clerk of a local authority and includes a person appointed by such secretary or clerk to act as a deputy returning officer for the election of members of such authority;

“secretary” means the secretary of a county council.

(2) Any reference in this Act to any other enactment shall, except so far as the context otherwise requires, be construed as a reference to that enactment as amended or applied by or under any other enactment (including this Act).

(3) Any reference in this Act to a meeting or member of a local authority shall, where the local authority in question is the corporation of a county or other borough, be construed as a reference to a meeting or member of the council established by law in respect of such county or other borough.

(4) Any reference in this Act to a particular officer shall be construed as including a reference to any person duly appointed either as deputy for such officer or to act in the place of such officer during his absence or incapacity or during a vacancy in his office.

2 Questioning of local election.

2.—(1) A local election may, and may only, be questioned by a petition to the Circuit Court.

(2) Where it appears to the Attorney General that a local election may have been affected by the commission of electoral offences, he may question the election pursuant to subsection (1) of this section.

3 Security for costs.

3.—(1) A petition, other than a petition presented by the Attorney General, shall not be accepted for lodgement with the court unless the petitioner lodges with the petition security for costs which may become payable by him.

(2) The security required to be given by subsection (1) of this section shall be an amount of three hundred pounds and shall be given either by recognisances entered into by any number of sureties satisfactory to the court not exceeding four or by a deposit of money, or partly in one way and partly in the other.

4 Presentation of petition.

4.—(1) A petition may be presented by any person who has reached the age of eighteen years and shall be presented by being lodged in the office of the county registrar for the county in which is situate the principal office of the local authority to which the petition relates.

(2) Subject to subsection (3) of this section, a petition shall not be presented save within the twenty-eight days next after the result of the election is declared.

(3) Subject to section 19 of this Act, where a petition alleges bribery and specifically alleges a payment or other consideration to have been made or to have passed after the result of the local election was declared, notwithstanding the fact that another petition relating to the same election may have been previously presented or tried, the petition may be presented within the twenty-eight days next after the day on which the said payment or consideration is alleged to have been made or to have passed.

(4) Where a petition has been lodged with the court, as soon as may be the petitioner shall give a copy of the petition—

(a) to any person to whose election the petition relates,

(b) to the Minister,

(c) to the secretary or clerk of the relevant local authority, and

(d) except in the case of a petition presented by the Attorney General, to the Attorney General.

5 Grounds for petition.

5.—(1) Subject to section 82 (6) of the Act of 1963, a local election may be questioned on the grounds of want of qualification, obstruction of or interference with or other hindrance to the conduct of the election, or mistake or other irregularity which, if established, are likely to have affected the result of the election and without prejudice to the generality of the foregoing, any of the following grounds may be specified in a petition:

(a) a local election was affected by error or was not completed or was otherwise not conducted by the returning officer in accordance with law,

(b) a local election was affected by electoral offences,

(c) a person at a local election was, on the date of his nomination, not qualified for membership of the relevant local authority.

(2) Notwithstanding any other provision of this Act, a petition shall not be dismissed on account of an informality in its contents which does not materially affect its substance.

6 Particulars in petition.

6.—A petition shall specify—

(a) the local election to which it relates,

(b) the grounds on which it is based,

(c) the remedy it seeks, and

(d) the name and address of the petitioner and his solicitor or agent, if any,

and shall be signed by the petitioner.

7 Trial of petition.

7.—(1) A petition shall be tried by a Judge of the Circuit Court assigned for the time being to the circuit in which is situate the principal office of the local authority to which the petition relates and references in this Act to the court shall, save where the context otherwise requires, be construed as references to the Circuit Court.

(2) The following provisions shall have effect in relation to the trial of a petition:

(a) in fixing the date for and conducting the trial, the court shall deal with the matter as soon as is reasonably possible;

(b) the trial shall take place in the county in which is situate the principal office of the local authority to which the petition relates;

(c) notwithstanding the death of any person to whose election a petition relates, his resignation as a member of the relevant local authority or his otherwise ceasing to be such member, the trial shall be continued until its result is determined;

(d) the Attorney General may at any stage be represented at and take part in the trial as a party, whether of his own motion or at the request of the court;

(e) the returning officer for the relevant local election shall, at the request of the court, attend the trial and give such assistance as shall be requested of him by the court, but without prejudice to his being a party to the proceedings or being called as a witness by any such party.

(3) Any party to a petition may appeal on a question of law to the Supreme Court against a decision of the court on the petition and subject to the foregoing the decision shall be final and not appealable.

(4) A petition shall, for the purposes of section 22 of the Courts (Supplemental Provisions) Act, 1961, be an action within the meaning of Part III of that Act.

8 Counting of votes afresh.

8.—(1) The court may, for the purposes of the trial of a petition, if it thinks fit, order—

(a) that all the votes cast at the election shall be counted afresh,

(b) that all the votes so cast in a particular electoral area shall be so counted, or

(c) that all the votes so cast and recorded on the ballot papers contained in a particular parcel shall be so counted,

and where the court so orders, the provisions of the following subsections shall have effect.

(2) Votes to which an order under this section relates shall be counted afresh under the direction of the court and, subject to subsections (3) and (4) of this section and to such modifications (if any) as the court considers necessary, the provisions of any regulations made by the Minister under section 82 of the Act of 1963 relating to the counting of votes at a local election shall apply to such counting.

(3) Where votes are counted afresh pursuant to an order under this section, the court shall cause the following to be ignored:

(a) preferences recorded on ballot papers which are invalid by virtue of regulations made by the Minister pursuant to section 82 of the Act of 1963,

(b) preferences recorded on forged or counterfeited ballot papers, and

(c) preferences recorded for any person who, with respect to the relevant election, is found by the court not to have been qualified for membership of the local authority.

(4) The court shall have power to reverse any decision of a returning officer at the original count.

(5) The costs of giving effect to an order under this section shall be paid by the local authority concerned.

9 Withdrawal of petition.

9.—(1) A petition shall not be withdrawn without the leave of the court and in giving such leave the court shall be satisfied that the notice given by the petitioner pursuant to subsections (3) and (4) of this section was reasonable, and in addition to the foregoing, where a petition is presented by more than one petitioner the court, before giving such leave, shall be satisfied that all the petitioners agree to the withdrawal.

(2) Except in the case of a petition presented by the Attorney General, when applying for leave for the withdrawal of the petition, the petitioner shall submit to the court an affidavit stating:

(a) the reasons for the proposed withdrawal, and

(b) that, to the best of the petitioner's knowledge and belief, neither an agreement nor an undertaking has been made or entered into in relation to the withdrawal of the petition in consideration of any payment or the cesser of membership of a local authority or for any substantial reason not stated in the affidavit.

(3) Notice of intention to apply for leave to withdraw a petition shall be given by the petitioner by the publication in at least two newspapers circulating in the local electoral area to which the petition relates of a notice to that effect and the notice shall also state the time and place at which the application will be heard and that any person may apply to the court to be substituted for the petitioner.

(4) Except in the case of a petition presented by the Attorney General, a copy of the affidavit mentioned in subsection (2) of this section together with notice of the time and place at which the application will be heard shall be given by the petitioner to the Attorney General who may be represented at, and if he thinks fit, oppose the application.

(5) Where the petition has been presented by more than one petitioner, the affidavit mentioned in subsection (2) of this section shall, unless the court otherwise directs, be made by all the petitioners.

(6) The withdrawal of a petition pursuant to this section shall not affect the liability of any person (or of his estate) for the payment of costs previously incurred.

10 Penalty for corrupt withdrawal of petition.

10.—A person who makes any agreement or enters into any undertaking in relation to the withdrawal of a petition in consideration of any payment or the cesser of membership of a local authority or for any substantial reason not stated in the affidavit referred to in section 9 (2) of this Act shall be guilty of an offence and shall, on conviction on indictment, be liable to imprisonment for any term not exceeding three months or to a fine not exceeding three hundred pounds or, at the discretion of the court by whom he is convicted, to both such fine and such imprisonment.

11 Substitution of new petitioner following withdrawal.

11.—(1) On the hearing of an application for leave to withdraw a petition, any person may apply to the court to be substituted as a petitioner, and the court may, if it thinks fit, substitute him accordingly.

(2) In case the court substitutes a petitioner under subsection (1) of this section and is of opinion that the application for leave to withdraw the petition was the result of any agreement or undertaking the making of which or the entering into which is declared by section 10 of this Act to be an offence, the court may direct that the security for costs given by the original petitioner shall remain as security for the costs that may be incurred by the substituted petitioner and that, to the extent of the sum named in the security, the original petitioner and his sureties, if any, shall be liable to pay the costs of the substituted petitioner.

12 Substituted petitioners.

12.—(1) Subject to section 11 (2) of this Act, a substituted petitioner shall, as nearly as may be, stand in the same position and be subject to the same liabilities as the original petitioner.

(2) In case the court substitutes a petitioner under section 11 of this Act and does not make a direction under subsection (2) of that section, or in case the court substitutes a petitioner under section 13 of this Act, the security required by section 3 of this Act in the case of a new petition, and subject to the like conditions, shall be given by the substituted petitioner, and in case such security is not so given no further proceedings shall be had on the petition and the petition shall abate, but the abatement shall not affect the liability of any person (or of his estate) for the payment of costs previously incurred.

13 Abatement of petition.

13.—(1) A petition shall be abated by the death of a sole petitioner or of the survivor of several petitioners.

(2) The abatement of a petition by virtue of subsection (1) of this section shall not affect the liability of the petitioner or any other person (or of his estate) for the payment of costs previously incurred.

(3) At any time within the fourteen days next after the day of any such abatement, any person may apply to the court to be substituted as a petitioner and the court may, if it thinks fit, substitute him accordingly, and in case the court makes an order under this section the petition shall thereupon be revived.

14 Matters relating to final order on trial of petition.

14.—(1) At the trial of a petition which the court does not dismiss, the court shall determine the matter at issue in the petition and shall in its order determining the petition include either—

(a) a declaration of the correct result of the local election, or

(b) if it considers that it is unable to determine the correct result of the election, a declaration that the whole of the election or a specified part of the election was void together with a statement of its reasons for making the declaration.

(2) The court shall have power to make such amendments in the return of persons elected made to a local authority by a returning officer as it considers necessary in consequence of its decision on a petition.

(3) A copy of the order determining the petition shall be given forthwith by the court to each of the following, namely, any person to whose election the order relates, the Minister, the secretary or clerk of the relevant local authority and the Attorney General.

15 Effect of certain declarations by court.

15.—(1) Where the order of the court relating to a petition declares that a person was not duly elected as a member of a local authority or was not qualified for membership of a local authority or that the whole or part of a local election was void, the person to whom the declaration relates, or any person elected at such void election or void part of an election (as the case may be) shall cease to be a member of the local authority on (but not before) the day next following the day on which a copy of the order of the court given pursuant to section 14 of this Act is received by the secretary or clerk of the local authority and, subject to section 16 of this Act and subsection (2) of this section, a vacancy shall exist accordingly.

(2) Where an order mentioned in subsection (1) of this section declares that, in the place of any person declared by the order not to have been duly elected or not to have been qualified for membership of a local authority, a specified other person was ascertained to have been elected, that other person shall stand elected as a member of the local authority on (but not before) the day next following the day on which a copy of the order is received as aforesaid by the secretary or clerk of the local authority.

(3) Subject to section 16 of this Act, where an order of the court determining a petition does not contain a declaration described in subsection (2) of this section, the vacancies occurring as a result of the order in the membership of the local authority concerned shall be treated and filled as casual vacancies.

(4) As soon as practicable after a copy of an order is given to him pursuant to section 14 of this Act, the secretary or clerk shall give notice to each member of the local authority of the terms of the order.

(5) Where a person has been returned as a member of a local authority and, subsequent to being so returned, the person sits, votes or otherwise participates as a member in the business of the authority or purports to do anything by virtue of membership of the authority and is also declared by the court not to have been duly elected to serve as a member of the authority or not to have been qualified for membership of the authority, for the avoidance of doubt it is hereby declared that anything done by the person while so participating and anything purporting to have been so done, either on or before the day on which a copy of the said order is received as aforesaid by the secretary or clerk of the local authority shall, notwithstanding the order, be valid and effectual.

(6) Where an order under this section disqualifies a person from membership of a local authority, he shall cease to be a member of any other body to which he had been appointed to represent that local authority.

16 Matters consequential on petition.

16.—Where as a result of the determination by a court of a petition an election is declared void or the number of persons validly elected to membership of a local authority is less than the quorum required for meetings of the authority, the following provisions shall apply:

(a) the election to which the petition relates shall be deemed not to have been held and the persons elected at such election shall be deemed not to have come into office,