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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
    1. Parliament (Qualification of Women Act) 1918
    2. Parliamentary Constituencies Act 1986
    3. Hipperson and others v Electoral Registration Officer for the District of Newbury [1985] 1 QB 1060; [1985] 2 All ER 456 (CA)
    4. Sanders and Another v Chichester and Another [1994] November 11 (QBD)
    5. R v Tronoh Mines and Others [1952] 1 All ER 697; 35 Cr App Rep 196
    6. Director of Public Prosecutions v Luft and Another [1976] 2 All ER 569, [1976] 3 WLR 32
    7. Curtice J. (2005) 'Turnout: electors stay home again' Parliamentary Affairs 776.
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Hipperson and others v Electoral Registration Officer for the District of Newbury [1985] 1 QB 1060; [1985] 2 All ER 456 (CA)

SIR JOHN DONALDSON MR: Voting rights lie at the root of parliamentary democracy. Indeed many would regard them as a basic human right. Nevertheless they are not like the air we breathe. They do not just happen. They have to be conferred, or at least defined and the categories of citizen who enjoy them have also to be defined.... [T]he current source of conferment and definition is the Representation of the People Act 1983. Section 1(1) provides:

'A person entitled to vote as an elector at a parliamentary election in any constituency is one who--(a) is resident there on the qualifying date . . . and (b) on that date and on the date of the poll--(i) is not subject to any legal incapacity to vote (age apart) and (ii) is either a Commonwealth citizen or a citizen of the Republic of Ireland and (c) is of voting age (that is, 18 years or over) on the date of the poll.'

Section 1(3) then provides:

'A person is not entitled to vote as an elector in any constituency unless registered there in the register of parliamentary electors to be used at the election.'....

The qualifying date for the Newbury district is 10 October in any year for the purposes of elections taking place in the 12 months beginning with 16 February in the next following year (s 4(1)). Sections 8 to 17 deal with the establishment of electoral registers and appoint electoral registration officers. Section 12 provides that, subject to special provisions relating to those with service qualifications or who are mental patients, any person who may be entitled to vote as an elector at parliamentary or local government elections for which the register will be used is entitled to be registered in the register, unless disqualified for registration under some enactment.

Special cases apart, anyone who wishes to be included in an electoral register must therefore satisfy the electoral registration officer that he or she (a) is a Commonwealth citizen, (b) is or will during the currency of the register be aged 18 or over, (c) is resident in the relevant constituency or, in relation to local government elections, in the relevant electoral area and (d) is not disqualified for registration under some enactment.

The average parliamentary constituency consists of about 90,000 voters and it would be impracticable for electoral registration officers to verify all claims to be included in electoral registers. They therefore publish electoral lists, in effect draft registers, based on information acquired from householders and others including therein the names of all those who claim to be, and prima facie are, qualified for registration. If anyone who appears from the electoral list to be himself entitled to be registered objects to the registration of any other person, he makes his objection to the electoral registration officer who inquires into the objection and determines it (s 10(c)). Either the objector or the person objected to may appeal to the county court against the decision of the electoral registration officer and a further appeal lies to this court. That appeal is, however, final (see s 56). This is such an appeal.

Mr Turner, the electoral registration officer for the district of Newbury, included the names of Sarah Hipperson, Rebecca Johnson, Caroline Rebecca Wynn Griffiths, Naomi Griffiths, Sarah Charmain Green, Muriel Jane Dennett and Katrina Howse in the electoral lists for the Newbury constituency and the electoral area in the neighbourhood of Greenham Common. The lists were those which would form the basis of the 1985/86 electoral register and the qualifying date was 10 October 1984.

Mr Meyer objected to the inclusion of those names. His motives for so doing may have been political or non-political. They may have been good, bad or indifferent. We do not know what they were and no one has inquired, because it is quite immaterial. Either he can make his objection good in law or he cannot. Similarly the reasons which prompted these ladies to seek to have their names included in the register are quite immaterial. They equally may have been political or non-political. They too may have been good, bad or indifferent. We do, of course, know, because all made a point of telling us, that each is committed to the anti-nuclear cause and, in addition, Katrina Howse made it very clear that she has strong views about the position of men in society. We record these facts, because we feel sure that the ladies would wish them to be recorded, but we disregard them for all purposes.

The essence of the objection made to the electoral registration officer, and maintained on appeal to the county court judge (his Honour Judge Peck) and to this court, is that none of the ladies is resident for electoral purposes within the Newbury constituency or the Greenham Common electoral area. Mr Meyer accepts that each is a Commonwealth citizen and over the age of 18 and that none of them is disqualified for registration under any enactment. His objection relates solely to residence. This objection is a little more complex than might at first appear, because Mr Meyer is contending both that their residence lacks the necessary factual attributes for electoral purposes and that it has a criminal or quasi-criminal character which prevents their being treated or accepted as resident for electoral purposes even if they would otherwise be entitled to be registered.

It should be noticed that whilst the current Act moves further towards universal suffrage than some of its predecessors, there is no sex disqualification or age differential, no property owning qualification and no requirement for residence over a specified period, and it still approaches the matter from the point of view of an entitlement to vote in, and in respect of the representation of the residents of, a particular area. Thus a Commonwealth citizen of the requisite age will nevertheless have no vote if he or she is unable to establish residence in a particular parliamentary constituency or electoral area on the qualifying date. This will be the case where, for example, he is resident overseas.

Residence is not defined in the 1983 Act, but guidance is given in s 5 (formerly s 4 of the Representation of the People Act 1949) in the following terms:

'(1) For the purposes of sections 1 and 2 above any question as to a person's residence on the qualifying date for an election--(a) shall be determined in accordance with the general principles formerly applied in determining questions as to a person's residence on a particular day of the qualifying period within the meaning of the Representation of the People Act 1918 and (b) in particular regard shall be had to the purpose and other circumstances, as well as to the fact, of his presence at or absence from the address in question.

(2) Without prejudice to those general principles, a person's residence in a dwelling house shall not be deemed for the purposes of sections 1 and 2 to have been interrupted--(a) by reason of that person's absence in the performance of any duty arising from or incidental to any office, service or employment held or undertaken by him, if he intends to resume actual residence within six months of giving it up and will not be prevented by the performance of that duty or (b) by reason of permission being given by letting or otherwise for its occupation furnished by some other person--(i) if the permission is given in the expectation that throughout the period for which it is given the person giving it or his wife or her husband will be absent in the performance of any such duty as is mentioned above or (ii) if the first mentioned person intends to resume actual residence within nine weeks of giving it up and will not be prevented by the permission given as mentioned above.

(3) A person who is detained at any place in legal custody shall not by reason thereof be treated for the purposes of sections 1 and 2 as resident there.'....

The main entrance to Greenham Common Airfield lies to the north of the A339 road which, at that place, runs from east to west. In 1959 the Department of Transport compulsorily purchased a strip of land adjoining and to the north of the carriageway. At its extremities it runs more or less parallel with the road both to the east and the west of the turning which leads to the main entrance of the airfield. However, in the middle it widens out into a broad based triangular section, whose apex is at or near the entrance. Apart from the airfield itself, the land to the north of the Department of Transport's land is common land in the ownership of the Newbury District Council. At all material times the common land was subject to byelaws which made it an offence without lawful authority to camp or light any fire on any part of the common or to drive or place any vehicle on the common except in the case of accidents.

The ladies, whom we have already named and to whom we will refer collectively as 'the Greenham ladies', at all material times lived on an encampment outside the airfield in an area which spanned both the Department of Transport and common land. They slept there in vehicles, in benders (which are a form of tent), in tents, or in the open air. While some remained in the same spot, others moved from time to time, but generally they remained within the camp. There was a camp fire, but its position changed from time to time. The Greenham ladies could wash within the camp, but had to go elsewhere for baths. Post addressed to them at the main gate of the airfield reached them regularly and indeed it was their address for service in these proceedings. They were all living on the camp on 10 October 1984, and had been doing so for varying lengths of time. The last to arrive had come to the camp in June 1984 and some had been there for more than two years. Some had their names included in previous electoral registers. Indeed one, Rebecca Johnson, had been the subject of an objection in 1982 which had been disallowed. One, Muriel Dennett, had been a candidate in a local government election, her qualification to stand being based on her inclusion in the register. Three of the Greenham ladies owned houses elsewhere, but none lived in those houses on a day-to-day basis. None of the Greenham ladies was on any other electoral register.

On 12 September 1984 Macpherson J granted the Department of Transport an order for the possession of its land. The defendants included Sarah Hipperson, Sarah Green, Becky Griffiths and 'persons unknown'. On 9 March 1983 Croom-Johnson J granted the Newbury District Council injunctions requiring the defendants, who included Sarah Green, Rebecca Johnson and Katrina Howse, (a) forthwith to vacate the common land (b) perpetually to refrain from entering the common land and (c) perpetually to refrain from conspiring to trespass on the common land.

The county court judge expressed himself as satisfied that all the Greenham ladies had, at times, been in breach of the Greenham Common byelaws by camping or lighting fires on the common land and that all had, at times, been in breach of s 137 of the Highways Act 1980, which provides:

'(1) If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to a fine not exceeding 50'.

The first question is whether, ignoring any question of unlawfulness or illegality, the Greenham ladies were 'resident' within the parliamentary constituency of Newbury and within the Greenham Common electoral area on the qualifying date. Both Mr Turner and the judge held that they were. The difference between their decisions lay in the fact that Mr Turner held that the unlawfulness of their residence disqualified them for inclusion on the electoral register, whereas the judge held that it did not..... The decision of this court in Fox v Stirk, Ricketts ([1970] 3 All ER 7) under the 1949 Act which... was the same as the 1983 Act, is authority for the following propositions: (1) 'reside' and 'resident' are to be construed in their ordinary meanings, namely as connoting dwelling permanently or for a considerable time, having one's settled or usual abode, living in or at a particular place (see Oxford English Dictionary) (2) regard has to be had, as the statute says, to the general principles formerly applied and to the purpose and other circumstances of the aspiring elector's presence at, or absence from, the address (3) neither presence at nor absence from the address on the qualifying date is conclusive, e g the overnight guest or short-stay visitor will not necessarily be resident and the fact that the householder is away on holiday will not necessarily cause him to cease to be resident and (4) one can have more than one residence, e g a London flat and a country cottage.

Whilst counsel appearing for Mr Meyer accepted that the Greenham ladies were in occupation of the camp, he submitted that, in terms of the 1983 Act, they did not reside there. For a person to reside in any particular place, they had to have a home there....

In the submission of counsel for Mr Meyer the living conditions of the Greenham ladies were such that they could not in any objective sense be said to have a home in the camp. Support for this contention was, he said, to be found in s 5(2) of the 1983 Act which, in the context of 'constructive residence' referred only to dwelling-houses. None of the Greenham ladies lived in anything which could be described as a dwelling-house. Indeed, had they applied to the local authority for housing, they could have alleged without fear of contradiction that they were homeless.

He then submitted that residence connoted a degree of past and future permanence. The Greenham ladies lived under permanent threat of eviction and their occupation of the camp, if otherwise constituting residence, was too precarious to do so. Next he drew attention to the fact that, under s 10(b) of the 1983 Act, electors' lists were required to specify a qualifying address. This implied that electors must live in permanent buildings. Finally, on this aspect of the argument, counsel for Mr Meyer drew attention to the requirement, in s 5(1)(b), that in particular regard should be had to the purpose and other circumstances, as well as to the fact, of presence or absence from the address in question. In his submission, the Greenham ladies' purpose in being at the camp was not that of a bona fide residence, but to further a protest concerning cruise missiles.

We are unable to accept any of these submissions. The Greenham ladies, other than those who have houses elsewhere, may well be homeless for the purposes of the homeless persons legislation, but to import considerations based on the standard of accommodation into qualification for the franchise would be to put the clock back to the days when the franchise depended on a property qualification and is quite unwarranted by anything in the 1983 Act. It may be unusual to make one's home in a tent, bender or vehicle, but we can see no reason in law why it should be impossible. Section 5(2) of the 1983 Act may well have an application which is limited to dwelling houses, but this only means that circumstances which could not interrupt a person's residence in a dwelling house may interrupt his residence in a tent. As to the need for a qualifying address, there can be no doubt that the Greenham ladies have it. Their mail is regularly delivered when addressed to them at the camp and it was accepted by the court and the county court as an address for service.

This leaves only the permanence of their residence and its purpose. Permanence, like most aspects of residence, is a question of fact and degree. There are concurrent findings that the tenure of each of the Greenham ladies had sufficient permanence on the qualifying date to constitute residence and, on the facts, we are not surprised. All human affairs have a degree of impermanence, the precise degree being best forecast in the light of experience. The experience of the Greenham ladies, thus far, seems to be that, however precarious their occupation of the camp may be in theory, in practice it seems to have a marked degree of continuity. The requisite degree of permanence has to be established as at the qualifying date. Widgery LJ in Fox v Stirk [1970] 3 All ER 7 at 13, [1970] 2 QB 463 at 477 said that there must then be some expectation of continuity, but that statement is not of universal application. One has only to consider the position of those who move house in a regular manner to see that residence may be established by reference either to past or to future continuity. Take a change of house on 20 October. The vendor establishes the house as his residence on 10 October by reference to his past and present occupation and it is nothing to the point that it will cease to be his residence in ten days' time. Take a change of house on 1 October. The purchaser establishes the house as his residence on 10 October by reference to his present and future occupation and it is nothing to the point that he has only lived there for ten days. On 10 October 1984 all the Greenham ladies had been living in the encampment for a substantial period and it was nothing to the point that, in theory, they might have been required to leave shortly thereafter.

As to the purpose of their presence on the camp, Rebecca Johnson in argument said that she was a 'peace worker' whose place of work was the neighbourhood of the Greenham Common airfield. She preferred to live at or near her place of work. There is nothing necessarily incredible in someone wishing to live 'over the shop', even if in this appeal both the working activity and the living place are unusual.

We have dealt fully with the submissions of counsel for Mr Meyer on this aspect of the appeal in deference to the care with which they were presented, but in the end the answer must be that whether or not a person is resident in a particular place is a question of fact and degree to be determined by the tribunal of fact. The issue has been determined in favour of the Greenham ladies and there are no grounds on which this court could interfere.

.... This issue can be approached on the basis of statutory construction, treating the words 'resident' and 'residence' wherever they occur in the 1983 Act as being impliedly preceded by the word 'lawful'. It can also be approached on the basis of public policy. As Lord Scarman put it in Shah v Barnet London BC [1983] 1 All ER 226 at 235, [1983] 2 AC 309 at 344: ". . . it was wrong in principle that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully."

The two approaches are in no way inconsistent with one another, and may indeed overlap, since Parliament is unlikely to have intended a result which was contrary to public policy in the strict sense of those words.

It is quite clear that if criminality is relevant, it could only be in relation to the criminality of residing at the qualifying address, as contrasted with the activities carried on at or from that address. Were it otherwise, burglars and brothel keepers would all be disenfranchised and it would scarcely have been necessary to disqualify convicted prisoners. But the consequences of holding that the qualifying residence must not involve the commission of a criminal offence and, a fortiori, that the residence must be lawful in the sense of not involving a breach of the civil rights of others are startling in the extreme. A whole range of citizens would be disqualified..... If the scope of the disqualification is to be extended from the illegal to the unlawful, all those who remain in occupation of residential premises when a possession order has been made would be disqualified.

This appears to be a novel point under modern legislation, although it was considered in Harris v Amery (1865) LR 1 CP 148, where the qualification was not residence but an interest in land. Mr Harris claimed the right to vote on the basis of the fact that he and 45 others held a tenancy in partnership. Such a partnership was required to be registered under the Companies Act and this partnership was unregistered and therefore illegal. The court held that he could not rely on the tenancy. That decision seems to us to be distinguishable. The qualifying condition was a legal right and the illegality deprived Mr Harris of this qualifying right. In the instant appeal the qualifying condition is residence which does not depend on the law for its existence....

We do not consider that Parliament can have intended to cast on an electoral registration officer the duty of deciding which residential breaches of the criminal law should disqualify an aspiring voter and which should not. Accordingly we reject the submission that the franchise is affected by the fact that the qualifying residence is illegal or, a fortiori, unlawful.

On the facts of this appeal, we could not, in any event, have accepted the assumption that the residence of each of the Greenham ladies was necessarily illegal. The offence under s 137 of the Highways Act 1980 consists of obstructing free passage along a highway, and not of living on highway land. No doubt the highway is wider than the carriageway, but whether there is an obstruction is a question of fact taking account of a number of facts (see Nagy v Weston [1965] 1 All ER 78, [1965] 1 WLR 280). It is not established merely by proving that there was a tent on highway land. If reliance were to be placed, in the alternative, on the byelaws, it would have been necessary to prove which of the Greenham ladies was living on the common land. They were all living at the camp and the camp extended over both highway land and common land. This does not suffice, for it can no more be said that each lived in the whole of the camp than it could be said that an hotel guest lives in the whole of the hotel. However, as we have said, we do not consider that breaches of the criminal law are a relevant factor. They may, of course, have a direct bearing on the permanence of the residence, as, for example, a criminal who is sought by the police for serious crime takes refuge in a house in order to escape detection, but that is a quite different matter.

This would not necessarily be decisive of the appeal because counsel for Mr Meyer submits that the residence of each of the Greenham ladies was either in breach of the injunction granted by Croom-Johnson J in March 1983 or constituted an aiding and abetting of such a breach. We accept that when a court has ordered a citizen to cease to reside at a particular address, he cannot rely on his continued residence at that address as a qualification for the franchise. There is a real distinction between a breach of the general law and breach of a court order. Consistently with this view the penalties for breach of an injunction not to commit minor criminal offences, such as selling goods on pavements without a licence, can far exceed the maximum penalty for the criminal offence itself. But this cannot be extended, in this context, to aiding and abetting a breach of the injunction. That is a very serious offence, but in normal circumstances it would go to the conduct of the aider and abetter rather than to the character of his own residence, which alone is relevant in the context of qualifying for the right to vote.

Counsel who appeared for Naomi Griffiths submitted that this conclusion would lead to the disqualification of a man or woman who, with the consent of his or her spouse, resided in a house in technical breach of an ouster injunction. So it would, if an objection was raised, but the remedy lies in errant, but forgiven, spouses applying to have the ouster injunction revoked. In the context of this appeal, counsel for Mr Meyer is once again faced with the problem that neither Mr Turner nor the county court judge has found who lives where. Rebecca Johnson told us that she habitually breaches the injunction by walking on the common land, but does not live there. We mention the matter not to belittle the seriousness of her breach, but because it highlights the difference between a breach of a court order which goes to the residence relied on as a qualification for the franchise and one which does not.

Accordingly, we consider that on the facts found, all the Greenham Common ladies have established a residence qualifying them to have their names included in the electoral lists and no facts have been found to prevent their relying on that residence....