Gladys Morgan and four voters in the 1973 election for the Greater London Council petitioned that the election for the seat of Croydon North East was invalid as 44 unstamped ballot papers were not counted.

The question of law in this case is whether it should be transformed into the positive so as to show when an election is to be declared invalid.

I have come to this conclusion from the history of the law as to elections and the cases under the statutes to which I now turn, underlining the important points.

A poll was taken in this way: the returning officer or his clerk had a book in which he kept a record of the votes cast.

Sometimes the returning officer or his clerk might refuse to record some of the votes without good cause.

If it were found that the rejected votes would have given a different result, the election would be vitiated: see Faulkner v Elger (1825) 4 B.

If they would not have affected the result, the election was good, but the rejected voter could have an action for damages against the returning officer: see Ashby v White (1703) 2 Ld.

By the Parliamentary Elections Act 1868, a petition to unseat a member was to be tried by a judge of one of the superior courts.

If, on the scrutiny, it was found that he had obtained the majority of legal votes, the sitting member was unseated and the defeated candidate was returned: see Leigh & Le Marchant's Election Law, 2nd ed.

(1874), p. 75, where this proposition is better stated than in the report of In re Taunton Election Petition; Waygood v James (1869) L.R.

"Soon after that Act was passed, Leigh and Le Marchant published a valuable commentary on it.

"A little later, the Act was considered by Grove J. in 1874 in In re Hackney Election Petition: Gill v Reed (1874) 2 O'M.

Grove J. held at p. 84 that the election was not "conducted in accordance with the principles laid down in the body of the Act" and was therefore void.

He said that the object of the provision was, at p. 85: "an election is not to be upset for an informality or for a triviality, it is not to be upset because the clerk of one of the polling stations was five minutes too late, or because some of the polling papers were not delivered in a proper manner, or were not marked in a proper way.

The objection must be something substantial,..."The Act was soon afterwards considered in 1875 by the Court of Common Pleas in Woodward v Sarsons (1875) L.R.

He wrote, on each of the ballot papers, the voter's number as it appeared on the electoral roll.

The court said, at p. 750: "the errors of the presiding officers at the polling stations... did not affect the result of the election, and did not prevent the majority of electors from effectively exercising their votes in favour of the candidate they preferred, and therefore that the election cannot be declared void...."But if the errors had affected the result (in other words, if Woodward would have won but for the mistakes of the polling officers), the court, as I read the judgment, would have declared the election void.

A presiding officer, in breach of the rules, gave out 14 ballot papers after 8 p.m., which was closing time.

The polling clerks made mistakes in that they issued 102 ballot papers without stamping them with the official mark.

Applying these propositions, it is clear that in this case, although the election was conducted substantially in accordance with the law, nevertheless the mistake in not stamping 44 papers did affect the result.

Instances of such a substantial departure would be allowing voters to vote for a person who was not in fact a candidate or refusing to accept a qualified candidate on some illegal ground or disfranchising a substantial proportion of qualified voters, but not such an irregularity as was committed in this case or perhaps in Gunn v. Sharpe.

These last answers are not necessary to the decision of this appeal if I am right in my construction of the section, but as I may be wrong in disagreeing as I have with the Divisional Court's interpretation, I have thought it right to state my agreement with their decision that this election was conducted substantially in accordance with the law as to elections and to give my reasons for agreeing as well as for disagreeing with the judgment under appeal.

The principles upon which Parliament proceeded were considered by the Court of Common Pleas in Woodward v Sarsons (1875) L.R.

The broad issue was whether under the Ballot Act 1872 municipal elections were to be declared invalid on the same or different principles from those followed for parliamentary elections at common law, there being no evidence at all that such irregularities as had been proved would have affected the result.

The court adjudged that the common law principles and those to be applied under section 13 of the Ballot Act 1872 were the same.

"It is important to bear in mind that the Court of Common Pleas did not consider what was the practice of Parliament in cases where, although the election had been conducted substantially in accordance with the subsisting election laws, the proven irregularities had affected the result.

The Divisional Court decided otherwise, finding their answer to the problem presented by this case in a passage in the judgment of Lord Coleridge C.J.

I am not satisfied, as the Divisional Court seems to have been, that this construction would be likely to result in many more election petitions where majorities have been small.

In cases where majorities are small, say under 100, the unsuccessful candidates may seek to have the election declared invalid.

In these days of voting rights for all persons aged 18 and over such small majorities are rare anyway, and even more rare would be the cases in which the unmarked ballot papers would have affected the result; but even if they are not, the unattractive possibility of more election petitions cannot be a sound reason for giving section 37 (1) a meaning other than that which the words themselves bear....