Parliamentary Elections, Representation and the Law 9781472561169, 9781849461474

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ACKNOWLEDGEMENTS This book had its beginnings in 2003 when Harry Duynhoven, a Member of the New Zealand House of Representatives, made an application for a Dutch passport and inadvertently triggered his disqualification from Parliament as a result. Although Mr Duynhoven was saved by a retrospective suspension of the offending law, the episode sparked my interest in just how members of the legislature not only obtain their seats and remain there: how would the representative’s entry to and exit from Parliament be decided, and what sort of people do we want as our representatives? The bulk of this work was completed as my doctoral thesis at King’s College London, where I benefited from the kind and expert supervision of Professors Robert Blackburn and Keith Ewing. In addition Dean Knight, David Monks, Graeme Orr and Bob Posner read various chapters and contributed valuable comments and insights. Of course any errors that remain are my own. Richard Hart and Rachel Turner of Hart Publishing were enthusiastic and efficient as my thesis metamorphosed into this book: the perfect combination in an editorial team. I am also grateful to my former colleagues in the legal team of the UK Electoral Commission: Bob Posner, Elizabeth Morrow, Rosie Sidey and Michelanne Calhoun Wilson, with whom I spent a very enjoyable six months in 2008–2009 at the electoral law coalface. None of the views expressed here should be taken to have the endorsement of the Electoral Commission. My thanks too to Yana Geary of Victoria University of Wellington and Katelyn Schoop of Queen Mary, University of London, for their meticulous and patient work in formatting and re-formatting the manuscript, hunting down my typographical errors, and generally correcting the errors of my word-processing ways. And lastly, to my husband, Richard Searle: thanks – for everything. The law is stated, as closely as possible, to 1 May 2011. Caroline Morris Queen Mary, University of London

For Richard and Charles

TABLE OF CASES A v UK [2002] ECHR 811.......................................................................................144 Absalom v Gillett [1995] 1 WLR 128........................................................................88 AEC v Bamblett [2004] FCA 755..............................................................................94 AEC v Gordon (unreported, 5 September 1994, BC 9400065) ...............................94 AEC v Lalara (unreported, 27 September 1994, BC 9405064)...............................94 AEC v Landy (unreported, 22 December 1994, BC 9405696)................................94 AEC v Wilson [2003] FCA 434..................................................................................94 AG v Jones [1999] EWHC Admin 377................................................................90, 92 Ahmed v United Kingdom (2000) 29 EHHR 1.........................................................37 Amalgamated Society of Railway Servants v Osborne [1910] AC 87................31, 103 Anisminic v Foreign Compensation Commission [1969] 2 AC 147........................107 Armstrong v Budd [1969] 1 NSWR 649.................................................................133 ASLEF v UK [2007] ECHR 184..............................................................................128 Baker v Jones [1954] 1 WLR 1005...........................................................................107 Baker v Liberal Party (1997) 68 SASR 366.............................................................109 Baldwin v Everingham [1993] 1 Qd R 10.......................................................118, 119 Barnardiston v Soame (1674) Pollex 470; 86 ER 615...............................................79 Belknappe v Barkeley (1512) CP 40/1001 ................................................................73 Bodenham v Scudamore (1554) CP 40/1157............................................................73 Bordesley Green [2005] All ER (D) 15......................................................................98 Bradley v The Jockey Club [2004] EWHC 2164.............................................123, 126 Breen v Amalgamated Engineering Union [1971] 2 QB 175..........................119, 122 Broadmoor Special Health Authority v Robinson [2008] QB 775............................96  Buckley v Thomas (1554) 1 Plowden 118; (1554) 75 ER 182 .................................73 Burdett v Abbott (1811) 4 East 1.............................................................................133 Cameron v Hogan (1934) 51 CLR 358...................................................117, 118, 119 Case of the Sheriff of Middlesex (1840) 11 A & E 273............................................133 Castells v Spain (1992) 14 EHHR 445......................................................................38 Channon v Moghan (1555) CP 40/116.....................................................................73 Clarke v Australian Labor Party (1999) 74 SASR 110............................................120 Coleman v Liberal Party [2007] NSWSC................................................................120 Conservative and Unionist Office v Burrell [1982] 1 WLR 522..............................106 Corbet v Talbot (1485) Rast Ent 446a; Vet Lib Int (1545)........................................73 Crittenden v Anderson (1977) 51 ALJ 171................................................................53 Daley v Newnham [2005] Vic Sup Ct 303..............................................................120 Donaldson v Empey [2004] NIJB 1.................................................................110, 113 Duke of Newcastle v Morris (1870) LR 4 HL 661...................................................132

xvi

Table of Cases

Finnigan v NZ Rugby Football Union [1985] 2 NZLR 159....................................123 Fountaine v Chesterton (1968) 112 Sol J 690..........................................................112 Galt v Flegg [2003] Qd Sup Ct 290.........................................................................120 Ganchev v Bulgaria (1996) App 28858/95 (unreported).................................36, 127 Gitonas v Greece (1998) 26 EHHR 691....................................................................37 Godwyn v Sydnam (1549) CP 40/1143.....................................................................73 Goodwin v Fortescue (1604) St Tr 91................................................................. 77–79 Greek Case (1969) 12 Year Book 1............................................................................34 Greenway-Stanley v Paterson [1977] 2 All ER 663.............................................63, 64 Gunter v Welshe (1548) CP 40/1137.........................................................................73 Hampshire County Council v Beer [2003] EWCA Civ 1056..........................123, 124 Harford v Linskey [1899] 1 QB 852..............................................................61, 64, 65 Harrison v Gupta (unreported, LB of Brent, 4 May 2006)......................................42 Hirst v United Kingdom (No 2) (2006) 42 EHRR 41...............................................57 Hobbs v Morey [1904] 1 KB 74.................................................................................64 Hopkinson v Marquis of Exeter (1867) LR 5 Eq 63................................................106 Hudson v GMB [1990] IRLR 67.............................................................................112 Hussein v Khan [2006] EWHC 262 .............................................................88, 93, 98 In Re MacManaway and In Re The House of Commons [1951] AC 161...................................................................................................47, 131, 132 In Re Melton Mowbray [1969] 1 QB 192..................................................................62 In Re Samuel [1913] AC 514...................................................................................131 Ishaq v McDonagh (2000) 45 EOR Discrimination Case Law Digest 5................114 Jepson and Dyas-Elliott v The Labour Party [1996] IRLR 116...................................................................... 101, 104, 109, 114, 115, 126 John v Rees [1970] 1 Ch 345............................................................................112, 122 Lee v Mitton (1554) CP 40/1159...............................................................................73 Lee v Showmen’s Guild of Great Britain [1952] 2 QB 329......................................107 Lewis v Heffer [1978] 1 WLR 1061.................................................................110, 112 Liberal Party v United Kingdom (1981) 21 DR 211..................................................35 London Borough Council of Bromley v Greater London Council [1983] 1 AC 768........................................................................................................32, 107 Lykourezos v Greece (2008) 46 EHRR 7....................................................................37 M v United Kingdom (1984) App 10316/83.......................................................37, 46 MacLean v Attorney-General of Nova Scotia (1987) 35 DLR (4th) 306................134 Mann v Secretary of State for Scotland (15 November 2000, Edinburgh ET).......114 Mathieu-Mohin and Clerfayt v Belgium (1988) 10 EHHR 1................. 34, 35, 36, 48 McDonagh v Ali [2002] IRLR 489..........................................................................115 McGuinness v United Kingdom (8 June 1999) Application 39511/98 (ECtHR)........................................................................................................38, 134 McKinnon v Grogan [1974] 1 NSWLR 295....................................................118, 124 Melnychenko v Ukraine (2006) 42 EHRR 784 (Section II)........................36, 56, 127 Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders [2004] ZACC 10.......................................................57



Table of Cases

xvii

Modahl v British Athletic Federation Ltd (Court of Appeal, 28 July 1997)...........126 Mortimer v The Labour Party 2000 Westlaw 538 (Ch)..........................................109 New Testament Church of God v Stewart [2007] EWCA Civ 1004........................117 Oxford Case (1924) 7 O’M & H 49...........................................................................70 Patterson v Merrick (2 November 1988) unreported, CA.......................................63 Percy v Board of National Mission Church of Scotland [2005] UKHL 73..............117 Peters v Collinge [1993] NZLR 554......................................... 107, 110, 111, 125, 127 Podkolzina v Latvia [2002] ECHR 405.......................................................36, 39, 127 Prebble v Awatere Huata [2005] 1 NZLR 289................................................107, 111 Prideaux v Morrice 7 Mod 14; (1702) 87 ER 1065...................................................80 Pritchard v Mayor of Bangor (1888) 13 App Cas 241.........................................62, 66 Radclyffe v Wyngfeld (1483) CP 40/883...................................................................73 R (Cart) v Upper Tribunal [2010] EWCA Civ 859...................................................90 R (De Beer) v Balabanoff [2002] EWHC 670...........................................................61 R v Boundary Commission ex p Foot [1983] 1 QB 600.........................................107 R v Cripps ex p Muldoon [1984] QB 68....................................................................90 R v Election Court ex p Sheppard [1975] 2 All ER 723.............................................62 R v Legal Aid Board ex p Donn [1996] 3 All ER 1..........................................120, 124 R v Panel on Takeovers and Mergers ex p Datafin [1987] QB 815.........................123 R v Returning Officer for Barnet and Finchley ex p Bennett (3 June 1983) unreported, CA.....................................................................................................63 R v Taylor (1895) 59 JP 393.......................................................................................61 R v Waltham Forest Borough ex parte Baxter [1988] 2 WLR 257....................32, 107 R (Securiplan) v Security Industry Association [2008] EWHC 1762.......................96 R (Woolas) v Parliamentary Election Court for Oldham East and Saddleworth [2010] EWHC 3169........................................................................................68, 90 R (Woolas) v Parliamentary Election Court for Oldham East and Saddleworth (CO/11578/2010, 8 November 2010)..................................................................68 Re Bennett (1993) 2 HRNZ 358................................................................................57 Sadak v Turkey (2003) 36 EHHR 396.................................................................35, 38 Sanders v Chichester [1995] 92(3) LS Gaz R 37..................................... 63, 64, 65, 66 Sauve v Canada (A-G) (No 2) (2002) DLR 218 (4th) 577......................................57 Sawyer v Ahsan [1999] IRLR 609...................................................................114, 115 Scarth v Amin (unreported, Bradford, 1 May 2008)................................................93 Scott v Gray (1999) HREOC H98/76..............................................................115, 117 Simmons v Khan [2008] EWHC B4 (QB)................................................................93 Stockdale v Hansard (1839) 9 A & E 1....................................................................133 Stowe v Joliffe (1874) LR 9 CP 734...........................................................................56 Sue v Hill (1999) 165 CLR 178.................................................................................58 Sukhovetskyy v Ukraine [2006] ECHR 265..............................................................37 Sullivan v Della Bosca (1999) NSW Sup Ct 136 ....................................................119 Sykes v Cleary (1992) 176 CLR 77............................................................................58 Thornley v Heffernan (1995) NSW Sup Ct BC 9505091.......................................119 Tucker v MacDonald [2001] Qd Sup Ct 6735........................................................120

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Table of Cases

United Communist Party of Turkey v Turkey (1998) 26 EHHR 121........................34 Watkins v Woolas [2010] EWHC 2702 ....................................................................68 Watson v Ayton [1946] KB 297...........................................................................62, 64 Watt (Carter) v Ahsan [2007] UKHL 51................................................................115 Weir v Harmon [2001] NIJB 260 Ch D..........................................................111, 113 YL v Birmingham City Council [2008] UKHL 27..................................................127 Zdanoka v Latvia [2006] ECHR 231..................................................................35, 37

1 Parliamentary Comings and Goings We are not acquainted with the learning of elections, and there is a particular cunning in it . . . Gould J, Ashby v White (1703)

This book is about a certain small part of the ‘learning of elections’ and its ‘particular cunning’. As Mr Justice Gould reminds us in the great voting rights case of Ashby v White, the law of elections is unique. Its political nature and the atten­ dant consequences at stake mean that it has long been the subject of a fierce battle for control between the judiciary and Parliament. Eventually jurisdiction went to the courts in the form of election petitions, and Parliament contented itself with very occasional reforms of eligibility law. The great election law contests of the past were seen largely as settled. And, for most of the last century electoral law was not often challenged, revised, or even much thought about. Electoral law concerned few and was studied by even fewer. But in the last decade or so, the law relating to one aspect of elections in par­ ticular has begun to feature much more often in statute books and law reports. A flood of litigation was triggered by an unhappy unsuccessful party candidate who had missed out on selection because he was not female; Parliament enacted a series of amendments making it easier to stand for election; and election petitions burst back into prominence after nearly 100 years as electoral fraud was increasingly unmasked. The point of electoral law is generally understood to be the creation and then regulation of the means for translating the popular choice of representatives into a working legislature and representative government. In short, elections are a nec­ essary precondition for democracy. Underpinning this functionalist yet aspirational conception of electoral law is the view that it also serves to legitimate the exercise of state power. As Graeme Orr has put it: Public or state power in a mass democratic state . . . ultimately rests [on,]and owes its legitimacy not just to motherhood notions of the sovereignty of the people, but to the detailed mechanisms and regulations by which elections are conducted and managed.1

1   G Orr, ‘The Cinderella Status of Electoral Law as a Field of Study in Australia’ (1998) 7(2) Griffith Law Review 166, 167.

2

Parliamentary Comings and Goings

Electoral law, or the law of making and unmaking representatives, is fundamental to our constitution – this field of law provides the framework within which polit­ ical conflict is channelled into constructive legislative results. Indeed, electoral law can in large part provide the foundation for the operation of the constitutional system: determining how many representatives there are, their respective propor­ tions in the legislature, affecting the formation of government and whether it be single-party or coalition. All these factors which affect the exercise of public power can rest on the technicalities of election law. Despite its importance and long history, electoral law is but a newly-established field of legal inquiry. Although it has overcome the doubts expressed by Austin as to whether, with regard to the law concerning candidates’ eligibility to stand, it is properly constitutional law at all,2 at the present time, the law of elections has few scholars devoted to figuring out its puzzles, a small number of specialist texts and is rarely offered as a subject for legal study in the universities.3 But even within that context, ‘electoral law’ is usually understood to be the law relating to participation in the electoral system – texts on electoral law discuss the legal aspects of boundary drawing, the voting system in use and its alternatives, the law relating to who may or may not vote, the development and delineation of electoral offences, and the regulation of political expenditure. In this book we look at electoral law from a different perspective, taking it to mean the law of being elected to Parliament. This process involves a series of steps, each of which involves some aspect of legal regulation. Before entering Parliament, those hoping to become members must pass through three stages of election regulation. First, they must, if they hope to repre­ sent a political party, be chosen and nominated by that party as its representative. Secondly, after selection but before the election is held, they must then have their nomination accepted by the appropriate electoral official, having satisfied him or her that they possess the qualifications prescribed by law (or have not incurred the disqualifications) for candidates. Thirdly, they must win the electoral contest, and survive any challenge to their win in the form of an election petition. Having then taken their seat in Parliament, the journey is not yet over. Members of Parliament (MPs) may yet find themselves disqualified and removed from Parliament, either by incurring one of the statutory disqualifications or through the exercise of Parliament’s privilege of regulating its own composition.

2   See FW Maitland, Constitutional History of England (Cambridge University Press, Cambridge, 1908) 531. 3   See DH Lowenstein, ‘Election law as a subject – a subjective account’ (2002) 32 Loyola of Los Angeles Law Review 1199, tracing the evolution of interest in election law from academics and practitioners in the US.



Thinking About Electoral Law

3

I.  Thinking About Electoral Law This book examines three related questions in the field of representation and elec­ toral law. The first is: What are the concerns of the law in the field of representa­ tion? The second is: What is the nature of the law on representation? The third is: How should it be reformed? Taken together, these interlinked questions cover the little-investigated field of determining entries to and exits from Parliament, that is, how parliamentary representation is achieved and maintained through law. As to the first question, we must recognise that achieving (and retaining) the goal of election to Parliament is not a matter of a single closed transaction. Rather, it is better conceived as a series of steps from aspiring candidate to fully-fledged MP. Along the way, those hoping to become representatives must overcome the hurdles of eligibility, nomination, selection, any petition and avoidance of disqualification or expulsion. As these are examined, the opportunity has been taken to subject to critique some aspects of electoral statutes and the common and parliamentary law dealing with election matters. As we look at each of these stages, a theme will begin to emerge: the thread which runs through these stages is a question about the nature of electoral law. How has it been conceived of throughout history, and more importantly, how should it be conceived of? Is it best seen as a form of private law, outwith the State and its concerns, or is the opposite the case? In The Idea of Public Law, Loughlin wrote that public law is a singular and dis­ tinct field of inquiry with its own peculiar attendant concerns.4 Loughlin claims that what sets public law apart is that it is concerned with the activity of governing the State.5 While this may seem trite, he notes, it is because this context is ‘taken as a given rather than treated as an issue of inquiry’.6 This book seeks to apply Loughlin’s insight to a sub-field of public law: the law of election. Thus, the thread that binds this investigation into the different stages of the process of becoming an elected representative and maintaining that status is the view that electoral matters are quintessentially public law matters. As with the comments about public law itself writ large above, this may seem obvious, especially when we consider the political background against which electoral law plays out and the political result it is designed for; but surprisingly, it is not the assumption upon which electoral law has often rested. A peculiar feature of the law’s approach to the questions which crop up at the various stages of the electoral journey is a reluctance at times to acknowledge their public nature. Certain aspects of the electoral experience are characterised as private events: action over candi­ date selection is seen as akin to a private club dispute; the challenge to an election outcome, a contest between two private individuals.   M Loughlin, The Idea of Public Law (Oxford University Press, Oxford, 2004) 153.   Ibid. 6   Ibid. 4 5

4

Parliamentary Comings and Goings

One particular tool of analysis employed here is human rights law. When the two major UK texts on electoral law were written, Hugh Rawling’s Law and the Electoral Process in 1988, and Robert Blackburn’s The Electoral System in Britain in 1995, human rights jurisprudence did not have a high profile in electoral law. Now, with the incorporation of the European Convention on Human Rights (ECHR) into domestic law via the Human Rights Act 1998, human rights have the potential to become the dominant lens through which the legal issues pertaining to elections are viewed. Human rights laws affect many aspects of the process of becoming elected – restrictions on candidate eligibility may interfere with a voter’s freedom of electoral choice or a potential candidate’s right to stand for election; candidate selection processes may implicate freedom of association or anti-­ discrimination provisions; election petition rules may offend access to justice rights. Where possible, reforms are suggested to bring electoral law closer to human rights compliance. The main means of investigation is historical analysis of the law. In each chapter there is some discussion of varied length of the historic position taken by the law before the present law was adopted by statute or evolved to its current common law position. The discussion at times refers to the unique form of law known as parliamentary privilege – the law relating to the customs, powers and privileges of parliamentarians – for the law of electing has not been the preserve only of judges and legislators. Where appropriate, the law is analysed for consistency with the principles pur­ porting to govern it – be they drawn from treaties, such as the ECHR, or be they embedded principles of constitutional law such as separation of powers or judicial independence. The question of internal and international consistency is also con­ sidered – does the legal position accord with the position in other aspects of elec­ toral law or other similar jurisdictions (and, of course, should it)? In some cases, of course, there is no consistency, the law being in some places (as Jennings said of constitutional law as a whole) ‘not a system at all but a mass of disconnected rules depending on historical accidents’.7 This is particularly the case with election law, which, because of its subject matter, has had its development driven by political concerns and events more so than most other branches of law. In traversing these issues, help is sometimes drawn from other jurisdictions. No one legal system can claim to have contained within it all the answers to its elec­ toral law choices. Two jurisdictions in particular which are referred to are Australia and New Zealand. These were chosen because their legal heritage is based squarely on the English common law, enabling relatively easy comparison. Both countries also inherited the English law of parliamentary privilege, which has at times played a significant role in determinations over representatives’ abilities to remain in Parliament. The Australian and New Zealand Parliaments are closely based on the Westminster Parliament, and they have either used, or continue to use, the same electoral system as the UK. New Zealand once used First-Past-the-Post exclusively,   I Jennings, The Law and the Constitution, 5th edn (Hodder & Stoughton, London, 1959) 71.

7



The Chapters

5

and now employs a hybrid system of list proportional representation and FirstPast-the Post for its Parliament; Australia also used First-Past-the-Post until it adopted the Alternative Vote system for its lower House in 1918 and the Single Transferable Vote system for the upper House in 1948. These political and legal similarities play out against a common cultural background.

II.  The Chapters In its role of the regulator of a political activity, electoral law stands at the juncture (or, as some have said, the periphery8) of two disciplines: law and political science. Chapter two comprises an examination of the theories about political representa­ tion employed by political scientists and lawyers. It concludes that each discipline has a different focus. While political theorists seek to explain what representatives do and are for, legislators, jurists and judges mostly ask: ‘What is the representative like?’ or ‘What should the representative be like?’ In addition, legal approaches to regulation still revolve around the trustee/delegate conceptions of representation, while political science and politics itself have embraced new ways of thinking about and acting on representation. This disciplinary divergence may have sig­ nificant implications for the regulation of this inter-disciplinary field, and could possibly explain the rather less than coherent state of electoral law. These theories about representation are also provided as a backdrop for the stages of the electing process the later chapters address. Chapter three is a critical overview of the eligibility rules for parliamentary can­ didacy and membership in the UK. It explores whether there is a common theme or set of principles which underlies these restrictions, and discusses whether these should be amended in light of overseas models. It also looks at recent changes in eligibility rules and the impetus therefor. Assuming one meets all the criteria, chapter three then considers the tricky issues surrounding nomination: the point at which qualification or disqualification should be decided, and by whom. Chapter four discusses the prior and current means for determining the out­ come of a controverted election. The transition from the courts to Parliament’s privilege of regulating its own composition and then back to judicial control of disputed elections through the election petition jurisdiction is traced, and the issues and concerns of this aspect of electoral law are teased out. A series of reforms addressing the deciding of disputed elections along with more stringent regulation of corrupt electoral practices accompanied the voting reforms of the 1870s. By the early years of the twentieth century, election petitions were becoming a curiosity. However, in light of the increasing litigation over election results in the last decade, coupled with a rise in corrupt activity surrounding elections, it may well be that election petitions are seen in the courts more frequently. This chapter therefore   Lowenstein, above n 3, at 1199, commenting that ‘Junctures are also peripheries’.

8

6

Parliamentary Comings and Goings

contains some suggestions for reform of the current law on election petitions. These proposals are driven by the need to acknowledge the underlying public nature of the electoral petition. Chapter five embarks on analysis of the different legal models used to challenge candidate selection processes in the courts. This sort of litigation has become more common as the real election battle transfers from the seat itself to the party selec­ tion for the seat. It concludes that the current UK approach, which is based on contract law, is insufficient and does not acknowledge the public law element of candidate selection. It is argued that a second model, seeing candidature as a form of employment, which has enjoyed some vogue in the UK since the mid-1990s, is flawed, agreeing with the House of Lords’ recent view that it be abandoned. This chapter concludes that both of these regulatory approaches should be replaced with the quasi-public law Australian model. Chapter six considers the position of MPs who find themselves facing removal from Parliament during the parliamentary term. Outside some limited statutory disqualification procedures, traditionally, removal has been effected by Parliament itself, which has the ability to expel errant and unworthy members using parlia­ mentary privilege. The history and recent developments, in light of the MPs’ expenses scandal of 2009–10, of what might constitute unworthiness are examined for their impact on Parliament’s powers. This chapter also analyses the new Conservative–Liberal Democrat proposals to introduce ‘recall elections’, whereby electors can force a by-election in the case of MPs who have committed miscon­ duct. Lastly, in chapter seven, the findings of the preceding six chapters are synthe­ sised around two distinct points. The first is what has been revealed in this bring­ ing together of the various aspects of the legal regulation of the process of becoming elected and remaining so. The second point is that this area of law should be viewed as public in nature. This second conclusion leads us to the need for a reconceptualisation and reform of our current electoral laws.

2 Mapping out Representation Theory and the Law The existence of elected representatives is often considered to be one of the defining features of a modern democracy.1 Despite, or perhaps because of, that seeming permanency, the concept of representation has not remained uncontested. Most texts on representation begin by addressing the issue of whether a system of representative democracy is a poor substitute for direct democracy2 or a good thing in its own right.3 In addition to the long-standing debate over whether representation is a first- or second-best choice, more recently postmodernists have claimed that discussions of representation are undermined by the deconstructionist techniques exposing the indeterminacy of the citizen subject and have asked ‘Is representation even possible?’4 However, since representation exists as a well-established political and legal phenomenon, we take this as our legitimate starting point. We are concerned not with the over-arching questions of whether representation is good or even achievable, but with an internal question, that is, thinking about how representatives themselves are shaped and determined by law. What is it to be a political representative? How, if at all, is this meaning reflected in the legal construction of ‘representatives’? As issues of representation lie at the junction of politics and law, this chapter considers the contours and content of the term in each discipline. It examines the various conceptions of representation which have been proffered in language, through the writings of political scientists and philosophers, and in law. Through tracing these sometimes interwoven strands of understanding and usage, it is hoped that some commonalities will emerge from which we can proceed to analyse

1   RA Dahl, On Democracy (Yale University Press, New Haven 1998) 85 and 93–95; A Gutmann and D Thompson, Democracy and Disagreement (Harvard University Press, Cambridge, Mass, 1997) 358– 59; H Rawlings, Law and the Electoral Process (Sweet & Maxwell, London, 1988) 1. 2   Jean-Jacques Rousseau is usually taken as the pre-eminent advocate for direct democracy (see eg B Manin, The Principles of Representative Government (Cambridge University Press, Cambridge, 1997) 1). But see R Fralin, ‘The Evolution of Rousseau’s View of Representative Government’ (1978) 6(4) Political Theory 517, on the ambivalence of Rousseau’s thoughts on direct democracy. 3   See G Brennan and A Hamlin, ‘On Political Representation’ (1999) 29 British Journal of Political Science 109, 111–13 for a discussion of representative democracy as a ‘second-best’ alternative to direct democracy, and a defence of representation as ‘first-best’. See also Gutmann and Thompson, above n 1, 130–32, on representative democracy as a means of better decision making than direct democracy. 4   G Baker, ‘Revisiting the Concept of Representation’ (2006) 59(1) Parliamentary Affairs 155.

8

Mapping out Representation Theory and the Law

the role of the law in formulating an individual’s existence as a parliamentary representative. This of course assumes that there is a theory underlying the law, some reasoning the law is voicing, which may not prove to be the case. Thus, if there are differences or even omissions, then these too must be articulated and investigated, for these silences and dissonances also say something about the approaches of law and politics to their conceptions of representation.

I.  Some Definitions The term ‘representation’ has its origins in the Latin repraesentare, ‘to give immediate effect to; to bring forward into the present; to present to view, exhibit or manifest’.5 In classical Latin, the ordinary usage of repraesentare had no application to living beings or persons.6 At that time its use was confined to the making present of inanimate objects or the bringing forward of events into the present.7 It had no political connotations. But language, like time, does not stand still. If we advance a few centuries, we find repraesentare serving a new purpose. In his letter to congregants in Sicily in 590 CE, nominating a bishop to serve them, Pope Gregory wrote ‘ubi nos praesentesesse non possumus, nostra per eum, cui praecipimus, repraesentetur auctoritas’ (‘where we ourselves cannot be present, our authority should be represented through him to whom we send our instructions’).8 This clearly conveys the idea of one acting in place of another; in short, a delegate. Where did this additional meaning of representation come from? The historian Maude Clarke writes that from the time of the Emperor Augustus, the Romans experimented with administrative arrangements in their colonies which manifested some of the characteristics of representative assemblies. They were composed of delegates sent by the people (by election or sometimes appointed) and had limited powers of taxation.9 The idea of sending another in one’s place as a proxy, literally, to make those absent present, came to be aligned with the term previously assigned to inanimate objects. Clarke suggests that this idea of representative assemblies was adopted by the early Christian Church.10 Although initially representation was symbolic rather than delegatory, religious orders revived the idea of sending delegates to ecclesiastical assemblies in the twelfth century,11   PGW Glare (ed), Oxford Latin Dictionary (Clarendon Press, Oxford, 1982) 1621.   HF Pitkin, The Concept of Representation (University of California Press, Berkeley, 1967) 241.   Ibid. This distinction is perpetuated by the two major Latin dictionaries used by scholars. The Oxford Latin Dictionary does not cover the later Latin period; CT Lewis and C Short, A Latin Dictionary (Clarendon Press, Oxford, 1879) does. 8   First Epistle, 590 CE, in P Schaff and H Wace (eds), Nicene and Post-Nicene Fathers: Leo the Great; Gregory the Great (Hendrickson, Peabody, Mass, 1995) 73. 9   MV Clarke, Medieval Representation and Consent (Longmans, Green & Co, London, 1936) 281–82. 10   Ibid, 293. 11   Ibid, 303. 5 6 7



Some Definitions

9

and from there the strong links between ecclesiastical practice, civil law and early politics brought the concept back into the secular sphere.12 Possibly also influential in this shift in meaning was the Roman law concept of ‘quod omnes tangit ab omnibus tractari et approbari debet’ (‘that which touches all ought to be considered and approved by all’).13 Manin notes that it was spread by canon and civil lawyers into the public sphere, where it came to be associated with the notion of community consent to taxation.14 It was not at this stage solely concerned with the legitimation of government by the governed, but rather more with approving the proposals of the governors.15 It has also been suggested that the use of repraesentare in the theatrical sense, where an actor puts on the persona of another or portrays the likeness of another, was eventually transferred to the political world.16 The shift may have also come from the legal context, where an advocate would put himself in the place of or ‘try on’ the various perspectives of those involved in a trial, thereby assuming the person or image of another.17 In English the idea of representation seems to have surfaced in the late 1500s. In Thomas Smith’s De Republica Anglorum of 1583, he wrote of the parliament of Englande, which representeth and hath the power of the whole realme, both the head and the bodie. For everie Englishman is entended to bee there present, either in person or by procuration and attornies. . . . And the consent of that Parliament is taken to be everie mans consent.18

Smith also wrote of the representative as an ‘able and discreete man to be as it were the mouth of them all, and to speake for and in the name of them’.19 And in 1595 one Captain Wyatt wrote on the voyages of Robert Dudley: ‘Our Generall sent Cap. Jobson, repræsentinge his person with his authorite, as his Leiftenante Generall.’20 From the 1600s the term began to appear more frequently in political tracts. The 1640s marked a turning point. Parliamentarian writers, challenging the divine right of kings, began to write that   Ibid, 304–12.   On the history of the ‘quod omnes tangit’ doctrine, see G Post, ‘A Roman legal theory of consent, quod omnes tangit in medieval representation’ (1950) Wisconsin Law Review 66. 14   Manin, above n 2, 86–88. See also Clarke, above n 9, 161, who notes that the idea of legitimating government by popular consent began to be articulated probably around 1325. 15   Manin, above n 2, 88. 16   Q Skinner, ‘Hobbes on Representation’ (2003) 13(2) European Journal of Philosophy 155, 162. 17   Ibid, 161–62. See also Pitkin, above n 6, 25–27. 18   Thomas Smith, De Republica Anglorum, The Manner of Governement or policie of the Realm of Englande (Gregorie Seton, London, 1583) Book II, c I, rep as L Alston (ed), De Republica Anglorum: a discourse on the Commonwealth of England (Cambridge University Press, Cambridge, 1906) 49. 19   Ibid, Bk II, c 2; Alston, above n 18, 51. 20   Capt Wyatt, ‘The voyage of Robert Dudley, afterwards earl of Warwick and Leicester and duke of Northumberland, to the West Indies, 1594–95’ (1595) in the Oxford English Dictionary, 2nd edn (Oxford, Clarendon Press, 1989) (hereafter OED), at entry for ‘represent’. On the OED’s documentation of historical word usage, see S Winchester, The Meaning of Everything (Oxford University Press, Oxford, 2003). 12 13

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The Lords and Commons represent the whole Kingdome . . .21 The whole community in its underived Majesty shall convene to doe justice . . . and that the vastnesse of its own bulk may not breed confusion, by virtue of election and representation: a few shall act for the many.22 The house of Commons is chosen by the people and they represent the people . . .23 The fundamental rights, safety and liberty of the People; which is radically in themselves, derivatively in the Parliament, their substitutes or representatives.24

Even from these few examples, it can be seen that Parliament had come to be seen as a substitute for the people, a reflection or miniature of the polity.25 Thus already evident were two strands of modern representation theory. Representation was concerned with ‘making present, in some sense of something which is nevertheless not present literally or in fact’.26 Implicit also in these writings is the view that the represented also had some power of positive action, the representative being there to do something on someone else’s behalf. Representation, therefore, was not only about being, it was also about doing.

II.  Political Theories of Representation Behind these varied references is a backdrop of understanding which contextualises the way in which we employ the terms ‘representation’ or ‘representative’. This has practical consequences for what we might expect our representatives to do (or not do); who they should be; how we might interact with them. Several theories of representation have aimed to provide this background. This section does not pretend to provide a comprehensive or in-depth treatment of political theory, but rather to set out an introductory overview for the legal reader. Hanna Pitkin and Anthony Birch are two prominent writers who have attempted comprehensive overviews of the subject of representation. It will come as no surprise that they do not agree as to what representation means, or even whether it has one meaning or many. Birch, in his classic work, Representation, states at the outset that representation cannot be confined to one meaning. His position is that representation has a number of usages, each ‘logically distinct’ from the others.27 It cannot be said, therefore, that there is one correct meaning of representation. On the other hand, Pitkin, 21   H Parker, ‘Observations upon some of his Majesties late answers’ (London, 1642), cited in Skinner, above n 16, 162. 22   Parker, above n 21, cited in LF Brown, ‘Ideas of Representation From Elizabeth to Charles II’ (1939) 9 Journal of Modern History 23, 34. 23   P Hunton, ‘A Treatise of Monarchie’ (London, 1643) cited in Skinner, above n 16, 162. 24   I Pennington the Younger, ‘The Fundamental Right, Safety and Liberty of the People Briefly Asserted’ (London, 1651) cited in Pitkin, above n 6, 249–50. 25   Pitkin, above n 6, 82. 26   Ibid, 8–9 (emphasis in original). 27   AH Birch, Representation (Macmillan Press, London, 1972) 14.



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doyenne of representation theory, claims in The Concept of Representation that representation cannot be characterised as a shifting concept; rather, it is a ‘single, highly complex’28 idea. In an attempt to bridge this divide, a third way has been posited: that representation ‘may describe quite different [behaviours] in different circumstances while still possessing a unifying thread of meaning’.29 Essentially, representation theory asks three questions: Who is represented? What is represented? How is it represented?30 We now turn to some of the thinking on representation to see how those questions have been answered.

A.  Early Theories Birch begins with the nascent views of political representation in evidence from medieval times to the seventeenth century. The central question here was: Where was power located? Two competing theories sought to source power as coming from either above or below.31 The ‘ascending’ theory begins with a premise not unfamiliar to democracy theorists. Political authority is held by the people; this is then delegated by them to their rulers, primarily the monarch.32 Power is transmitted upwards. The ruler, as a symbol or representative of the people, exercised that authority in their interests. This conception survives to this day in our views of the monarch as symbol of the nation,33 albeit that any real authority has long gone. Here, once the question of where power was located has been satisfactorily answered (the ‘who’ question), the focus turns to the activities of representation (the ‘what’ question). This issue is not dealt with so satisfactorily. Left undefined at this point are several issues surrounding the concept of interests: What do we mean by ‘interests’? How are they known by the representative? How closely tied to those interests is the representative? The ‘descending’ theory locates legitimate authority elsewhere, usually in a divine source, and eventually realised itself in the notion of the divine right of kings.34 The monarch was thus answerable to God alone. Power is not shared with those below the one whom God has appointed. Under this theory, Parliament could be seen as a purely consultative body. It was in this context that the quod omnes tangit principle began to operate, with representatives being called in from different communities to be informed of and then consent to the ruler’s proposals.   Pitkin, above n 6, 8.   R Rogowski, ‘Representation in Political Theory and in Law’ (1981) 91 Ethics 395, 396. 30   A Weale, ‘Representation, Individualism, and Collectivism’ (1981) 91 Ethics 457. 31   W Ullman, Principles of Government and Politics in the Middle Ages (Methuen & Co, London, 1961) 19–26. See also AH Birch, Representative and Responsible Government (Allen & Unwin, London, 1964) 27–28, who attaches the terms ‘Tory’ and ‘Whig’ to these views. 32   Birch, above n 27, 23; Brown, above n 22, 34. See also GL Haskins, ‘Parliament in the Later Middle Ages’ (1947) 52 American Historical Review 667, 681–82, terming this view ‘propaganda’ on the part of Elizabethan and Stuart writers wanting to justify a more authoritative role for Parliament. The terminology of ascending and descending power was created by Ullman (see above n 31, at 20, fn 1). 33   W Bagehot, The English Constitution (Chapman & Hall, London, 1867) 53. 34   Birch, above n 27, 23. 28 29

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For example, the writs for the Parliament of 1213 state that representatives are required ‘ad loquendum nobiscum de negotiis regni nostri’35 (‘for speaking with us on the business of our kingdom’). Birch notes that this became the established theory, largely because of the influence of the Church36 and its close alignment with secular rule. Traditional ideas about representation began to be challenged in the seventeenth century, primarily by social contract theorists. The primary focus of investigation was the ‘how’ question. In a period of autocratic, unanswerable rule, writers began to ask how authority was transmitted or truncated. In other words, how is power authorised, and how is it held to account? The usual place to start in representation theory is with Hobbes’s Leviathan.37 For Hobbes, representation is a way out of the state of nature. Faced with the consequences of a lawless existence,38 where each must act in self-preservation, A commonwealth is said to be instituted, when a multitude of men do agree, and covenant, every one with every one, that to whatsoever man, or assembly of men, shall be given by the major part, the right to present the person of them all, that is to say, to be their representative.39

This view of representation is focused mainly on the creation of the relationship between the represented and the representative. The relationship crystallises at the point of power transfer, on the act of becoming one who represents (termed by Hobbes ‘the sovereign’). The election is the moment at which authority is vested in the representative.40 Representation is a form of single transaction rather than a re-occurring activity. Clearly associated with the representative is the idea of power. The representative can now make decisions for the represented, and bind them as if they themselves had made the decision.41 Representation is the right to act, which involves being able to personate the originator of authority.42 Beyond that transmission of power, there is little content to the relationship. It is a ‘relationship of rights and responsibilities’;43 but the beneficial traffic is all one-way. The sovereign assumes the rights, and the represented take on the responsibilities.44 Authorisation to the 35  Records of Returns to Parliaments of England (House of Commons, London, 1878) 1. The Parliament was that of John 1. 36   Birch, above n 27, 23. This concept can be seen in the Catholic theology of the Pope as the Vicar of Christ, God’s representative on Earth. Further on this point, see Ullman, above n 31, 35–44. See also Clarke, above n 9, 293–312, who suggests that the transmission of the idea of representation may well have been from the secular sphere to the religious, rather than the other way round. 37   As with most aspects of representation theory, even this orthodoxy has been challenged, with Pitkin’s view that Hobbes provided the first ‘systematic discussion of representation in English’ (Pitkin, above n 6, 14) recently described as ‘far from historically accurate’: Skinner, above n 16, 155. 38   T Hobbes, Leviathan (1651) ch XVII, § i; rep as AP Martinich, Hobbes Leviathan (Broadview Press, Peterborough, Ont, 2002) 125. 39   Ibid, ch XVIII, § i; Martinich, above n 38, 130. 40   Pitkin, above n 6, 43. 41   Hobbes, above n 38, ch XVIII, § i; Martinich, above n 38, 130. 42   Skinner, above n 16, 168. 43   Pitkin, above n 6, 19. 44   Ibid.



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sovereign cannot be fettered; it is in effect in advance and unlimited: a blank cheque. Once authorised, the ruler is not bound by duties to the represented but to the laws of nature. These require the representative to endeavour to keep the peace and maintain civil society (ie the very purpose for which the role was created). It is the representative who is the judge of what that requires.45 Accountability theory serves as a corrective to the deficiencies of authorisation theory. According to this perspective, a representative is one who, once elected, has to be held to account for his or her actions during the period of representation. The nature of the relationship between the represented and the representative in authorisation theory is reversed. The representative is bound to the represented; the notion of responsiveness is critically important.46 Locke saw the representative’s position as contingent: though like Hobbes’s sovereign the representative was entrusted to protect the life, liberty and property of the represented,47 if this trust was betrayed, the representative could be actively revolted against by the people,48 or in extreme cases replaced.49 Traditionally, the point at which accountability is measured is at elections.50 Termed ‘promissory representation’,51 once elected, mindful of the fact that potential electors will be looking back over the representative’s activities and voting record, representatives tailor their actions to satisfy their judges and so secure re-election. There are many standards by which a representative may be judged:52 by the party line, as a local community advocate, by the national interest, by the stance taken on a single issue such as disarmament, according to the interests of a particular class or sectoral group, as a representative of a certain gender, race, sexual orientation – the possible criteria are almost unlimited. Even a representative’s integrity may be a criterion. In the spring of 2009, an exposé of the abuses of the MPs’ expenses regime caused several representatives to announce that they would stand down at the next election, either voluntarily or at their leader’s behest; others were brought before special party committees to face the sanction of deselection. Still other MPs faced the ire of their constituents demanding their resignation for their perceived lack of integrity and ethical standards, demonstrating that parties and constituents alike were able to call representatives to account. This lack of limitation creates its own problems, notably the ‘full-line supply’ conundrum – when looking at the representative’s performance, does the voter   Hobbes, above n 38, ch XVIII, § viii; Martinich, above n 38, 133.   H Eulau and PD Karps, ‘The Puzzle of Representation: Specifying Components of Responsiveness’ (1977) 2(3) Legislative Studies Quarterly 233, 241–48. See also K Kollman, JH Miller and SE Page, ‘Political Parties and Electoral Landscapes’ (1998) 28(1) British Journal of Political Science 139, discussing how parties adapt their platforms to capture more votes. 47   J Locke, Second Treatise of Civil Government (1690) ch IX, § 131, rep as P Laslett (ed), Locke: Two Treatises of Government (Cambridge University Press, Cambridge, 1988) 353. 48   Ibid, ch IX, § 224–25; Laslett, above n 47, 415. 49   Ibid, ch IX, § 149; Laslett, above n 47, 367. See the speech of Burke, below n 63, for an example of a representative accepting this as the basis for his election loss. 50   Pitkin, above n 6, 56. 51   J Mansbridge, ‘Rethinking Representation’ (2003) 97(4) American Political Science Review 515. 52   See Birch, above n 27, 72–88. 45 46

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judge the representative according to one matter or the full range of policy stances taken during the term of office?53 The more diffuse the range, the lower the chances of being held to account for any one decision. New interpretations have challenged the established view of accountability timing. Promissory representation looks forward from the voter’s perspective, and backwards from the representative’s: does the representative act as promised from election throughout the course of representation?54 Anticipatory representation works in reverse: the representative tries to act so as to please future voters.55 This loosens the ties voters might exert over the representative in terms of adherence to policy, and forces the representative to become more consultative of current needs and moods.56 The ‘whom’ of accountability has also been reinterpreted of late, with Gutmann and Thompson asking whether local constituents are the only ones who can demand an account of a representative. They suggest that accountability goes beyond constituency boundaries and may be seen as a nationwide responsibility,57 or even as one that will be called in by future generations.58 Representatives may also be judged not by their constituents but by their party, which holds the power of re-selection, thus deciding whether or not the representative will face the electorate for re-election at all. Thus accountability becomes less of a linear relationship and more of a web of responsibilities, making the role of the representative increasingly complex. In both of these early theories, elections are significant in determining the role of the representative.59 However, they differ as to what purpose the election serves. For authorisation theorists, elections are for creating representatives: elections initiate the state of represented and representative, and transfer power from one to another. After that point, the representative is free to represent. This, as we shall see, filters into the trustee perspective on representation. For accountability theorists, elections are for assessing representatives: how well did they perform their role? The focus is not so much on creating the representative role as on continuing it. This evaluation of the representative’s activities according to a set of norms is perpetuated in delegate theories of representation, which are discussed below.

  A Reeve and A Ware, Electoral Systems (Routledge, London, 1992) 57.   Mansbridge, above n 51, 516. 55   Ibid, 517. 56  Mansbridge, ibid, 518–20, claims that this reversal in perspective transforms accountability into a systemic phenomenon. However, it seems clear that anticipatory accountability could operate outwith the involvement of the entire political communications system and be driven solely by the representative’s views. 57   Gutmann and Thompson, above n 1, 145–51. 58   Ibid, 155–64. 59   But see N Ward, ‘The Basis of Representation in the House of Commons’ (1949) 15(4) Canadian Journal of Economics and Political Science 477, providing examples of how representation may be severed from election yet still be legitimate. 53 54



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B.  The Representative as Delegate or Trustee? The choice between the role of delegate or trustee remains the central dilemma in representation theory and political practice. Concerned with the structure of the representation relationship or how the representative should act, it asks how closely the representative should be bound, if at all, by the instructions or wishes of the electorate. A secondary question is in accordance with which directives the representative should act. Although dismissed by some as historically bound, and therefore inapplicable, in fact the choice between delegate or trustee roles remains very much alive in modern political expression and practice.60 Trustee theory is rooted in Whig conceptions of representation.61 Representation was tied to land: one represented a geographical community. Each community was the location for a particular economic or commercial interest: sea trading, wool growing, forestry and the like. Territorial representatives were aligned, therefore, with an identifiable and discrete commercial concern. In the Whig conception of Parliament, Parliament’s role was to serve as a forum where local interests could be aired, but with the understanding that Parliament would attempt, through deliberation, to reconcile those diverse interests in policies that would serve the national interest. Locke put the position of the trustee representative thus: For the people having reserved to themselves the choice of representatives . . . could do it for no other end but that they might always be freely chosen, and so chosen freely act and advise, as this necessity of the commonwealth and the public good should upon examination and mature debate be judged to require.62

The most celebrated articulation of this theory can be found in Edmund Burke’s classic speech to the electors of Bristol in 1774. For Burke, government is a form of trusteeship. First, a representative must be more than simply a local agent. Representatives might be elected from a particular territorial base, but when they come to Parliament, they should seek to advance not the local interest but the national: Parliament is a deliberative assembly of one nation, with one interest, that of the whole – where not local prejudices ought to guide, but the general good, resulting from the general reason of the whole. You choose a member, indeed; but when you have chosen him he is not a member of Bristol, but he is a member of Parliament. 60   See D Judge, Representation (Routledge, London, 1999) 58–66; L Radice, E Vallance and V Willis, Member of Parliament, 2nd edn (Macmillan, London, 1990) 3–7; Ward, above n 59, 479–86, noting that a member can be both at the same time; H Eulau et al, ‘The Role of the Representative: some empirical observations on the theory of Edmund Burke’ (1959) 53(3) American Political Science Review 742, 750, term those who alternate between roles ‘politicos’. 61   On Whig theories of representation generally, see Birch, above n 27, 38–40; Birch, above n 31, 28–31; Rawlings, above n 1, 7; and Judge, above n 60, 47–49. Challenging this account of Whig theory, see Eulau et al, above n 60, 746–48. 62   J Locke, Second Treatise of Civil Government (1690), ch IX, § 222, in E Barker (ed), Social Contract – Essays by Locke, Hume and Rousseau (Oxford University Press, London, 1960) 185–86.

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Your representative owes you, not his industry only, but his judgment; and he betrays you, instead of serving you, if he sacrifices it to your opinion.63

Secondly, a representative cannot be bound too closely (or instructed), for that would be to frustrate the purpose of Parliament: What sort of reason is that in which the determination precedes the discussion, in which one set of men deliberate and another decide, and where those who form the conclusion are perhaps three hundred miles distant from those who hear the argument?64

Nevertheless, the representative does not have a licence to do as he pleases once elected. Where the representative’s record continually conflicts with constituents’ desires, Burke was careful to note, when answering the charge that he had neglected Bristol’s interests: ‘I received your trust in the face of the day, and in the face of day I accept your demission.’65 In the Lockean sense, he has gone beyond the boundaries of the trust placed in him. According to this perspective on representation, what is represented is not people but interests.66 It is disputed whether these interests are objectively determinable by the representative67 or subjectively known and articulated by the people,68 but it is interests which are central. This allows the concept of virtual representation to be introduced.69 A representative may advance the interests of an area to which he has not been elected, since, given that there is no difference between the trading interests of Bristol or Birmingham, it matters not that the people of Birmingham have no elected representative. Their interests can be represented just as effectively by the member for Bristol. Unfortunately for the residents of Birmingham, since they have no elected representative, they cannot hold him to account either. (The concept of virtual representation had the side-effect of denying the need for franchise extension.) The view of what interests are represented has also shifted from its territorial focus. Interests may still be local/commercial, but one can also represent opinions, class or groups, parties or a particular set of principles.

63   E Burke, ‘Speech at the Conclusion of the Poll’ (3 November 1774) in P Langford (ed), The Writings and Speeches of Edmund Burke Vol III (Clarendon Press, Oxford, 1996) 69. Interestingly, Burke delivered this speech only once he knew that his election was assured: J Connif, ‘Burke, Bristol, and the Concept of Representation’ (1977) 30 Western Political Quarterly 329. On Burke generally, see Eulau et al, above n 60. 64   Burke, in Langford, above n 63, 69. 65   Burke, ‘Speech on the Hustings at Bristol’ (9 September 1780) in Langford, above n 63, 667. 66   We put to one side the issue of when interest advancement morphs into patronage or falls into corruption. 67   See Pitkin, above n 6, 168, and Judge, following Pitkin, above n 60, 49. 68   Connif, above n 63, 330–33, criticising Pitkin’s interpretation of Burke. Although see JC Wahlke, ‘Policy Demands and System Support: The Role of the Represented’ (1971) 1 British Journal of Political Science 271, doubting whether citizens can ever know their interests, or Brennan and Hamlin, above n 3, 115–18, claiming that even if they believe they do, their belief will be ‘systematically under-informed and faulty’. 69   Burke, ‘Letter to Sir Hercules Langrishe on the Roman Catholics of Ireland’ (3 January 1792) in Connif, above n 63, 338–39.



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Delegate, or mandate theory, conceives of the representative not so much as guardian but as a mouthpiece. The representative is literally to ‘re-present’ his or her constituents, with varying degrees of autonomy. Harking back to earlier usage, representation is seen as a substitute for direct democracy.70 The function of the representative is not to discern the national interest (which exists separately rather than as an aggregate of community interests) but to promote sectional interests.71 Too much independence is inconsistent with this form of representation. A delegate may be permitted to act only in accordance with explicit constituent instructions; or may have some discretion to act, but must, before doing anything new or controversial, consult with constituents, and then do as they wish or else resign; or act as she thinks constituents would wish, unless instructed otherwise.72 Consistent with theories of promissory accountability, the terms of the delegate representative’s limitations are found in campaign promises or platform, or the manifesto of the candidate’s political party. These can be said in a sense to form a contract between the represented and representative, breach of which renders the contract voidable. In direct opposition to trustee theory, what is represented here is not interests but people. This necessitates a close relationship between the representative and the people, so that their wishes may be discerned and carried out.73 The closer the representative is (or believes she should be) to the people, the more tightly bound to their wishes she is. A delegate who does not effect the wishes of her constituency runs the risk of not being re-elected. In extreme cases of delegate theory, the delegate is at risk of having her representative status revoked while the legislature is still in session, should she not comply with the instructions of her constituents.74 In sum, the trustee/delegate choice can indicate whether one sees the purpose of a representative system as being about elite competence or mass participation.75 Those who consider that representation should be about effecting the people’s unmediated voice see the proper role of a representative as a delegate; those who think that representatives should act with discernment and uncover, through deliberation with other experts, the best interests of the nation, as a trustee.   Birch, above n 27, 45; Pitkin, above n 6, 86.   Birch, above n 27, 7886. 72   Pitkin, above n 6, 146. 73   For an empirical study of delegate theory, see DJ McCrone and JH Kuklinski, ‘The Delegate Theory of Representation’ (1979) 23(2) American Journal of Political Science 278, 280, noting that for delegate theory to be effective, not only must the delegate be close to her constituents, she must see herself in the role of a delegate as well. 74   This was the form of delegation practised during the Paris Commune, and spoken of approvingly by Marx: see K Marx, ‘The Civil War in France’ (1871) in H Draper (ed), Karl Marx and Frederick Engels: Writings on the Paris Commune (Monthly Review Press, New York, 1971) 74. The concept of a mandate which is revocable outside of elections persists in California, where elected officials (although not legislature members) are subject to the recall process. Arnold Schwarzenegger was elected as Governor of California after the then Governor, Gray Davis, lost the 2003 recall election which was held subsequent to a petition signed by 1.66 million voters calling for his removal from office. 75   RW Krouse, ‘Two Concepts of Representation: James and John Stuart Mill’ (1982) 44 Journal of Politics 509, 510. 70 71

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Despite this difference, in both trustee and delegate conceptions of representation, notions of accountability are key. For delegates, the terms of accountability are clear and determined in advance; for trustees, the terms of the trusteeship are fluid, and will finally be determined only at the next election. But to be a delegate or trustee is in the hands of the representative; the people cannot force their preferred role onto their representative prior to or during the term of office. In early systems of representation, the idea that the representative should necessarily have much in common with the electorate was a foreign one. On the contrary, Whig writers such as Burke thought it preferable that representatives should be cut from a superior cloth.76 This would enable them to deliberate dispassionately and make decisions in the best interests of those they represented. Tied to this view, it was generally thought that the elite who comprised the body of representatives should be closely identified with a geographic locality. Many modern writers on representation still identify place (and the people therein) as the primary responsibility of a representative, as do the majority of representatives themselves.77 Elections are still conducted on this basis, and successful representatives identified by their locale. The contest between delegate and trustee identifications takes place within this framework.

C.  Identity Representation Identity or ‘microcosmic’78 representation suggests a new paradigm for thinking about representatives. Focusing not on where representatives are from but on their likeness to the represented, representatives are seen as a reflection or microcosm of the polity. This in turn creates a new set of expectations about how representatives might behave. Thus the concerns of who representatives are and what they do come to align. At first blush, identity representation appears to be a relatively modern concern, but it can be seen in early writings on Parliament – if the institution acts for the nation, it must therefore be representative or symbolic of the nation. The idea that the composition of the representative institution should be reflective of the greater community was advocated in modern times by Jeremy Bentham and James Mill, and was tied to the ends of utilitarian philosophy. Assuming that 76   See Burke, ‘Speech at the Conclusion of the Poll’ in Langford, above n 63, 68–69; SH Beer, ‘The Representation of Interests in British Government: Historical Background’ (1957) 2(3) American Political Science Review 613, 616. Even JS Mill, more usually seen as an advocate of increased popular participation in government, in his earlier works expressed a preference for elite representation: Krouse, above n 75, 522–25 (thus JS Mill is sometimes put forward as an advocate of the trustee form of representation). Brennan and Hamlin, above n 3, 113–14 provide a modern defence of the need for representatives to be, or have access to, experts. 77   Reeve and Ware, above n 53, 114–30. A Walker and E Wood, ‘The Parliamentary Oath’ (House of Commons Library Research Paper, London, 14 February 2000) 13, report on a survey of MPs first elected in 1997, 86% of whom ranked ‘being a good constituency member’ as their first priority as a representative. 78   Birch, above n 31, 47.



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the overarching individual and societal goal is to maximise happiness,79 more reflective representation was important because of the impossibility of representatives being able to articulate the interests of their constituents (because they could only be fully known by the constituents)80 and then being trusted to act on them. This was a challenge to the Whig view that the national interest stood above the aggregate of individual or community interests. Also, in direct contrast to Burke’s vision of the disinterested ruling class, it was thought that representatives, being members of an elite, would tend to act so as to promote their class’s interests, rather than society’s.81 A more representative institution would see a wider range of interests reflected, which would see the overall happiness of society maximised. One of the problems with this theory is that it took no account of degree or intensity of interest: if a majority felt only mildly in favour of some issue, their views would nonetheless prevail even if a minority would be badly affected by the decision.82 And despite James Mill’s wish that governments should ‘have an identity of interest with the community’,83 Mill found himself unable to advocate for the enfranchisement of all men (let alone women) so that they could have their interests represented.84 To be fair, this was premised on his view not so much that they had no interest, but rather that they had no separate interest which could not be represented by another. Thus older men would represent the interests of younger men,85 men the interests of their wives and daughters.86 John Stuart Mill came to a similar result via a different path. He moved away from utilitarianism to suggest that a representative government was one in which the amount of public participation was ‘as great as the general degree of improvement of the community will allow’.87 To secure more enlightened decision making, more individuals should be allowed an input into the sovereign power of the State.88 He was much influenced by the writings of Thomas Hare, a barrister who devised an electoral system premised on multi-member constituencies where electors expressed a ranked preference for the candidates.89 Under that system, people 79   J Mill, ‘Essay on Government’ in T Ball, James Mill Political Writings (Cambridge University Press, Cambridge, 1992) 5; J Bentham, Constitutional Code (1830), § 1, in J Bowring (ed), Works of Jeremy Bentham Vol IX (Edinburgh, William Tait, 1843) 5. 80   J Mill in Ball, above n 79, 11–12; Bentham, in Bowring, above n 79, 5. 81   J Mill in Ball, above n 79, 26; Bentham, in Bowring, above n 79, 102. 82  Birch, above n 31, 47. 83   J Mill in Ball, above n 79, 34. 84   J Mill in Ball, above n 79, 27; Bentham, in Bowring, above n 79, 106, on the other hand supported women’s enfranchisement but opposed women representatives – not on principled grounds, but because it would ‘lead to nothing but confusion and ridicule’. On the difference between Mill’s and Bentham’s conceptions of democracy, see F Rosen, Jeremy Bentham and Representative Democracy (Clarendon Press, Oxford, 1983) 168–82. 85   J Mill in Ball, above n 79, 28. 86   Ibid, 27. 87   JS Mill, Considerations on Representative Government (1860) ch III, rep as AD Lindsay, John Stuart Mill: Utilitarianism: Liberty: Representative Government (JM Dent, London, 1962) 217. 88   Ibid. 89   See D Spafford, ‘Mill’s Majority Principle’ (1985) 28(3) Canadian Journal of Political Science 600, 606. Hare’s ideas survive as the Single Transferable Vote electoral system.

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whose preferred candidate was not elected would no longer be disenfranchised;90 there should be enough people across the constituency who shared their interests to ensure that a suitable representative for them was elected. Thus ‘not only the general opinion of the nation but every section’91 of the electorate would have representation; for JS Mill a representative body is a forum where each opinion in the nation ‘can produce itself in full light’.92 No one should be excluded from representation. This theory has been criticised on the basis of its logical conclusion – if everyone is to be represented, a Parliament composed of average citizens, or one that has its fair share of the less intelligent, is not necessarily desirable.93 To avoid this, identity representation is usually defined in terms of social categories rather than individuals or the aggregate of citizens. The need for greater diversity of representation, based on wider group identity, where representatives encompass a variety of life experiences, concerns and outlooks, has become an increasing point of concern in discussions of representation.94 In 2008 the House of Commons established a Speaker’s Conference with the command that it ‘consider, and make recommendations for rectifying, the disparity between the representation of women, ethnic minorities and disabled people in the House of Commons and their representation in the UK population at large’. In July 2009, the Conference issued an interim report, urging political parties to diversify their candidates for election, with special regard to the selection of women, black and minority ethnic, and disabled candidates.95 The final report, issued in January 2010, made this point even more strongly, recommending that legislation be introduced to allow for parties to use all-black and minority ethnic shortlists.96 Diversity of representation is often premised on a need to remedy group inequalities and bring those previously excluded from political decision making into the fold.97 Other drivers of diversity include the need for simple equality of representation for previously unrepresented groups to improve the stability of the system; the combating of socially accepted or hidden discriminatory prac­tices which led to that under-representation; and the encouragement of greater engagement with the political process amongst minority groups to ameliorate   Ibid, 607.   JS Mill in Lindsay, above n 87, 239.   Ibid. 93  A Phillips Griffiths, ‘How Can One Person Represent Another?’ (1960) 34 Proceedings of the Aristotelian Society (supp vol) 187, 190, opined: ‘[W]e would not want to complain that the large class of stupid or maleficent people have too few representatives in Parliament: quite the contrary.’ 94   See, eg, R Ali and C O’Cinneide, Our House? Race and representation in British politics (Institute for Public Policy Research, London, 2002) 3–6; A Phillips, The Politics of Presence (Clarendon Press, Oxford, 1995). 95   Speaker’s Conference (on Parliamentary Representation), Interim Report (House of Commons, London, July 2009) 12. 96  Speaker’s Conference (on Parliamentary Representation), Final Report (House of Commons, London, January 2010) 7. 97   Ali and O’Cinneide, above n 94, 2–3; Phillips, above n 94, 5. 90 91 92



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alienation.98 Others see the call for greater representativeness as sourced in what has been called the politics of recognition99 – since in modern times identity is more fragile and contested, there needs to be visible acknowledgement of one’s presence in society, a ‘public acknowledgement of equal value’.100 The Speaker’s Conference referred to these reasons as well, stating that a more diverse House of Commons ‘would make it a more just, legitimate and effective legislature’;101 but it also pointed to the low level of trust in politicians amongst the general public, particularly in light of the recent abuses of the MPs’ expenses scheme, and posited that a more socially representative Parliament might go some way towards repairing that trust deficit.102 With these premises, identity representation theory often undergirds challenges to the legitimacy of representative institutions. It also forms the impetus for campaigns in favour of changing the electoral system to one of proportional representation.103 For those shy of taking such a radical step, other suggested means of improving the representativeness of representatives include quotas of some sort,104 or the manipulation of candidate selection practices or party tickets.105 The relationship between the representative and voters in the identity representation model is cast in rather different light from earlier frameworks. The representative is not expected to ascertain and then act on voters’ wishes; rather, the representative is such that she will act in accordance with the values shared by, or interests of, that identity group, without having to be told them in advance. She already knows what they are by virtue of sharing that identity. Of course, that depends on the representative positively assuming that identity and being willing to act on it. Further questions must also be asked whether the group in question has a singular perspective that can be accurately represented by one member who shares that identity – can it be said that there is a specific identifiable ‘women’s’ perspective, for example? This places the focus of representation onto the outcomes of representation, there being an implicit assumption that a representative who shares your condition 98   Ali and O’Cinneide, above n 94, 2–6. But see JL Lawless, ‘Politics of Presence? Congresswomen and Symbolic Representation’ (2004) 57(1) Political Research Quarterly 81, 93, arguing that the symbolic effects of women’s representation do not manifest themselves as greater political engagement or trust on the part of women. 99  The phrase is Charles Taylor’s: C Taylor, ‘The Politics of Recognition’ in A Gutmann (ed), Multiculturalism: Examining the ‘Politics of Recognition’ (Princeton University Press, Princeton, 1994). 100   Phillips, above n 94, 40. 101   Speaker’s Conference, above n 96, 11. 102   Ibid, 12. 103   Although Reeve and Ware, above n 53, 132, put forward an alternative solution – to remove the role of candidate selection from local party organisations – suggesting that it is the inwards, localised focus of constituency organisations that prevents a ‘balanced slate’ of candidates being presented. Ali and O’Cinneide, above n 94, iii, reinforce this view, noting the ‘reluctance [of] local parties to pick candidates who do not fit their traditional image of MPs, or who they feel will alienate elements of the electorate’. See also J Perkins and DL Fowlkes, ‘Opinion Representation versus Social Representation; or Why Women Can’t Run as Women and Win’ (1980) 74 Am Pol Sci Rev 92. 104   M Caul, ‘Political Parties and the Adoption of Candidate Gender Quotas: A Cross-National Analysis’ (2001) 4 Journal of Politics 1214. 105   Ali and O’Cinneide, above n 94, 95–97.

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will act to improve it.106 It has been suggested that a group aim may be better advanced when those with clear identity connections are not involved.107 However, countering this, it is not at all clear that policy outcomes are the only thing that matter. Process108 or simply place may well be more salient. The symbolic value of having a representative of your ‘group’ involved in the legislative process may be just as, or more, important.109 And although Burke would probably be surprised to read it, there is a connection between his views on representation and identity representation, for is not identity representation a form of virtual representation? Voters can see themselves reflected in a representative outside their own geographic constituency, so that members of an ethnic, religious, or other minority can feel that they have a representative in Parliament other than the one for whom they were eligible to vote.110

D.  Party Representation Ideas about party representation are sourced not so much in theory but as an account of practice.111 This lack of developed theory is surprising,112 given that party democracy is the pre-eminent form of representative systems. The shift from an individualistic system of representation with loosely-formed loyalties and 106   Ibid, 5, reporting on the policy impact of the large influx of female Labour Party MPs at the 1997 election. 107   Weale, above n 30, 463–64. N Urbinati, ‘Representation as Advocacy’ (2000) 28(6) Political Theory 758, 777, writes: ‘Electors, one might say, do not seek an existential identification with their representatives; they seek an identity of ideals and projects.’ 108   Weale, above n 30, 464. 109   See, eg, the election of Georgina Beyer to the New Zealand Parliament, the first transsexual elected to a national legislature. When giving her valedictory speech, Beyer made specific mention of this phenomenon, saying: ‘I am very pleased and proud to say that I am no longer the only transsexual in the world to serve in a Parliament. When people have been asking me recently whether I have made a difference, from that count alone I think, yes.’ She also said: ‘For the gay community of New Zealand and certainly for the transgender community of New Zealand, my election was an inspiration . . . This has to add to our country – that significant minorities can have a voice, can have a say, and can stand for representation in this House.’ Valedictory speech of Georgina Beyer MP, NZ House of Representatives, Wellington, 14 February 2007, available at . See also the report on a gay candidate for the Estonian Parliament, claiming: ‘A seat in Parliament gives a person the status of a public figure, which permits the person to be seen, have a say and through this to make Estonia more tolerant.’ T Grew, ‘Estonian gay activist to stand for parliament’, Pink News Online (6 December 2006). 110   Mansbridge, above n 51, 523, relating the experiences of a gay Congressman who represents the concerns of gay and lesbian voters who live outside his constituency boundaries. Mansbridge terms this ‘surrogate representation’ but does not explicitly tie it to identity politics. Again, Mansbridge attempts to cast this as a systemic phenomenon which goes beyond the representative-constituent relationship, but both perspectives can comfortably co-exist. 111   See Birch, above n 27, 97–98; Birch, above n 31, 114–15; Judge, above n 60, 71. 112   There are of course exceptions: M Duverger, Political Parties: Their Organization and Activity in the Modern State, 2nd edn (trans B and R North) (Methuen, London, 1959) xii, acknowledged this problem, saying ‘a general theory of parties will eventually be constructed only upon the preliminary work of many profound studies; but these studies cannot be truly profound so long as there exists no general theory of parties’; JA Schlesinger, ‘Conceptual Approaches to Political Parties’ (1986) 19(4) American Political Science Association 860.



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shifting allegiances (other than to one’s local community) began to occur in the mid-nineteenth century, shortly after the expansion of the franchise.113 It quickly came to be the dominant form of political organisation, with the result that very few independent representatives are elected these days. Perhaps it is this very omnipresence as a background to modern representation which blinds writers on representation to its importance.114 In a system of party representation, the traditional personalised link between candidate/representative and voter changes to a link between party and voter. This can be seen in the tendency of voters to manifest long-standing party loyalties. These loyalties are said to be sourced in socio-economic divisions, there traditionally being in society a conservative (ruling class) camp and a socialist (working class) camp.115 Other divisions are possible too, most notably those along religious or linguistic lines. As with identity representation, party representation is a form of collective or corporatist representation. Assuming that members of a class have a shared collective interest, party representation is predicated on the assumption that voters will identify with a particular party which itself seeks to advance the interests of that class.116 This view has been challenged to some degree recently, with parties becoming less prominent in favour of their leaders – voters basing their party vote decision on an evaluation of the leaders’ personalities and qualities.117 The leader becomes the representative of the party, with image and ‘branding’ playing an important role in elections. This phenomenon is especially marked with the rise of mass media and its televised debates and advertising.118 The loyalty of the representative shifts away from voters to the internal party organisation (be that parliamentary or extra-parliamentary).119 Party discipline enforces adherence to the party line. Accountability to voters is weakened under this model, as voters’ allegiances are less likely to be determined by individual representatives’ behaviour. The electoral focus turns to the performance of the overall party. Thus the representative moves away from being a delegate of, or 113   J Fisher, British Political Parties (Prentice Hall, London, 1996) 2–28, tracing the development of the modern party system. 114   Or, sometimes, where that importance is acknowledged, the dominance and strength of the modern party system is not welcomed: A Tomkins, Our Republican Constitution (Hart Publishing, Oxford, 2005) 136–39. 115   Manin, above n 2, 209–10. Duverger, above n 112, xxiv–xxv, disputes this, saying that parties can also be formed from geographical, professional, or personal alliances. See also S Bowler, ‘Voter Perceptions and Party Strategies’ (1990) 23(1) Comparative Politics 61 on the phenomenon of parties’ ability to move through the policy space. 116   P Goren, ‘Party Identification and Core Political Values’ (2005) 49(4) American Journal of Political Science 881. 117  Manin, above n 2, 218–21; MP Wattenberg, ‘Do Voters Really Care About Political Parties Anymore?’ (1987) 9(2) Political Behavior 114. However, research by D Hayes, ‘Candidate Qualities through a Partisan Lens: A Theory of Trait Ownership’ (2005) 49(4) American Journal of Political Science 908, 913–14 indicates that voters evaluate the personality of the leader according to established party political biases. 118   Hayes, above n 117, 910. 119   On the conflicts in the location of representatives’ loyalties, see Judge, above n 60, 74–83.

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trustee for, her constituents to being a party delegate.120 There is less room under this system for the exercise of independent judgement or the trustee model of representation. Central to this new formulation of representative and voter loyalty is the doctrine of mandate.121 A party presents voters with a platform of policies, upon which it is putatively elected and therefore has a mandate to carry out. The manifesto becomes the standard of party behaviour. Representatives may find themselves in a position where they are required to vote contrary to their constituents’ interests due to the overriding commitment to the manifesto. Like all attempts to idealise political behaviour, this doctrine has flaws: it assumes that voters read, understand and vote according to the manifesto, rather than from long-established loyalties to their political ‘tribe’;122 it assumes that there is a meaningful policy choice presented to voters in parties’ respective manifestos, and that the elected government will carry out those policy promises;123 and it assumes that parties will be judged according to their earlier manifestos at subsequent elections (notwithstanding the full-line supply problem noted previously). Despite this, political scientists have been able to map political behaviour onto this model as the most approximate explanation for representative democracy in modern times.124 Party representation therefore forms the backdrop against which other theories and the modern experience of representation play themselves out.

E.  Which Theory Prevails? This chapter began the discussion of representation theory with two approaches to representation. One, that the nature of representation cannot be pinned down but has several distinct and different usages; the other, that representation was a complex concept with one meaning. From our brief survey, it is clear that representation cannot be distilled to one meaning. Pitkin’s attempt, defining representation as ‘representing here means acting in the interest of the represented, in a manner responsive to them’,125 leaves open a number of issues that might shed more light on the topic: What are interests? Why not people? What is responsiveness? How and when is it measured, if at all? Why the focus on action rather than identity? Who constitutes the represented? In attempting to find the essence of   Manin, above n 2, 211.   Birch, above n 31, 116–22; Judge, above n 60, 71–76. 122   But see Manin, above n 2, 222, noting that voters seem to respond to specific initiatives at elections. Fisher, above n 113, 28–29 concludes that partisan identification with a party is still strong, but began to decline in intensity in the 1970s. Goren, above n 116, 890–91 notes that party identification remains more stable than core values identification. 123   Manin, above n 2, 221, notes that voters appreciate that circumstances may necessitate a deviation from the manifesto. However, in some countries, the manifesto has become more a statement of general intention rather than a series of specific promises: see G Palmer, New Zealand’s Constitution in Crisis (John McIndoe, Dunedin, 1992) 146–48. 124   See Judge, above n 60, 95–96. 125   Pitkin, above n 6, 209. 120 121



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representation, we end up with a definition so broad we could fit almost any thoughts about representation of all colours and shades under it. Moreover, defying Birch, it seems that different aspects of representation manifest themselves in what purport to be distinct understandings of representation. In attempting to construct a neat taxonomy of the ways we think about representation, the various concepts under investigation defy categorisation, and present themselves throughout. The concepts of representation are not ‘logically distinct’.126 While to say ‘that representation is a muddle is accepted by most political theor­ ists’127 is perhaps overly despairing, there is some truth in the observation. For example, Burke’s theory of virtual representation takes new life in identity representation. The notion of interest representation spills over the boundaries of trustee/delegate theory into identity representation, and then into party representation as well. The idea of representative accountability manifests itself as we consider whether representatives are accountable to interests (and if so, which ones), or whether they are accountable to people. And what of those representatives who are unaccountable in some sense? Party representation also carries over the debate about elite representation into a new context. It reformulates the notion of delegacy, seeing the representative as a delegate of the party rather than the constituency, and replaces the traditional link of accountability between voter and representative with one of representative and party. Is the suggested compromise, that representation is different things at different times with a common link, a possible conclusion? As to the first part of the suggestion, the evidence seems to suggest that this is only partially true. Representation may be different things at different times, but it also seems that representation is also the same thing at different times. On the issue of commonality, we noted earlier the three central questions of representation theory: the who, what and how of representation. In each of theor­ ies we have explored, in trying to provide its own answers to these questions, there is a common thread: representation theory is very much concerned with the relationship between the representative and the represented.128 Whether the relationship is two-way, with methods of accountability in evidence, or one-way, in the Hobbesian view; whether the representative promotes people or their interests; whether the representative stands in place of her constituents, as a deputy, or symbolises them, by sharing their identity; whether the representative takes instructions, or acts according to judgement, pre-determined values, party manifesto or identity politics, these are the recurring notes which form the leitmotif of representation as a relationship. Closely linked to this focus on the representation relationship, political representation theorists also seem to idealise representation as taking place in a technical assembly-type environment, rather than that of the modern party system.   Birch, above n 27, 14.   Phillips, above n 94, 41. 128   Brennan and Hamlin, above n 3, 110, call this the ‘principal-agent’ problem, and ‘an unavoidable fact of life’. 126 127

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Investigations into to whom the representative is bound focus almost exclusively on the relationship with the constituent, with party loyalties secondary. Debates about accountability still focus largely on the nature of representatives’ judging by the represented. This is a very individualistic notion of representation, rather than a collectivist one. It would seem that the discussion of representation still seems to be taking place outside the model of modern political practice, that party rep­ resentation, even amongst political scientists, is yet to gain acceptance as a completely legitimate model for analysing representation rather than a phenomenon to be reported on. It is also noteworthy that most theories of representation have a particular focus on the representative. The representative appears to be a cipher of some sort, onto whom we project different ideas about who she is and what she is supposed to do. The represented, by contrast, seem to fade into the background, coming into focus generally only when they have to elect or re-elect the representative. Coming back to Hobbes and accountability theorists then, the represented are there to authorise and then judge the activities of the represented. Granted, the represented are more prominent in identity representation theory, but even there their existence justifies and delimits that of representative. To conclude, this survey and analysis of the idea of representation from a political theorist’s perspective leave us with many different moulds from which a representative may be shaped. None of these is unchangeable, and a representative may display the characteristics of one or more theories at any one time. However, it is usually the representative who is under scrutiny. Given that this aspect of political behaviour is closely controlled by law, we now turn to investigate they way in which the legal system and its actors have sought to control representation, in the hope that the analysis of this regulation may shed greater light on the who, what and how of representation.

III.  Jurisprudence of Representation As noted, much ink has been spilled on theories of representation, more than can be done justice here. But in the final analysis, the conditions and limitations of representation are the province of law. In 1940, John Fairlie wrote, ‘In the literature of law, there has been comparatively little discussion as to the nature of political representation.’129 After surveying the literature, he concluded that representation appeared to judges and legal writers as a choice between delegate and trustee theory.130

129   JA Fairlie, ‘The Nature of Political Representation, II’ (1940) 34(3) American Political Science Review 456. 130   Ibid, 466.



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Decades later, Fairlie’s opening statement remains largely true. The meaning and form, as opposed to the fact, of representation have not generally attracted much attention from jurists or judges. This may possibly be explained by the fact that in most instances when they come to consider representation, it is a dispute about the fact of representation, rather than its nature, which is the crucial issue; musings about what representation might be for or about are not necessary. Nonetheless, it seems curious that the law may be able to regulate such a crucial aspect of modern society without having a well-articulated understanding of what the concept entails.

A.  The Medieval Writs Notwithstanding the questions over its legal validity, the Parliament of 1265 under Simon de Montfort is said to be the first to which representatives were summoned on a general, rather than an ad hoc, basis.131 From this point on we begin to glean some knowledge of what representatives were supposed to be, or do, since there was legal regulation of the electoral process from almost the very beginning.132 Our starting point is the writs calling for representatives, for these contained some insights into what sort of people should be eligible to serve. There were two types of representatives: knights to serve in the county seats; and commoner men to serve in the cities and boroughs. Most seats returned more than one representative. The county seats in particular were often viewed as the personal property of particular aristocratic families which expected to either produce or control the representative in question. However, the responsibilities and legal status of the two types of representatives were the same. Few writs from the 1265 Parliament survive, but the available evidence reveals that not only were representatives of the nobility summoned, so were those from the ‘communaute de la tere’,133 indicating the importance of localised, territorial representation. (Prior to this, only knights had been called.) The wording of the writ required that in both cases ‘good men’ should be sent forth.134 The following parliament in 1268 expanded on this requirement and demanded, at least in relation to the city constituencies, men chosen from ‘the better, richer, more discreet 131  M McKisack, Parliamentary Representation of English Boroughs in the Middle Ages (Oxford University Press, Oxford, 1932) 1. See also A Lyon, Constitutional History of the United Kingdom (Cavendish Publishing, London, 2003) 58–63 on the de Montfort period generally. Parliaments were called before then: the first recorded Parliament is that of John in 1213 (see section II.A. above); the first Westminster Parliament was held under Henry III in 1254: Records of Returns to Parliaments of England, above n 35, 1. 132   Lyon, above n 131, 62, claims that after 1265, ‘it was to be a considerable period before the representation of the shires and then of the boroughs was to become the norm’, but the writings of McKisack, above n 131, and Clarke, above n 9, as well as the regular issuing of writs for representatives from this time onwards, cast doubt on this assertion. Perhaps Lyon is referring to the problem of non-attendance after election, which McKisack, above n 131, 66–81, acknowledges was a concern in medieval parliaments. 133   McKisack, above n 131, 4. 134   Ibid.

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and more powerful’135 amongst them. By 1295, we see the appearance of the phrase ‘quod omnes tangit’ in the writs, indicating the purposes for which representatives were sent, and possibly giving strength to the notion that a community or delegatory basis, where the one would substitute for the many, underlay the practice of representation.136 The writs quickly became standardised in the following century, so that at the turn of the fourteenth century sheriffs were invariably instructed to return for the shires ‘two knights girt with the sword, specially suitable and discreet’,137 and for the cities and boroughs another two representatives ‘more sufficient and discreet’138 than their counterparts. In 1413 a residency qualification was put onto the statute books, requiring that those chosen for the cities and boroughs be ‘Citizens and Burgesses resiant, dwelling and free in the same Cities and Boroughs and no other in any wise.’139 This, however, was largely ignored, although it had surfaced in earlier writs.140 In the mid-fourteenth century, the writs requested the election of men who ‘Be not pleaders, nor maintainers of quarrels nor such as live by pursuits of this kind, but responsible men of good faith, devoted to the general welfare.’141 The formula of ‘suitable and discreet’ or ‘sufficient and discreet’142 came to be the standard form for the electoral writ, and was in use until it was replaced by the writs in the Ballot Act 1872. For example, the writ issued in Middlesex in 1837 referred to ‘two Knights of the most fit and discreet, girt with swords [and] two Burgesses of the most sufficient and discreet’.143 Clearly, the ideas planted in medieval times still prevailed. The Ballot Act writs simply required a representative to be returned,144 without further qualification, but this is not surprising, since the   Ibid, 3.  L Riess, The History of the English Electoral Law in the Middle Ages (trans K Wood-Legh) (Cambridge University Press, Cambridge, 1940) 1–4 strongly resists this implication, saying that this is revisionism, arising from our own modern preferences for democracy. However, as he acknowledges, this is a minority position. The best that can be concluded, therefore, is that this is a disputed area. 137   McKisack, above n 131, 24; but see K Wood-Legh, ‘Sheriffs, Lawyers and Belted Knights in the Parliaments of Edward III’ (1931) 46 English Historical Review 372, 375–76, arguing that the call for knights with swords was not about status but an intermittent requirement and directed towards securing representatives who would support the monarch’s calls to war. 138   McKisack, above n 131, 24. 139   1 Hen V, c 1. 140   Riess, above n 136, 64. In 1385, the bailiffs of Barnstable refused to pay the expenses of John Henrys in attending Parliament as their representative on the basis that he was not an inhabitant of Devon but of Somerset: Records of Returns to Parliaments of England (House of Commons, London, 1878) 225. 141   McKisack, above n 131, 25. This is generally interpreted as referring to lawyers, but J Maddicott, ‘Parliament and the Constituencies’ in RG Davies and JH Denton (eds), The English Parliament in the Middle Ages (Manchester University Press, Manchester, 1981) 76–77 disputes this, saying it more probably refers to those who made their living from supporting others’ quarrels before the courts. 142   The particular meaning of the term ‘discreet’ is unclear. Rendered in Latin as ‘discretus’ from the verb discernere, it could mean either one who is discerning, and capable of making judgements, one of the translations proferred by Lewis and Short, above n 7, 586, or it could refer to a distinguished personage, one ‘set apart’, as in given by the Oxford Latin Dictionary, above n 5, 551. 143   WR Anson, The Law and Custom of the Constitution: vol 1 Parliament, 5th edn (Clarendon Press, Oxford, 1922) 62. 144   For the texts of these writs, see ibid, 57–59. 135 136



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law on candidate qualification had shifted into statutory form.The fact that the formula for the writs remained unchanged for nearly 600 years also shows a notable inattention on the part of the law to the various political theories surrounding representation that were being developed during that period. Aside from the insistence on a particular type of representative, also noteworthy in the medieval writs are the prohibitions on the eligibility of certain occupations for election. It seems that the integrity and transparency of representatives were early concerns. Riess notes that from 1373 onwards, the writs regularly contained a stipulation against the election of the sheriff, who was supposed to be conducting the election.145 This is explained on the basis of Parliament’s need to control the sheriffs, but another explanation is also possible: to preserve the integrity of the electoral system, those who administered it could not also benefit from it. The other profession excluded from election was lawyers, the reason for this being, as explained in the statute of 1372, to prevent lawyers profiting in Parliament from business on which they had been privately engaged.146 The writs show that in the very early stages of regulating representation, the law was concerned not so much with what representatives might do but with what sort of people they were. Character rather than activities was important. Unlike Fairlie’s conclusion, representation, from these sources at least, was not concerned with the delegate versus trustee theory (indeed, delegate theory was at best only hinted at). At this stage, this does not diverge significantly from the ascending and descending theories of representation outlined earlier, but it does show that the law emphasised the personal qualities and characteristics of representatives more than the division or location of political power. Little attention is paid to what representatives might do, although the issuing of the writs to certain localities and the references to community representation or a local tie indicate that geographical interests were seen as the first responsibilities of representatives.

B.  Three Common Law Jurists This section analyses the views of three of the common law’s most eminent jurists: Coke, Blackstone and Dicey. Their writings span a period of 300 years, from the early days of democracy to the establishment of the forerunners of today’s statutes on representation. This provides us with a parallel commentary on the law as it developed, and should give some insight into what the law was aiming to achieve. Coke commented in the Institutes on the representatives of the counties and towns, seeing them first as territorial representatives, ‘and these represent all the 145   Riess, above n 136, 66. Riess notes that an express prohibition became necessary after sheriffs on at least three occasions in the 1320s obtained their own election. This prohibition continued into the 1800s: see the writ of 1837 in Anson, above n 143, 62. 146   Riess, above n 136, 66–67. Wood-Legh, above n 137, 381, agrees. The statute is the Knights of the Shire Act 1372, 46 Ed III, but is found in the Rot Parl rather than the statute books as it was issued after the knights had been dismissed. This prohibition was routinely breached, JC Wedgewood, History of Parliament 1439–1509 Register (HMSO, London, 1938) xci, noting that in 1442 lawyers comprised 20% of the Parliament, and in 1491 25%.

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commons of the whole realm’.147 As to their purpose, they are gathered in Parliament ‘for the common good [where] there is ultimate wisdom’.148 This seems to be making it clear that local concerns will be superseded by national ones, an early statement of the Whig theory of representation. Coke then picks up on the preoccupation of the medieval writs, and speaks on the qualities of representatives, delightfully likening them to elephants: ‘[F]irst, that he hath no gall: secondly, that he is inflexible and cannot bow: thirdly, that he is of most ripe and perfect memory.’149 To elaborate, Coke hoped for representatives who would act ‘without malice, rancour, heat and envy’ so as to secure the good of the nation. Inflexibility here meant incorruptibility, an ability to stick to the path of the right, ie the common good, and the elephantine memory was supposed to guard against future problems by remembering past mistakes.150 Elephants and representatives alike, according to Coke, as well as displaying great intellect and virtue, were supposed to be social creatures, rather than solitary ones, and philanthropical in nature.151 Coke commented on the ‘sufficient and discreet’ formula of the writs, noting that this requirement could not be satisfied when a representative had a criminal past.152 Interestingly, he singles out the offence of treason, an early indication that the law was keen to maintain the integrity of the system. Yet his position on systemic conflicts of interest was not consistent, since contrary to statute, Coke opined that lawyers were eligible to be representatives, this arising by ‘common right’.153 William Blackstone, first Vinerian Professor of English Law, wrote his enduring Commentaries on the Laws of England in the years 1765–69. His comments on representation are few, but illuminating. In line with his era, Blackstone demonstrated a Whiggish view of representation. He was not so concerned with who representatives were as with what they did. Blackstone noted that separate county and town representation provided a clear demarcation of interests which were represented: those of the landed gentry by county representatives, and ‘the trading interests of the nation’ by town representatives.154 However, a representative was not tied to advocate for that geographically linked interest, since ‘every member . . . serves for the whole realm’.155 Blackstone also makes it clear that that representative was not a mere delegate, simply there to ‘advantage his constituents’;156 his concern was rather ‘the commonwealth’.157 Because of this, ‘he is not bound, like   E Coke, Institutes of the Laws of England, v 4, c 1, 1 (1644).   Ibid, 3. 149   Ibid. 150   Ibid. 151   Ibid. 152   Ibid, 47. 153   Ibid, 48. 154   HW Ballantine, Blackstone’s Commentaries (Blackstone Institute, Chicago, 1914) 476. 155   Ibid, 476–77. 156   Ibid, 477. 157   Ibid. 147 148



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a deputy in the united provinces, to consult with, or take the advice of, his constituents upon any particular matter, unless he himself thinks it proper or prudent to do so’.158 From Blackstone we move to AV Dicey, the next most distinguished holder of the Vinerian chair, and author of the constitutional classic Introduction to the Study of The Law of the Constitution.159 For Dicey, it appears that representation was a means for bringing into alignment the wishes of the sovereign (ie the Parliament) and the electors, so that political and legal sovereignty were aligned.160 Dicey also evinced a Whiggish perspective. He spoke of the ‘will of the nation’, indicating that this for him was more than the aggregate of local community interests. Dicey did not support proportional representation; even though he admitted that greater representation of interests in the Parliament (so that Parliament would more accurately mirror the mind of the nation)161 would be a good thing, he feared that diversity of opinion would encourage corrupt electoral practices and render Parliament impotent – a ‘mere debating society’.162 He was also concerned that proportional representation would lead to a proliferation of special interest representatives rather than those representing a broad spectrum of interests.163 These concerns trumped the desirability of broadening representation along the lines suggested by Bentham and the Mills. Prior to the turn of the twentieth century, most electoral litigation had focused on the immediate question of who was to be the representative, in the form of discerning the correct winner of the electoral contest. In the first half of the twentieth century, once this aspect of electoral law had largely been reformed and the corruption that created so many challenges had become a rare occurrence, attention turned to the characteristics of representation, and in particular whether the representative could be bound to any particular constituency of interests.

C.  The Views of the Courts and Parliament In Amalgamated Society of Railway Servants v Osborne,164 the House of Lords had to consider the question of whether a trade union could require certain representatives to ‘accept the conditions of the Labour Party and be subject to their “whip” ’165 in return for financial support from the union. Four of their Lordships approached the issue on the basis of whether this rule was ultra vires and decided it was not.   Ibid.   AV Dicey, Introduction to the Study of The Law of the Constitution, 8th edn, 1915 (rep Liberty Fund, Indianapolis, 1982). 160   Ibid, 34–35. 161   Ibid, lxxxiv. 162   Ibid, lxxxvii. 163   Ibid, lxxxviii–xci. 164   [1910] AC 87. 165   Ibid., 109, citing rule xiii, s 4, cl 2 of the relevant trade union rules. 158 159

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Lord Shaw took the question to be a broader constitutional issue about the nature of representation. His Lordship’s views were decidedly Whiggish; he pronounced as incompatible with the Westminster system of government and its values of representative freedom and independence any arrangement which would require a representative to vote in accordance with a predetermined party policy at the expense of his own convictions.166 Lord Shaw referred to the opinions of Coke, Blackstone and Locke in support of his conclusion, declaring that the essential characteristic of representation was that representatives must be, in the words of Locke, able to ‘freely act and advise’. Any fetter on that freedom, induced by money or otherwise, was illegal and a breach of public policy. Ten years later, in Kemp v Glasgow Corporation,167 the courts took a similar view. In a challenge as to whether payments for election expenses made by a burgh of Glasgow to local government candidates supporting certain policies of the burgh were legal, the House of Lords cited Osborne in support of its holding that the payments were contrary to public policy and that public monies could not be spent in this way with their potential to influence candidates. The issue of the role of the representative did not come before the court for another 60 years. The 1981 case of Bromley LBC v Greater London Council168 concerned the implementation of the Labour party’s manifesto promise that it would cut public transport fares by 25 per cent. Labour members formed a majority on the Greater London Council and wished to put their manifesto promise into effect. But the Court of Appeal was not convinced that the representatives were bound by this mandate, saying that manifesto promises were subject to the limitation of ‘what was practicable and fair, as determined by a court’. Then in 1988, in the case of R v Waltham Forest LBC,169 the Court of Appeal considered the weight that local councillors were bound to give to party policy and the views of their colleagues. Sir John Donaldson MR stated that: so long as councillors are free to remain members despite the withdrawal of the whip and so long as they remember that whatever degree of importance they may attach to group unity and uniformity with group policy, the ultimate decision is for them and them alone as individuals . . .170

The one exception to this line of cases is Secretary of State for Education and Science v Tameside Metropolitan Borough Council.171 This case also concerned a manifesto promise, this time a Conservative Party policy to reverse the abolition of grammar schools. The Secretary of State ordered the Conservative Council to cease implementing its policy. The order was struck down by the House of Lords, which held that the policy was not an unreasonable one, and in doing so made   Ibid, 111.   [1920] AC 836 (HL).   [1981] AC 768. 169   [1988] 2 WLR 257. 170   Ibid, 261. 171   [1977] AC 1014. 166 167 168



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some reference to the manifesto promises on which the council members were elected and therefore had a mandate to carry out. Parliament’s Privileges Committee also had to investigate questions of representative independence in the 1947 case of the member for Rugby, WJ Brown.172 On like facts to the Osborne case, Brown entered into a salaried agreement with the Civil Service Clerical Association (CSCA), which contained a clause guaranteeing him ‘complete freedom’ to engage in political activities but also provided that he should deal with CSCA questions which required parliamentary action. The agreement did not allow Brown to intimate that he was representing the political views of the CSCA. The CSCA wished to terminate the agreement, and the parties entered into discussions as to how this might be done without Brown suffering a financial loss. At this point a complaint was made to the Privileges Committee, alleging that the CSCA was improperly attempting to influence Brown in the conduct of his representative duties and that this constituted a breach of privilege. The Committee recommended that no action be taken. The motion introducing the report to the House of Commons contained these comments, demonstrating again that the Whig view of the representative as a trustee rather than a delegate, and a server of the territorial and national interest rather than a sectoral interest, still held sway: [I]t is inconsistent with the dignity of the House, with the duty of a Member to his constituents, and with the maintenance of the privilege of freedom of speech, for any Member of this House to enter into a contractual agreement with an outside body, controlling or limiting the Member’s complete independence and freedom of action in Parliament or stipulating that he shall act in any way as the representative of such outside body in regard to any matters to be transacted in Parliament; the duty of the Member being to his constituents and to the country as a whole, rather than any particular section thereof.173

The motion passed, albeit not unanimously, perhaps demonstrating some disquiet on the part of members who also received payments of some sort from outside bodies. In more recent years, scandals involving paid links between representatives and outside bodies have caused the overhaul of the parliamentary systems for dealing with members’ conflicts of interest and parliamentary conduct. Parliament said little on the role of an MP until 2010. That year, the Speaker’s Conference on Parliamentary Representation recommended that ‘a description of the main functions of a Member of Parliament should be drawn up, agreed between the parties and published’.174 At the same time, it noted that an MP’s two main responsibilities were to act as a legislator and as ‘an advocate for the constituency he or she represents’.175 Elaborating on this latter role, the Conference Report stated:   See O Hood Phillips, ‘Parliamentary Privilege: the case of Mr WJ Brown’ (1947) 10(4) MLR 420.   Ibid, 422. 174   Speaker’s Conference, above n 96, 39. 175   Ibid, 38. 172 173

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A good MP will make a positive difference to the community he or she represents. An MP can express the concerns of their community to Parliament and ensure people’s experiences are recorded and understood. He or she can press for changes which will increase the community’s wellbeing and prosperity.176

So far, the main strand running through legal views of representation, particularly in latter years, is that noted by Fairlie in the opening paragraphs of this section on the jurisprudence of representation: the choice between delegate and trustee theories, with a strong inclination towards trusteeship. However, while this continues to play a significant role in considerations of representation, a relatively new development has come to the fore in the law’s investigations into representation, as explored below.

D.  Human Rights Law With their coming to prominence in the Universal Declaration of Human Rights in 1948, rights have come to be the predominant form of normative discourse in legal circles.177 It makes sense, then, to look to human rights jurisprudence when looking for norms and ideas of representation in law. We have chosen the ECHR as our model, since this has the greatest salience for the UK in teasing out the thinking on representation and candidature. Article 3 of the First Protocol (P1-3) to the ECHR provides: The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

Although the right to stand as a candidate is not specifically mentioned, the European courts consider it to be inherent in the undertaking to hold elections, having evolved from an institutional duty to a right of participation. This necessarily includes rights of voting and standing.178 Many political theorists see representatives as a necessary condition for modern democracy. It seems that this is also true of the law. In the Greek case, the Commission said that this article ‘presupposes the existence of a representative legislature . . . as the basis of a democratic society’.179 However, to say that representatives are an essential feature of democracy does not say much. What else does the law say is the content of the right of candidature, and where are its boundaries?   Ibid.   See, eg, N Bobbio, The Age of Rights (trans A Cameron) (Polity Press, Cambridge, 1996). Of course, this does not mean that this is a universally welcomed development: T Campbell, KD Ewing and A Tomkins (eds), Sceptical essays on human rights (Oxford University Press, Oxford, 2001). 178   The Court in Mathieu-Mohin and Clerfayt v Belgium (1988) 10 EHRR 1, 15–16 summarised the history of P1-3 and concluded specifically, on the right to stand for election, ‘The Court approves this latter concept’ (para 51). Compare this with Art 25 of the ICCPR, which explicitly refers to candidature. 179   (1969) 12 Year Book 1, 179; United Communist Party of Turkey v Turkey (1998) 26 EHRR 121, 148–49. 176 177



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The Legal Background to the Candidature Right The Travaux Préparatoires on the First Protocol reveal that thinking about what representation means in law was not uppermost in the minds of those considering Article 3. Indeed, candidature was not mentioned at all. Attention on P1-3 centred on whether the wording of the article required States to adopt a form of proportional representation180 and whether States with non-elected legislative chambers would find themselves in breach of the Protocol181 (both were particular concerns of the UK). With these concerns assuaged, the wording of the article was approved in the form set out above.182 It then falls to the judiciary to colour in the blank spaces left by the drafters. Unfortunately, case law on the right to stand as a candidate is not extensive. This is probably because the right to be a candidate is not absolute,183 which makes a successful challenge a gamble. The Court has recognised in a number of cases that Convention signatories have considerable discretion as to the limitations they place on candidature, so long as, in the familiar formulation of permissible human rights restrictions:184 a) the right is not curtailed to such an extent so as to impair its very essence and deprive it of effectiveness; b) the limitation is imposed in pursuit of a legitimate aim; and c) the means employed are not disproportionate. The limitations are also to be examined in light of each legislating nation’s particular political history.185 Consequently, the Court has been prepared to accept a range of restrictions on those standing for their national legislatures, so long as they are not arbitrarily imposed. The key underlying principles of candidature law are the free expression of the electorate’s will and the need to avoid arbitrariness or a lack of proportionality.186 Thus in Sadak v Turkey, the ordered dissolution of the Turkish Democratic Party (because of its Kurdish links) by the Turkish Constitutional Court was held to have breached P1-3 because it fettered the electorate’s discretion in choosing a legislature.187 This extends somewhat the views expressed in the first case on P1-3 heard by the Court, where it was said that the objectives of an electoral system are to reflect faithfully the opinions of the people, 180  See Collected Edition of the Travaux Préparatoires of the ECHR Vol VIII (Martinus Nijhoff, Dordrecht, 1985) 14. This was affirmed in Mathieu-Mohin and Clerfayt, above n 178, 17; see also, specifically in relation to the UK’s First-Past-the-Post system, Liberal Party v United Kingdom (1981) 21 DR 211. 181   Travaux Préparatoires Vol VIII, above n 80, 50–52. 182   On P1-3 generally, see DJ Harris, M O’Boyle and C Warbrick, Law of the European Convention on Human Rights (Butterworths, London, 1995) ch 20; and C Orey and RCA White, European Convention on Human Rights, 3rd edn (Oxford University Press, Oxford, 2002) ch 17. 183   Mathieu-Mohin and Clerfayt, above n 178, 17. 184   Ibid. The Court has further said that the test of ‘pressing social need’ is not to be applied in P1-3 cases: Zdanoka v Latvia [2006] ECHR 231, para 115. 185   Zdanoka, above n 184, para 106. 186   Ibid, para 115. 187   Sadak v Turkey (2003) 36 EHRR 396, para 40.

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and to channel those thoughts so as to promote the emergence of a clear and coherent political will.188

Case Law on Representation More specifically, acceptable limitations on candidacy which emerge from the case law are as follows: a) That a representative must be a speaker of the national language. In Podkolzina v Latvia, the Latvian Government sought to justify the imposition of a Latvian language requirement on legislative candidates. The rationale for this was that an inability to do so would seriously hamper representatives’ ability to carry out their role, ie to receive communications from electors and to do the work entrusted to them.189 The Court endorsed this view, stating that ensuring the smooth running of the State’s systems was a legitimate aim for governments to pursue.190 Moreover, the Court was prepared to defer to a preference that candidates exhibit certain national characteristics, such as speaking the State’s official language.191 b) That a representative be a resident (howsoever defined) and a citizen of the State in which she stands for election. Residency was in issue in Melnychenko v Ukraine,192 where Mr Melnychenko was nominated as a candidate even though he was living in the United States and was unlikely to return to the Ukraine (having been granted political asylum in the US). The Court found that a residency requirement was appropriate restriction so that candidates were sufficiently familiar with the tasks of the national parliament for which they were putting themselves forward.193    Citizenship was the concern in Ganchev v Bulgaria,194 where the Commission upheld the Bulgarian Government’s requirement that candidates hold only Bulgarian citizenship. (Ganchev had been elected but then been disqualified, since he appeared at the time of his election to have US citizenship as well.) c) That a representative be an ethical and trustworthy person. This quality was mentioned in Melnychenko v Ukraine, where the Court said ‘it is essential that parliamentary candidates are shown to be persons of integrity and truthfulness’.195 Willingness to submit to public scrutiny was also important, since ‘by obliging them to put themselves forward publicly, in a full and frank manner, the electorate can assess the candidate’s personal qualifications and ability to represent its interests in parliament’.196   Mathieu-Mohin and Clerfayt, above n 178, 17.   Podkolzina v Latvia [2002] ECHR 405, para 27. 190   Ibid, para 34. 191   Ibid. 192   Melnychenko v Ukraine (2006) 42 EHRR 784 (Section II). 193   Ibid, 801. 194   Ganchev v Bulgaria (1996) App 28858/95 (unreported). 195   Melnychenko v Ukraine, above n 192, 801. 196   Ibid. 188 189



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d) That a representative be a serious participant in the electoral contest. Accordingly, the Court has not found troublesome the requirement to pay a deposit to stand, upholding this most recently in Sukhovetskyy v Ukraine.197 Mr Sukhovetskyy complained that his candidacy had not been registered because he did not pay the requisite deposit, it being too expensive for him. This was examined by the Court and found to be an acceptable restriction with the legitimate aims of enhancing the responsibility of candidates and avoiding an unreasonable outlay of public funds.198 e) Potential representatives must not have a conflict of interest. In M v United Kingdom,199 M complained that he had been prevented from taking his seat in the Northern Ireland Assembly on account of his also being a member of the Irish Senate. The Commission held, without comment, the prohibition on dual membership to be an acceptable one to impose; presumably because representatives should not have mixed loyalties at that level. f) Representatives must not allow their status to undermine the functioning of the constitutional system. In Lykourezos v Greece, the Court heard a complaint from a lawyer MP who had been deprived of his seat after the election on account of a constitutional amendment which made all professional activities incompatible with being a member of Parliament.200 The prohibition was found to breach P1-3 for being over-broad.201 However, the Court did not disapprove of the wider principle that a representative must be devoted to his duties as a representative above, or to the exclusion of, all other duties.    In another Greek case, Gitonas v Greece,202 the applicants had their election to the Parliament annulled because they had been in public office at some stage during the preceding three years. This was held not be a breach of P1-3; the Greek Government was legitimately entitled to prevent their election to ensure that candidates could not take advantage of their positions when standing, and to prevent the objectivity and neutrality of the system being undermined.203 This view was reiterated in Ahmed v United Kingdom.204 At the systemic level, the Court has been protective of the democratic under­ pinnings of P1-3. Thus candidates from parties which have as one of their goals or means the subverting of the democratic order may legitimately be banned, the Court noting in Zdanoka v Latvia that a State may take measures it deems appropriate to protect itself and guarantee the stability and effectiveness of democracy.205

  Sukhovetskyy v Ukraine [2006] ECHR 265.   Ibid, para 61. 199   M v United Kingdom (1984) App 10316/83. 200   Lykourezos v Greece (2008) 46 EHRR 7, para 3. 201   Ibid, para 57. 202   Gitonas v Greece (1998) 26 EHRR 691. 203   Ibid, 706–07. 204   Ahmed v United Kingdom (2000) 29 EHRR 1. 205   Zdanoka v Latvia, above n 184, para 100. 197 198

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Some more general comments have also been made about the functions of representatives. In McGuinness v United Kingdom,206 the Court made some comments on the role of freedom of speech for a representative. These statements are useful because they give some indication of what the Court sees as the purpose of a representative. In McGuinness, the Court noted that freedom of speech is a necessary incident of the job of representative, enabling her to express her own views, those of her party and those of her constituents.207 Freedom of speech was also considered essential in Sadak v Turkey, the Court indicating that without that freedom, the work of a representative in ‘represent[ing] the electorate, draw[ing] attention to their preoccupations and defend[ing] their interests’208 would be compromised. What thinking about representation can we extract from these cases? The first thing to note is that there does not appear to be one clear theory of representation articulated by the Court. Rather, we are presented with a series of comments which do not fit into neat categories. There are some hints, such as those in Sadak, that the Court sees representation as a substitute for direct democracy (the ‘second-best argument’) – a representative literally ‘re-presents’ the people in the forum of the legislature. However, since the Court has on several occasions affirmed that proportional representation is not required by P1-3, it seems that this vision stops short of seeing representatives as a mirror of the polity. Representatives need not, with few exceptions, display the characteristics of their electors. What appears to be the strongest thread running through these judgments is the notion that representatives are aligned with the advancement of interests, given the comments in the freedom of expression cases. Interestingly, these appear to exist (outside the unelaborated reference in McGuinness to party) mainly at an individualistic level. With interest advancement as the main function of representation, a representative seems to be perceived as a conduit for information, transmitting opinions and thoughts from the people to the legislature and vice versa. However, this does not appear to manifest itself as delegate theory since nowhere in the case law does the Court suggest that a representative is bound by her constituents. Given this need to promote their electors’ interests, it follows that the Court endorses the idea that representatives must have ties to the community. This is clearly evident from the Court’s upholding of citizenship, residency and language requirements. It also comes through in the insistence on freedom from conflicting loyalties. However, there does appear to be somewhat of a shortfall in the Court’s vision of community identification. While endorsing the need for a minimum level of community connection, the Court was not prepared to go so far as to   McGuinness v United Kingdom (1999) App 39511/98 (Section III) (unreported).   Ibid.   Sadak v Turkey, above n 187, 404, purportedly citing Castells v Spain (1992) 14 EHRR 445, although that passage does not appear in Castells. A similar passage, viz, ‘his role is to act as a spokesman for the opinions and concerns of citizens’, appears at 461 of Castells. (The Sadak passage was also cited in the McGuinness case.) 206 207 208

Conclusion 39 endorse the theory of identity representation. In Podkolzina, the argument that Ms Podkolzina represented a significant community minority of Latvian Russians (and therefore that competence in Russian was a better criterion for assessing how she would carry out her role) did not persuade the Court. This would appear to be an argument that the law is reluctant to investigate at this stage. Lastly, the jurisprudence, like the medieval writs, displays an interest in the personality of the representative: trustworthy, morally upright, an upholder of democratic values, a serious contender in the electoral contest and devoted to her role as a representative once elected.

IV. Conclusion From our examination of some of the ways representation has been described and constructed through law, it appears that we arrive in approximately the same place as those who approach representation from a political theory perspective. However, unlike political science, there is not a large stand-alone literature on legal thinking about representation. The law’s views on representation are still in the process of creation. In keeping with this inchoate formulation of representation, in law, representation is not tidily circumscribed; while not a ‘muddle’, legal thinking on representation presents as several strands of thought. Nor has it been constructed from a first principles basis. Legal thinkers seek to describe and prescribe at the same time, which results in the law mixing together ideas about what representatives should do (should they represent local interests or those of the whole nation? are they conduits for information or actors); how they should do it (are they trustees of those interests or are they bound by them?); and who they should be (trustworthy and ethical, with elephantine memories). Possibly even more so than in political theory, the law envisages the important relationship of a representative as primarily being with her constituents – parties are almost completely absent from the law’s discussion. However, as with political theory, law displays no settled answer as to how closely bound a representative should be to those she represents. As we can see, law asks the three questions of representation that occupy polit­ ical theorists as they seek to understand representation: Who is represented? What is represented? How is it represented?209 Where law and politics diverge is that law asks a fourth question: What is the representative like? What is striking from this overview is that the law seems to place considerably more emphasis on the personal qualities of a representative than do political theorists. In fact, discussion of the personal characteristics of representatives from a normative perspective appears to be overlooked by political scientists. This is an interesting difference, for it seems to be saying that the law is not so much   Weale, above n 30, 457.

209

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concerned with the structural qualities of a representative as it is with what a representative is like as a person. This occurs repeatedly when we look at the different ways the law has addressed representation. The election writs seek representatives who are sufficient and discreet; jurists write that representatives should be decent and incorruptible, while also adhering to a Whig theory of representation that saw representatives as those who could use their superior skills to bring Parliament to agreement; judges write of representatives who should be trustworthy, conflictfree and loyal to their work. This is a much closer involvement with the practicalities of representation than is seen in the political science literature. As well as introducing the additional issue of how the law sets the boundaries for or determines the character of the person selected to represent, this difference of emphasis with representatives has implications for our understanding of how the law approaches the other questions of representation. For example, how much discretion should be given to a selection committee to take into account a prospective candidate’s past, and to what extent is this challengeable? This additional legal concern could be because, as noted earlier, the law tends to confront issues of representation in the practical sphere – law provides the mechanism for securing representatives, decides disputes about their election or dismisses them. However, this does not mean that law should not be engaging with the underlying theory, since theory has a role to play in creating a more coherent approach to the questions law must answer. Also noteworthy is the repeated concern of the law in upholding the integrity of the political system by controlling aspects of who may be representatives and their qualities. The medieval writs disqualified from standing those with actual or potential conflicts of interest with the system; hundreds of years later, the European Court of Human Rights is concerned to ensure that representatives may not be compromised in their work, or display loyalties to another democratic system. This concern for the relationship between representatives and the democracy they serve appears to be a much stronger phenomenon in law than in political theory.

3 Candidate Eligibility Laws I.  Who May Be A Candidate? Before becoming a representative, one must first be eligible for selection as a candidate for Parliament. The law of candidate eligibility is framed rather curiously – what matters primarily is not whether one is qualified, for these requirements are only a small part of the picture and fairly easily met. What is more significant is whether one is not disqualified. If a potential candidate is both qualified and not disqualified, the eligibility criteria are satisfied. This chapter examines the different candidate eligibility qualifications required by law and puts forward some suggestions for reform of eligibility laws, particularly in the areas of public servant candidature and nationality requirements. It also investigates some questions in the law surrounding the process of nomination. Eligibility is perhaps the most important point in the journey towards Parliament, for if one cannot be put forward for the election contest then the journey is over almost before it has begun.

A.  The Legal Focus of Candidacy There is some overlap between the legal and political perspectives on representation. Both law and political theorists are concerned with how a representative may behave once in office: As a delegate or a trustee? To whom might he be accountable: his present or future constituents, or his party? And whom might he be said to represent: the local people; a particular social class; a segment of society defined by sex, or race or sexuality? Legal rules are drawn up, constitutional conventions evolved and jurisprudence put forth with these issues in mind. But there is also a significant point of divergence. An additional interest as an object of legal regulation appears to be the qualities and characteristics of the representative. This is a feature which does not appear on the political science landscape. A preoccupation peculiar to law is whether the representative is a fit and proper person to be trusted with this office. Will her presence enable the representative body as a whole to discharge its duties? Is this representative loyal to the people she seeks to represent? Has she conflicts of interest which will compromise her ability to act, or undermine her position or other branches of government? What sort of person is the representative?

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A couple of examples will illustrate the law’s particular concerns with candidate eligibility.1 Although both deal with the immediate issue of the representative’s identity – who he was – in doing so, they neatly highlight some systemic concerns in the form of separation of powers, and the more personal concerns about a member’s background and activities. In the first, Tony Benn was already a member of the House of Commons when he succeeded to the peerage on the death of his father in 1960. As Viscount Stansgate and now a member of the House of Lords, he was ineligible to retain his membership of the Commons. Undeterred, he stood for re-election to the House of Commons and won. But his election was challenged on the grounds that he was disqualified from standing in the first place. The challenge was successful,2 and it took a change in the law before Viscount Stansgate could renounce his peerage and stand again (this time successfully) for the House of Commons as Tony Benn, commoner. In another example, in 1981 the voters in the Northern Ireland constituency of Fermanagh & South Tyrone elected Bobby Sands as their representative to the House of Commons. At the time Bobby Sands was serving a prison sentence for firearms offences. But Sands was no ordinary prisoner. He was also a member of the IRA, and his election caused some consternation. It was suggested that the House might even expel him as an unworthy member.3 Such action proved unnecessary since Sands never attended the House or took the oath. He died as a result of a hunger strike after serving 25 days as a representative. The Representation of the People Act 1981 was quickly enacted to prevent prisoners from standing. We turn now to ask in more detail how these concerns are reflected in the law’s regulation of candidacy. Having spent some time in the previous chapter exploring the various meanings and expectations which can be imposed upon the figure of the representative, it may come as somewhat of a surprise that, at first glance, an issue of such apparent complexity is dealt with quite simply in the relevant electoral legislation. The Representation of the People Act 1983 puts forth a definition of a ‘candidate’. Section 118A(2) states: A person becomes a candidate at a parliamentary election— (a) on the date of—

(i) the dissolution of Parliament, or (ii) in case of a by-election, the occurrence of the vacancy,in consequence of which the writ for the election is issued if on or before that date he is declared by himself or by others to be a candidate at the election; and

(b) otherwise, on the day on which he is so declared by himself or others or on which he is nominated as a candidate at the election (whichever is the earlier). 1   Disqualification cases are not common, though they do still occur. See Harrison v Gupta (unreported, London Borough of Brent, 4 May 2006) (disqualification as a local authority employee). 2   In re Bristol South East Election Petition [1964] 2 QB 257. 3   ‘1981: Hunger striker elected MP’, BBC On This Day (10 April).



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Thus it appears that one becomes a candidate when one is declared to be one or is nominated as such.4 But this is a deceptively simple statement of law. Behind this section lies a complex set of criteria which an aspiring candidate must satisfy in order to be able to assume the label of ‘candidate’. It should be noted at this point that while this section refers to eligibility criteria, there is little in the way of preelection scrutiny of these criteria – voters must generally rely on assurances from candidates that they are eligible to stand.

B.  The Eligibility Provisions Eligibility for the role of representative may be summarised in this way: having satisfied the minimal qualifications set out in the law, one is qualified to stand as a candidate for election unless subject to a particular named disqualification. As noted, there are very few criteria one must satisfy in order to be prima facie eligible as a candidate for the House of Commons. One must be the right age, that is, 18 years or older. Some degree of maturity is required, and 18 is taken to be the age at which this is acquired; it also corresponds to the age at which the franchise is acquired.5 Secondly, there is also a nationality requirement to satisfy. Unlike most other States, candidates in the UK need not be citizens of the nation they hope to represent. In Britain, aspiring representatives must have British, Irish or Commonwealth citizenship. In the case of Commonwealth citizens, they must be ‘qualifying Commonwealth citizens’, which in this context means they must have the right of abode or indefinite leave to remain in the UK.6 This, presumably, is a measure intended to ensure that any representative holding Commonwealth citizenship only would nonetheless be able to discharge the responsibilities involved in attending Parliament. The disqualifying provisions are much more substantial. The House of Commons Disqualification Act 1975 contains the most complete statement of those barred from standing for the House. However, it is far from a code on the subject, dealing only with public office disqualification. Other disqualifying provisions are scattered throughout a variety of statutes and the common law. Those lacking sufficient mental capacity to discharge their duties as representatives are disqualified either by the common law7 or, if already sitting, under the 4   The effect of this definition is largely to fix the time at which one becomes a candidate, which has implications for the calculation of election expenses. This provision is very similar to the definition of ‘candidate’ in s 2(1) of the Canada Elections Act 2000. Prior to this reform, the point at which one became a candidate was a question of fact rather than law and involved a complicated regime known as ‘triggering’. The Political Parties and Elections Act 2009 amended s 118A by providing for a fixed period during which candidate expenditure is incurred. None of these changes, however, sheds much light on what is meant by ‘candidacy’. 5   Representation of the People Act 1983, s 1(1)(d). 6   Electoral Administration Act 2006, s 18. 7   W McKay (ed), Erskine May’s Parliamentary Practice, 23rd edn (LexisNexis, London, 2004) 50. The common law disqualification for voting was abolished by s 73 of the Electoral Administration Act 2006.

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Mental Health Act 1983.8 Although physical disability is said to subsist as a disqualification at common law,9 as experience since the Second World War has shown, it is not a barrier to fulfilling the duties of a representative. In practice it is disregarded. As a further indication of their acceptance and integration into the parliamentary system, disabled MPs can claim additional parliamentary allowances. As a disqualifying provision, physical disability must be said to have fallen into desuetude.10 A further limitation on candidacy due to sheer physical impossibility is that candidates may stand for only one constituency. The Electoral Administration Act 2006 abolished the longstanding common law rule that a candidate may stand in more than one constituency. When this was permitted, even then candidates were not permitted to represent more than one constituency at a time. They could assume a seat in one constituency while awaiting the outcome of an election petition in another, but should that succeed, a choice had to be made and one seat vacated.11 Under the Representation of the People Act 1981, any person under sentence of indefinite imprisonment or detention or for more than one year in Britain or Ireland is ineligible to stand as a candidate.12 This is probably the most stringently enforced disqualification, for a prisoner in this category cannot even be nominated as a candidate.13 It would seem that there are two main reasons for this: one is practical, taking into the account the near impossibility of such a person being able to serve his or her constituents properly and participate in the other necessary representative duties, such as debates in the House, serving on select committees and the like; the other is a moral judgement questioning the suitability of having convicted law-breakers as members of the legislature. Those convicted of treason in England, Wales and Northern Ireland (but not Scotland) are disqualified under the Forfeiture Act 1870. Other specific offences which incur disqualification from candidacy if a report is made by an election court that an individual was personally guilty of such an offence are corrupt or   Mental Health Act 1983, s 141.   Eg, J Glanville, Reports of Certain Cases Determined and Adjudged by the Commons in Parliament (S Baker & G Leigh, London, 1775) xxxv–xxxvi, records that in 1580 the Commons considered and approved the writs of those returned ‘in place of others sick and diseased’. See also C Morton (ed), Whitelocke’s Notes Uppon the King’s Writt For Choosing Members of Parliament (London, 1766) vol 1, 461: ‘By the law of England, a man deafe and dumbe, or blinde . . . [is] not capable to be members of parlement.’ 10   Nonetheless, it is worth noting that Bournemouth Borough Council included in its information pack for the May 2007 local elections a statement that the ‘deaf and dumb’ as well as ‘lunatics and idiots’ were disqualified for standing. The Council later apologised and amended the information pack: ‘Apologies for “idiots” election ban’, BBC News Online (4 April 2007). 11   Electoral Administration Act 2006, s 22. It is now a corrupt electoral practice to make a false declaration as to single-constituency candidacy. In the years before the First World War, multiple constituency candidacies, while not common, did occur: see R Blackburn, The Electoral System in Britain (Macmillan, London, 1995) 163–64. This is a clear rejection of the Burkean idea that a representative could represent more than one place at the same time. 12   Representation of the People Act 1981, s 1. 13   Ibid, s 2. 8 9



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illegal practices during an election. Disqualification lasts for five years in the case of the former offence,14 and three years in the case of the latter.15 A person in England and Wales subject to a bankruptcy restrictions order under the Insolvency Act 1986 is also disqualified from sitting in the House of Commons.16 Potential Scots candidates are disqualified if sequestration of estate is awarded against them, or in the case of Northern Ireland candidates, if they are adjudged bankrupt.17 Peers who sit in the House of Lords may not also stand for election to the House of Commons, due to the clashing nature of their roles in the two chambers. The rationale appears to be that members of the House of Lords have assumed a role different from that of a representative of the people, and therefore cannot properly take a place in the House of Commons. The House of Commons Disqualification Act 1975 covers most of the disqualifications due to the holding of public office. Disqualified under this Act are: a) judges of the High Court and Court of Appeal of England and Wales, and judges of the Court of Session; b) members of the regular armed forces; c) full-time police officers in a ‘police authority’18; d) members of legislatures outside the Commonwealth and Ireland; e) civil servants, whether full- or part-time; and f) holders of any of the offices listed in Part II or Part III of Schedule I to the Act. Schedule I contains numerous disqualifications and may be amended at any time by parliamentary resolution and Order in Council. The disqualifying offices range from the Auditor of the Civil List to membership of the Welsh Water Authority.19 There are also certain local disqualifications, relating to positions held in a particular constituency. For example, if a returning officer acts in that capacity by virtue of being a sheriff, he may not stand for any constituency which is in or in part within the area under his jurisdiction as a sheriff. These localised restrictions do not affect the general right to stand. Acting returning officers in England and Wales and their counterparts in electoral administration in Scotland and Northern Ireland are also disqualified. The Act also limits the number of holders of minister­ ial office in the House of Commons to 95.   Representation of the People Act 1983, s 160(5)(a).   Ibid, s 160(5)(b). 16   Insolvency Act 1986, s 426A. This prohibition dates back to Stuart times. In 1604, James I issued a proclamation of summons directing electors on the characteristics of suitable representatives: bankrupts (along with outlaws and those ‘inclined to be factious’) were declared unsuitable. See MF Keeler, ‘The Committee for Privileges of the House of Commons 1604–10 and 1614’ (1994) 13(2) Parliamentary History 147, 148. 17   Insolvency Act 1986, s 427(1). 18   ‘Police authority’ has the definition given to it in the Police Act 1967 or the Police (Scotland) Act 1967. This excludes special constables, and those working for railways and Transport for London. 19   Now renamed Welsh Water. 14 15

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C.  Recent Developments in Eligibility Legislation In 1995 Robert Blackburn addressed three ‘special problems’ of candidature. These were: a) the question of age eligibility; b) the position of civil servants; and c) the jumble of rules relating to the disqualification of the clergy of certain faith traditions.20 In the last decade, significant changes have been made to clergy disqualification rules, and another two categories of disqualification also removed. In addition, the Electoral Administration Act 2006 made further changes to the nationality and age qualifying provisions. It will become apparent, however, that the changes have been rather ad hoc rather than part of a programme of principled reform. Nevertheless, these alterations to eligibility law have had the effect of clearing even more legal obstacles from the path of those wishing to enter Parliament. Religion and class no longer prevent an individual from putting himself or herself forward for election to the Commons, although the nationality provisions have been tightened slightly. The first change came as a side-effect of the greater reforms to the House of Lords. When the House of Lords Act 1999 removed the right of most peers to sit in the upper chamber of Parliament, it retained 90 places in the Lords for hereditary peers and one each for the Earl Marshal and the Lord Great Chamberlain. Those Lords Temporal were still prevented from Commons membership, but all other hereditary peers were now eligible.21 Life peers continue to be disqualified. The following year, the Disqualifications Act 2000 restored to members of the Irish legislature the right to stand for the House of Commons and the Northern Ireland Assembly. This removed the disqualification unsuccessfully challenged before the European Court of Human Rights in M v United Kingdom.22 It appears to be correcting to some degree the imbalance in electoral rights that previously existed, where some Irish citizens but not all could stand for election to the Commons; but it is itself, as noted earlier, out of line with the idea that members should be able to devote themselves entirely to the Commons, both physically and from a point of view of loyalty. In 2001, Parliament continued its reform of candidacy statutes by removing the disqualification of various clergy. This was an area of law previously described as ‘incoherent, illogical and virtually impossible for anyone except a legal expert to uncover’.23 In essence, disqualification applied only to Christian clergy, and even then, only to those of certain denominations. Some former priests were also   Blackburn, above n 11, 167.   House of Lords Act 1999, s 1. 22   (1984) App 10316/83. 23   Blackburn, above n 11, 185. 20 21



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covered by this disqualification.24 The House of Commons (Removal of Clergy Disqualification) Act 2001 repealed several pieces of legislation which had prevented priests in the Church of England and Ireland, Church of Scotland ministers, and Roman Catholic and other ‘episcopally ordained’25 priests from taking membership of the House of Commons.26 Those clergy who were members of the House of Lords by virtue of being Lords Spiritual continued to be prohibited from membership of the Commons.27 All other current and former clergy from any faith may now otherwise stand. Whether they do so will depend on the view taken by their particular faith on clerical participation in politics.28 The age threshold of 21 years, which had been established by statute since 1695 and even earlier by the common law,29 was lowered by section 17 of the Electoral Administration Act 2006 to 18 years (this age must be attained by or on the nomination date). This rectifies a deliberate omission incurred in 1969 when the age of majority was lowered from 21 to 18, without consequently amending the right to stand for Parliament.

II.  What is the Basis of Candidate Eligibility? Michael Maley has identified five general notions underlying electoral eligibility criteria. These are: a) a basic set of criteria that indicate general membership of the polity; b) judgements about the qualities a representative needs to discharge the responsibilities of the position effectively; 24  Former Church of England priests could avail themselves of the provisions of the Clergy Disabilities Act 1870 if they wished to stand, but this measure was not available to those from other denominations. 25   The meaning of this phrase was defined in In Re MacManaway and In Re The House of Commons (Clergy Disqualification) Act 1801 [1951] AC 161 (PC). Note that the Privy Council’s decision has been questioned: see Blackburn, above n 11, 189–90. 26   These were the House of Commons (Clergy Disqualification) Act 1801, the Roman Catholic Relief Act 1829, s 9, and aspects of the Clergy Disabilities Act 1870 and the Welsh Church Act 1914. 27   House of Commons (Removal of Clergy Disqualification) Act 2001, s 1(2). 28   Eg, it is against Roman Catholic ecclesiastical law for priests to participate in politics: Codex Iuris Canonici (1983) canon 285.3: ‘Clerics are forbidden to assume public offices which entail a participation in the exercise of civil power.’ This restriction was first mentioned in the Pio-Benedictine issue of the Code in 1917 (canon 139), but was more strongly enforced in 1983 after Fr Robert Drinian SJ became the Democratic representative for Massachusetts in 1971. Apart from his impact on canon law, he is best known for introducing the first resolution for the impeachment of Nixon. In November 2006, Fr Raymond Gravel of Canada tested the strengthened rule by successfully standing for the Bloc Quebecois in the Montreal constituency of Repentigny. He is said to have been given special permission from the Vatican to stand, although whether this is in fact the case, and whether canon law permits it, has been fiercely debated by canon lawyers. 29   Blackburn, above n 11, 167; P Norton, ‘The Qualifying Age for Candidature in British Elections’ [1980] PL 66. See also the case of John Milles: in an election in Banbury on 19 July 1625, John Button had been elected, and John Milles and John Moore were tied with 10 votes each. The Mayor gave his casting vote to Milles as Milles was only 18. The matter was referred to the House of Commons which decided to return only Button: Records of Returns to Parliaments of England (House of Commons, London, 1878) 465.

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c) requirements that seek to convey a certain image regarding the representative body, such as a certain level of education; d) the exclusion of those whose politics are incompatible with international or domestic social norms; and e) disqualifications which represent a moral judgement about an aspiring representative’s character or conduct.30

A.  Diversity, Choice and Rights The general consensus amongst those concerned with these candidate eligibility provisions is that the electorate must be given the widest possible choice of candidates. The people must ‘be as free as possible to choose whomsoever they wish to represent them’.31 It is not therefore appropriate for the legislature to do more than prescribe absolute minima in terms of qualification. It has also been said that minimum qualifications encourage ‘all available talent’32 to embrace political life. They are, in effect, a form of diversity measure for candidates, sending the symbolic message that almost anyone can be a candidate. However, the strength of this proposition must be considered rather strained, given the additional efforts which have been deemed necessary to improve the range of candidates in elections. Electoral law jurisprudence sometimes makes an explicit connection between the right to vote and the right to stand as a candidate for the legislature. Each is tied to the other as an expression of an umbrella electoral right.33 This can be seen in the European Court of Human Right’s elucidation of the content of the duty to hold free elections in P1-3 of the ECHR as encompassing both voting and candidature rights.34 The endorsement of a wide right to candidacy (in the form of minimal restrictions) may also be seen to be a way of achieving a more democratic and largely unfettered franchise: allowing voters the widest choice amongst can­ didates on the ballot represents the fullest extent of the right to vote.35 Some of the recent changes in candidature law can be seen in this light, most notably the reduction in candidate age eligibility to match the voting age. 30   M Maley, ‘Candidates’ in R Rose (ed), International Encyclopedia of Elections (CQ Press, Washington DC, 2000) 31. 31   Blackburn, above n 11, 157. See also Maley, above n 30, 32. This principle appears to have been articulated first in the Report of the Select Committee on Offices or Places of Profit under the Crown (1941) xx: ‘[I]t is for constituents to decide whether or not a person is suitable to represent them in the House of Commons in view of his other occupations or of any office he holds, and that Parliament should not restrict their choice unreasonably.’ The Committee itself appears to have adopted the views of Viscount Simon, ibid at 99 and 104. 32   A Barker, ‘Disqualification from the House – the ‘Reverse’ System’ (1958) 12(3) Parliamentary Affairs 469, 470. 33   Ibid, 469. For an extended discussion of this point, see NA Gordon, ‘The Constitutional Right to Candidacy’ (1976) 91(3) Political Science Quarterly 471, describing candidacy and voting as ‘correlative rights’. 34   Mathieu-Mohin and Clerfayt v Belgium (1988) 10 EHRR 1, 15–16. 35   Gordon, above n 33, 478, noting that ‘voters’ rights are abridged by the impairment of a candidate’s ability to gain access to the ballot.’



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Curiously, only some of the recent amendments to candidate eligibility law have cited human rights compliance as a catalyst, even though they have been characterised as general measures to make the electoral system more open and democratic, which is itself an underlying concern of P1-3. For example, the Electoral Administration Act changes were part of a package of electoral reforms aimed at improving popular access to and engagement with the electoral system; the changes to membership of the House of Lords were part of general constitutional reforms; and the removal of clergy disqualification provisions was said to be a general tidying-up measure that had been discussed over half a century ago.36 All of these changes may be said to enhance the democratic quotient of elections. These justifications notwithstanding, it is clear that some of these particular disqualifications were vulnerable to challenge under the Human Rights Act 1998 or the Convention. Even bearing in mind the generally light touch of the European Court of Human Rights when it comes to assessing a nation’s candidature rules, to continue to restrict membership of the legislature to those aged over 21, when the general age of majority (including the right to vote) was 18, may well have seemed an unjustifiable anomaly. Similarly, it would likely be a conflict with one’s freedom of religion to distinguish first between Christians and non-Christians, and then amongst Christians as to their electoral rights. (This specific concern with clergy disqualification was mentioned as a factor in enacting the change.37 In addition, it was thought that Article 11 ECHR (freedom of association) might also be implicated.38) With this in mind, an additional factor should be added to the assessment of domestic candidature laws, ie whether they represent the least possible infringement on human rights. Not only would this enrich our analysis of candidature laws, it would act as a pre-emptive check against challenges under P1-3. The current case law, which is discussed in chapter two, serves as a useful guide as to what is acceptable as regards eligibility requirements both in terms of specific restrictions and more general principles. While it would certainly seem that the present range of eligibility standards fit comfortably within the limits articulated by the European Court of Human Rights, the possibility of future infringing qualifications should not be discounted.

36   It should be noted, though, that attempts had been made to reform the laws on clergy eligibility during the Political Parties, Elections and Referendums Act 2000, via a series of amendments proposed by Lord Plant of Highfield. Lord Plant also presented a Private Member’s Bill on the subject, which was then superseded by the government initiative: see Lord Plant, Hansard HL, 27 March 2001, col 214. 37   O Gay, ‘The House of Commons (Removal of Clergy Disqualification) Bill’ (House of Commons Library Research Paper, London, 2001) 15. 38   However, a perusal of Hansard makes it clear that the main impetus was the candidature of David Cairns, a former Roman Catholic priest, in the upcoming election. The House of Commons (Removal of Clergy Disqualification) Act 2001 was enacted before the election, allowing Cairns to stand.

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B.  Competency, Conflicts and Integrity Of Maley’s remaining criteria, not all of these are readily applicable to the United Kingdom. For instance, there is no requirement that candidates must disavow certain forms of government such as fascism or communism. Candidates of all political persuasions, from the Communist Party of Great Britain39 to the British National Party,40 may and do participate in British elections. This may reflect a judgement that such views are better contained within the legislature than left to flourish underground.41 Nor are candidates required to have a particular level of education or come from a particular profession. The original five categories can therefore be reformulated into three: a) competency; b) conflict of interests; and c) integrity.

Competency The competency concern is most evident in the qualifications criteria. One must be an adult and physically present. Remote representation is not permitted. A representative must also have sufficient mental capacity to do the job. Beyond that, the ability to act as a representative is assumed.

Conflicts Representatives are increasingly expected to devote all of their attention to their representative duties.42 Members of Parliament who do undertake paid employment outside Parliament are required to record this, and other calls on their loyalty, on the House of Commons Register of Members’ Interests, which is updated after each Parliament.43 This reasoning, that a representative position should be an 39   The first MP elected under the banner of the Communist Party was Walton Newbold, elected in 1922, representing the constituency of Motherwell. The first Communist MP is generally agreed to be Cecil L’Estrange Malone, who was elected as a Coalition Liberal MP in 1918 but had a sudden conversion to Communism and joined the British Socialist Party (BSP) in 1919. The BSP merged with the Communist Party of Great Britain in 1920, at which point L’Estrange Malone was still an MP. 40   The British National Party (BNP) has not won any Westminster seats, but it did secure two seats to the European Parliament in the June 2009 elections. 41   Maley, above n 30, 32. 42   In 1971, the Top Salaries Review Body reported that 70% of MPs had outside occupations but did not devote much time to them. Being an MP was seen as the principal occupation or activity in terms of time if not in income. According to an updated survey by the Study of Parliament Group, the percentage of MPs with outside occupations had fallen slightly to 69% by 1982, but by 1997 there had been a significant shift in perception, with 88.8% of MPs agreeing that representation should be a full-time job: see M Rush, The Role of the Member of Parliament since 1868 (Oxford University Press, Oxford, 2001) 112–18. 43   Note that this regime is to be replaced by a new system introduced by the Parliamentary Standards Act 2009, where the Independent Parliamentary Standards Authority has been given the responsibility for drawing up a code of conduct relating to MPs’ financial interests.



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exclusive one, also underpins the exclusion of members of most other legislative bodies, such as the House of Lords or other non-Commonwealth national legislatures, from standing. The avoidance of conflicts of interest features strongly in the general prohibition against representatives occupying other branches of government. The various disqualification laws show that there is a very strong separation of powers rationale, keeping members of the judiciary and the extra-parliamentary executive, such as the police, the armed forces and civil servants, from parliamentary candidature. Membership of more than one branch of government (save for the parliamentary executive)44 is incompatible with each other and compromises loyalties.45 In the case of judges, their independence from political influence must be maintained. One curious exception to the conflicts criterion is that of nationality.46 This has been brought into even sharper relief by the changes to multi-constituency candidacies, creating a situation where candidates may not evince divided local loyalties by standing for more than one constituency, but they may do so at the national level. Indeed, in the case of Ireland or the Commonwealth, they may even be a member of more than one legislature.

Personal and Systemic Integrity Integrity appears to be a major, if largely unarticulated, concern of eligibility laws. First, a candidate is expected to display high standards of ethical behaviour. The exclusion of bankrupts is one such example, bankruptcy traditionally having been seen as a personal failing and source of shame. Secondly, the importance of the role to which a candidate aspires must be met with a commensurate respect for the constitutional and electoral system. Thus candidates who have attempted to subvert the State (in the form of treasonous activities), or who have transgressed community norms (in the form of serving a sentence of a year or more for offences committed) or done particular damage to the electoral system itself (by committing corrupt or illegal electoral practices) are not the sort of people who should either be allowed to participate in one of the State’s organs of government or engage in the electoral process.

44   This is an accepted exception due to the fused or mixed version of separation of powers practised in the Westminster system. 45   This is illustrated by the Long Title of the New Zealand Disqualification Acts of 1876 and 1870, which disqualified members of the Legislative Council (the appointed second chamber) from sitting and voting in the House of Representatives and vice versa: ‘An Act for better securing the Freedom and Independence of Parliament’. 46   H Lardy, ‘Democracy by Default: The Representation of the People Act 2000’ (2001) 64 MLR 63, 71–73, commenting on identical provisions with respect to Commonwealth citizens and voting, considers this to be an integrity issue as well: ‘[T]he [disqualification] of Commonwealth citizens who have not complied with immigration requirements represents an expression of both the membership and the virtue criteria: only Commonwealth citizens who have complied with the relevant entry rules are deemed to possess the virtue demanded of those who seek to take advantage of the relaxed membership rules which grant some non-UK citizens access to [candidature].’

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III.  The History of Eligibility Laws Historically, determining who should be admitted to its ranks has been the prerogative of Parliament and was a matter of privilege. The privilege of regulating its own composition was generally exercised after the electoral contest, either as part of deciding the outcome of a controverted election, or in assessing whether a member was entitled to retain his or her seat.

A.  The pre-1700s Era The writs of election in use from medieval times until the reform of 1872 under the Ballot Act reflected a concern that candidates be morally upright and suitable for the position, commonly using the formula of ‘sufficient and discreet’ to refer to those who should be sent to Parliament. Until their replacement by the neutral writs calling simply for ‘a member’ to be returned, these general statements about candidates’ characteristics were paralleled and supplemented by other legal developments in candidate suitability initiated by Parliament. They appear to have had two distinct but related purposes, and accordingly took two forms. The first, especially prominent during the first half of the 1600s, was driven by the assertion by Parliament of its privilege to make its own decisions about its membership. In deciding the appropriate composition of the Commons, certain occupations in particular were deemed to be incompatible with representative duties, especially if they led to an absence from the House. The fundamental concern was one of efficacy, the Commons asking ‘Does the presence of such a person as a Member conduce to the efficiency of the House?’47 At this point, the issue of office per se was not the focus of attention. In some cases, the House’s decisions overrode or ignored earlier statutory restrictions on membership suitability.48 During this period, the House heard cases dealing with the membership of judges, the attorney-general, ambassadors, colonial governors and sheriffs. The second purpose was the need for the Parliament to establish itself as a body constitutionally separate from the Crown. Between 1660 and the mid-eighteenth century, the focus shifted from the relation of Members of the Commons as amongst themselves to the relationship between the Commons as a body and the Crown, that is, from the specific Member (which had led to some inconsistencies)49 to the development of general principles relating to the legislature as a corpus. During this time, the Commons’ self-perception changed from a consultative organ subordinate to the Crown to a body whose role was to check and criticise the Crown. The growing importance and strengthening of separation of powers   Sir G Campion, ‘Memorandum’ in Offices or Places of Profit under the Crown, above n 31, 139.   Eg, the residency requirement set out in the ordinance of 1413 was routinely breached: ibid. 49   Campion, above n 47, 140. 47 48



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principles, in term of separation of both personnel and the institutions of government, required that its members collectively be free from Crown influence.50 Since this was considered to be a change in the law rather than a declaration of existing law, statute rather than parliamentary resolution was needed to implement these changes. Statutes were also passed confirming the earlier decisions of the House.

B.  1700 and After The next hundred years saw a period of activity in candidate eligibility laws which was not repeated until the mid-twentieth century. In 1695 Parliament passed the Parliamentary Elections Act, setting the appropriate age for candidacy at 21. This itself was a codification of earlier judicial decisions on under-age members. Then the Act of Settlement 1701 prohibited ‘aliens’ from sitting.51 This is said to be a restatement of the common law position,52 but may also have been an attempt to regulate the loyalties of Parliament by ensuring that its members did not have foreign allegiances. Seen that way, it may be viewed as continuing the situation established by the Act of Appeals 1533.53 This statute removed the legal jurisdiction of the Pope in England, while also removing the English ecclesiastical courts’ ability to appeal to Rome. This particular disqualification still surfaces in New Zealand and Australian restrictions on parliamentarians demonstrating loyalties to a ‘foreign power’,54 and has in both countries been explicitly discussed in terms of Roman Catholics’ relationship to the Vatican.55 The next significant eligibility statute was enacted in 1707. This addressed not the personal characteristics of the candidate but what he did.

The Position of Officeholders The first major attempt to regulate candidature on the basis of position occurred with the 1707 Act of Succession to the Crown. This Act was a re-enactment of an Act of 170556 and embodied three principles: a)  the incompatibility of certain offices with membership of the House of Commons; and linked to this b) the need to limit Crown influence over the Commons;   Ibid, 141.   12 & 13 Will III c 2. Section III provides: ‘[N]o person born out of the Kingdoms of England, Scotland, or Ireland, or the dominions thereunto belonging (although he be naturalized or made a denizen, except such as are born of English parents) shall be capable to be of the Privy Council, or a member of either House of Parliament . . .’ 52   G Carney, Members of Parliament: law and ethics (Prospect Media, St Leonards, NSW, 2000) 29. 53   24 Hen VIII, c 12. 54   Australia Constitution Act 1900 (Cwlth), s 44(i); Electoral Act 1993 (NZ), s 55(1)(b). 55   In Australia, the matter was raised in Crittenden v Anderson (1977) 51 ALJ 171; in New Zealand it arose during debates on the legislation to suspend that section retrospectively due to the inadvertent breach of the related s 55(1)(c) by a Cabinet Minister. 56   This was necessary because of Union with Scotland. 50 51

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c) while maintaining the fusion of personnel between the executive and Parliament that defines the Westminster system of government. The Place Act 1741 and Burke’s Act 1782 continued these principles by successively limiting the officeholders who could sit in the Commons, until only holders of ministerial offices were able to do so. In the earliest parliaments, clergy were represented in the Commons by proctors of their own choosing.57 They then began to withdraw from the Commons. A series of decisions led to their being disqualified by privilege.58 This was on the basis that they had their own separate system of representation and taxation at Convocation,59 so were not part of the general electorate, being neither choosers nor the chosen. However, by the turn of the nineteenth century, this justification could not be sustained. The new basis for clergy disqualification was that the clerical stipend was also a form of Crown benefice, and thus its holders should be excluded on the same basis as other holders of Crown officeholders. Church of England, Ireland and Scotland priests were disqualified by the House of Commons (Clergy Disqualification) Act 1801. The Roman Catholic Relief Act 1829 disqualified Roman Catholic priests as a corollary of enfranchising Catholic men. Like clerics, judges were seen as ineligible on two grounds. First, some judges were advisers to the House of Lords (and thus disqualified from Commons membership). Secondly, it was of supreme importance that they carried out their duties independently.60 The common law disqualifications took statutory form in 1873 under the Supreme Court of Judicature Act. This was the last major reform in candidate eligibility law until the Second World War.

C.  The Second World War Reforms In 1941, the Select Committee on Offices or Places of Profit under the Crown undertook an extensive examination of the conflict of interest criterion. This was sparked by some uncertainty over the position of certain Commons Members who had been appointed to various positions overseas.61 Temporary validating legislation was enacted,62 but the situation revealed that the ‘unsatisfactory and illogical’63 position of the law was in need of reform. The main proposal which emerged from the Committee’s deliberations was to change the general disqualification for those holding an ‘office or place of profit   Campion, above n 47, 149.   Ibid. 59   HW Ballantine, Blackstone’s Commentaries (Blackstone Institute, Chicago, 1914) 175. See also the case of Alexander Nowell, who on 4 September 1553 was returned for the Borough of Looe but was declared unable to sit ‘owing to his being a Prebendary at Westminster, and thereby having a voice in the Convocation House’: Records of Returns to Parliaments of England (House of Commons, London, 1878) 381. 60   Offices or Places of Profit under the Crown, above n 31, xxvii. 61   Ibid, v. 62   House of Commons Disqualification (Temporary Provisions) Act 1941. 63   Offices or Places of Profit under the Crown, above n 31, vi. 57 58



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under the Crown’ and replace this with a rule that all Crown officeholders would be disqualified other than those specifically excepted. The Committee also recommended the abolition of the ‘common informer’ rule,64 which allowed transgressing MPs to be sued by any individual for £500 per day spent sitting. Evidence was brought before the Committee that the common informer jurisdiction had never been exercised since its inception in 1707,65 although its existence may have had some inhibitory effect on MPs. However, in order to preserve ultimate parliamentary control over who might be a member, the Committee recommended that special legislation be adopted permitting the House to resolve that Members who had inadvertently disqualified themselves or accepted a disqualifying office unaware of the consequences of doing so, would not have their seats vacated.66 Its recommendations were drafted into a bill in 1943, but in wartime were given low priority. The bill was not enacted until 1957 after reconsideration by another select committee.67 There was one major change, and that was to provide a detailed list of those offices which could not be held by Members of the Commons. The purpose of this greater specificity was to ensure that any restrictions on parliamentary membership should be ‘in a form easily interpreted by, and readily available to, those who may be directly affected by it’.68 The Committee rejected the suggestion that the principle of ‘reverse disqualification’ should be adopted, ie that holding one of the specified offices would cause a Member to lose that office rather than his seat. The reason for the rejection was that ‘the existing principle leaves the House more in control of its composition and procedure, and the introduction of “reverse disqualification” might lead to conflict between the House of Commons and the Courts’.69 The position of clergy was considered by both Committees but left alone until the reforms of 2001. The difficult and inconsistent position of the law was acknow­ ledged, but the question of reform was put to one side on the basis that change should be initiated by the clergy themselves rather than being imposed upon them. This position was maintained even in the face of evidence brought before a 1953 Committee set up to inquire into clergy disqualification, that clergy of many different faiths recommended repeal.70 That Committee also recommended no change to the law.71 64   This still survives in Australia: see Australia Constitution Act 1900 (Cwlth), s 46. The common informer provision was retained in the case of clergy even when abolished with respect to other disqualifications: House of Commons (Clergy Disqualification) Act 1801, s 2. 65   Offices or Places of Profit under the Crown, above n 31, xxxii. 66   Ibid, xxxiv. 67   On the legislative history of the bill, see SA de Smith, ‘House of Commons Disqualifications Act, 1957’ (1957) 20(5) MLR 492. It has also been suggested that the delay was because some of the 1941 Committee’s recommendations were difficult to express in legal form: O Gay, ‘Disqualification for membership of the House of Commons’ (House of Commons Standard Note, London, 13 October 2004). 68   Special Report from the Select Committee on the House of Commons Disqualifications Bill (26 July 1956) iv. 69   Ibid, v. 70   Blackburn, above n 11, 191. 71   Ibid.

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The House of Commons Disqualification Act 1957 was largely re-enacted in 1975 with the same name. This re-enactment was necessary because the disqualifications relating to Northern Ireland were placed in a separate statute. The 1975 Act remained the basis of eligibility laws until the series of further reforms in the last decade.

IV.  Should the Legal Basis of Candidature be Changed? Candidature rights and voting rights may be seen as two halves of the one electoral right. With this in mind, we consider whether candidate eligibility provisions can usefully adopt any of the bases for the exercise of the franchise. Eligibility for candidature and eligibility to vote are very similar. To be eligible to vote in general elections, a person must be registered to vote. Registration is open to those who are 18 years of age or older,72 resident in the constituency in which one wishes to vote in,73 have the appropriate citizenship (UK, Irish, or ‘qualifying’ Commonwealth citizenship) and are not subject to any disqualifications. Prisoners,74 those convicted of electoral offences75 and sitting peers76 are disqualified. The first difference to note is the most significant. While a person must reside in a constituency in order to vote for its representative, candidates for that constituency themselves incur no such obligation. This is surprising, given that the electoral system is structured to give effect to localised representation. Much of the electoral literature addresses the proper boundaries of territory-based representation, in terms of to whom the representative is accountable, the point of accountability and its terms. If it is so important in our electoral thinking, then why is it not required by law? Even if we accept Coke’s view that representatives represent the nation, with localised elections being the mechanism to effect this, this does not sit well either with the electoral system as a whole, or with the obligations imposed on voters. Furthermore, residency requirements have been upheld by the European Court of Human Rights in P1-3 cases as acceptable restrictions on candidacy rights.77 Given this, it would be unlikely that a requirement to reside in the constituency a candidate represents would successfully be challenged. It is worth noting that the actual residency requirement for voters is minimal, with no minimum period of residency required in a constituency for registration. The test is a holistic assessment of the purpose and patterns of residency at a nom  Representation of the People Act 1983, s 1(1)(d) and s 2(1)(d).   Ibid, s 5(2). 74   Ibid, 3(1). Section 3A also disqualifies from voting all prisoners detained in a mental hospital. 75   Convictions for personation under s 60 of the Representation of the People Act 1983 incur a disqualification from voting for five years, while other voting offences under s 61 are illegal practices and result in a disqualification of three years. 76   Stowe v Joliffe (1874) LR 9 CP 734, 750. 77   Melnychenko v Ukraine (2006) 42 EHRR 784 (Section II). 72 73



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inated address.78 Residency laws were reformed in the Representation of the People Act 2000 to facilitate the registration of homeless people. Those of no fixed abode are now able to register to vote if they can demonstrate that they have a notional residence by declaring a ‘local connection’. This requires the provision of a postal address, and an indication of a place where the person ‘commonly spends a substantial part of his time’.79 Either of these approaches would meet the ECHR’s tests of minimal impairment of the right of candidature, legitimate aim and non-­ disproportionate means of achieving that aim. The re-imposition of the residency requirement for candidates (it first having been introduced in 1413) is worth considering. Another clear difference is the position of prisoners. Although prisoners serving a sentence of any length in the UK may not vote at present, restrictions on prisoners’ franchise have frequently been subjected to successful challenge under human rights laws. Governments’ claims that prisoners should not vote because of their breach of the social contract and the need to enhance respect for the law by the imposition of a an additional penalty80 have been doubted by the highest courts in South Africa,81 Canada82 and the EU.83 But they have been upheld in the United States84 and New Zealand.85 However, while prisoners’ voting rights are a contested issue, the restriction on their candidacy rights is much easier to justify in terms of the ECHR’s threepronged formula of legitimate aim, non-disproportionate means to achieve that goal and minimal impairment. Even in this technological age, there can be no substitute for actual physical attendance in the Parliament. Depriving prisoners of candidacy affects not only the prisoner, but also those he wishes to represent. In addition, the Parliament itself would be affected by absentee members who cannot share the legislative workload. Although the right is completely removed, in the UK, unlike in the US, the restriction does not outlast the period of imprisonment.   Representation of the People Act 1983, s 5.   Ibid, s 7B(4)(b). 80  The justifications for prisoner disenfranchisement can be found in H Lardy, ‘Prisoner Disenfranchisement: Constitutional Rights and Wrongs’ [2002] PL 524, 527–37. 81   Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders [2004] ZACC 10. 82   Sauve v Canada (A-G) (No 2) (2002) DLR 218 (4th) 577. 83   Hirst v United Kingdom (No 2) (2006) 42 EHRR 41. In Hirst, the ECtHR found the UK’s blanket prisoner disenfranchisement rules to be in breach of P1-3. In response, the Government has issued two Consultation Papers: see Department for Constitutional Affairs, Voting Rights of Convicted Prisoners Detained within the United Kingdom (December 2006); and Ministry of Justice,Voting Rights of Convicted Prisoners Detained within the United Kingdom (Consultation Paper CP6/09, Ministry of Justice, London, April 2009), accepting that compliance with the Convention requires prisoner enfranchisement, but premising that enfranchisement should depend on sentence length. In April 2011, the Grand Chamber of the ECtHR rejected the UK Government’s appeal in a related prisoner disenfranchisement case (Greens and MT v UK [2010] ECHR 1826) and reminded the Government that it had six months to introduce legislation compliant with the decision in Hirst. 84   Richardson v Ramirez 418 US 24 (1974). 85   Re Bennett (1993) 2 HRNZ 358. For critique of this case, see G Robins, ‘The Right of Prisoners to Vote: A Review of Prisoner Disenfranchisement in New Zealand’ (2006) 6(4) New Zealand Journal of Public and International Law 165. 78 79

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Another point of difference is that mental incapacity is no longer a restriction on the exercise of voting rights, while it remains a barrier to candidates. As with prisoners, capacity, meaning the ability to be physically or mentally present as a representative, is a serious concern. Lastly, there are no restrictions on the occupations which may be held by voters. This contrasts with the extensive range of restrictions on candidates’ occupations. Many of these are clearly justifiable in order to preserve separation of powers, or the integrity of the electoral or constitutional system, but the issues of the candidature of civil servants and members of certain foreign legislatures are in need of further analysis.

A.  Lessons from the Commonwealth? We turn now to the eligibility provisions from other Commonwealth nations. While these largely mirror those of their mother Parliament, there are some differences worth examining. Prominent amongst the differences is the question of citizenship. For example, Australia simply does not permit its candidates to have any citizenship other than Australian.86 New Zealand takes a slightly more relaxed approach, allowing the candidacies of dual citizens, but disqualifying those who seek to acquire non-New Zealand citizenship during the parliamentary term.87 Canada requires its candidates to be Canadian citizens.88 The overarching reason for this is the prevention of actual or perceived divided loyalties. Against this backdrop the very wide range of citizenships permitted for UK candidates is striking. Even the recent restriction of Commonwealth citizenships to ‘qualifying’ was enacted to match the reform of voting eligibility due to fears about the disproportionate impact some refugee communities may have had in certain electorates, rather being based on concerns about Commonwealth candidates. As with the lack of a residency requirement, it is curious that a person may represent a country of which he or she is not a citizen. This goes against virtually all the assumptions of representation made in legal and political theory discussions – in particular, that representatives should be closely linked to a particular community, which is generally understood to be contained with a State’s territorial boundaries. Even if Irish citizenship alone could be justified as permissible for non-British candidates on the basis of the close history between the two countries, the link between the Commonwealth and the UK is less close. Under the current legislation, a citizen of Mozambique, a former Portuguese colony but a member of the Commonwealth, could stand and be elected to the House of Commons, provided she has the right to reside in the UK. 86   Australia Constitution Act 1900 (Cwlth), s 44(i). Cases on this provision include Sykes v Cleary (1992) 176 CLR 77 and Sue v Hill (1999) 165 CLR 178. 87   Electoral Act 1993 (NZ), s 55(1)(b) and (c). 88   Canada Elections Act 2000 (Can), s 65.



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Further on the matter of divided loyalties, even more curious is the fact that a candidate for the House of Commons may already be a member of a Commonwealth or Irish legislature. Given the emphasis elsewhere in candidate eligibility laws on the prevention of conflicts of interest in relation to constituencies and amongst branches of government, it is hard to see how this could be seen as justifiable, yet the removal of the prohibition of Irish legislators’ candidacies came as recently as 2000, some years after it had been held acceptable by the European Court of Human Rights. But a person may not be a member of both the House of Lords and the House of Commons. Is membership of two branches of the same body more of a concern than membership of two different bodies in different jurisdictions? If separation of powers is so definitive at the domestic level so as to keep the executive at arm’s length from the legislature, and to prevent common membership of the branches of the legislature itself, it should be also important at the inter­national level. Most of the time, the Lords and the Commons work towards a common goal, whereas this cannot be said to be the underlying presumption which would attach to the national legislatures of two different countries, no matter how cordial their relations or close their history. Reversing the 2000 removal of the prohibition on Irish legislators’ candidacies should be able to be robustly defended on human rights grounds, as well as bringing greater consistency to the UK’s candidate eligibility laws. The particular problem of public servant eligibility was mentioned in section I.B above. The absolute ban on public servants’ candidacy established by the House of Commons Disqualification Act 1975 has been justified on the basis that they should keep their political views a private matter. To do otherwise would impugn the neutrality of the public service and its ability to serve governments of whatever political persuasion.89 However, the current solution, requiring civil servants to resign before announcing their candidature, does seem rather drastic. Civil servants may express their political preferences secretly through the ballot box but are severely penalised if they attempt to do so expressly as a candidate during an election campaign. Furthermore, it is worth noting that there are no restrictions on their ability to join political parties or otherwise participate in elections. So they may be seen assisting candidates to campaign in all sorts of ways (thus betraying their political affiliations), but they may not be candidates themselves. One possible solution might come from the New Zealand approach to this particular problem. Section 52 of the Electoral Act 1993 (NZ) specifically addresses the candidature of public servants (this includes the police). It provides that any public servant wishing to become a candidate shall be placed on unpaid leave of absence from the point of nomination until elected, at which point she will be deemed to have resigned her post, or if not elected, until the first working day after the poll. The section further provides that during this time public servants may take any paid leave accrued to them. This compromise enables public servants to exercise their

  Blackburn, above n 11, 171.

89

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candidacy rights, while at the same time guaranteeing their job security. Similar provisions operate in Canada90 and in Australia.91

V.  The Moment of Eligibility Whichever criteria are chosen as the boundaries of candidature, candidate regulation cannot be self-policing. This section explores the issues of who determines whether a candidate can stand or become a representative, and at what point and how that determination takes place. It is somewhat counter-intuitive that most challenges to an individual’s suitability as a candidate come after the term of candidacy is over, not least because it raises the issues of whether voters knew about the lack of eligibility and how to respond to the question of knowledge. These post-election challenges will be addressed in chapters four and six, but in sum, the usual modern method for those who believe a candidate was unqualified to stand is through the courts in the form of an election petition. Disqualifications which are incurred after a candidate has been declared elected and taken her seat may be tackled in a number of ways. They may be dealt with as a matter of privilege, the House may resolve to ignore the disqualification, or they may be referred to the Privy Council for a determination under the Judicial Committee Act 1833.92 In order to be named on the ballot as an independent or political party candidate, an individual must first be successfully nominated as such. The nomination process consists of filling out the appropriate forms and consenting to one’s nomination by 10 named ‘subscribers’. The subscribers, unlike the prospective candidate, must be electors in the constituency for which the individual wishes to stand. Candidates are required to declare their names and addresses on the nomination form, and if they wish may provide a description (political, professional or occupational). The nomination paper may not include a description of a candidate which is likely to lead voters to associate a candidate with a registered political party, unless the party is a qualifying party in relation to the constituency and the description is authorised by a certificate issued by or on behalf of the registered nominating officer of the party.93 The nomination must also be accompanied by a deposit of £500.94 Prospective candidates must also declare that they are aware of the provisions of the House of Commons Disqualification Act and to the best of

  Canada Elections Act 2000 (Can), s 80.   The Public Service Act 1999 (Cwlth), s 32 requires, subject to certain conditions, the reappointment of public servants who resigned in order to contest an election but were unsuccessful. 92   Judicial Committee Act 1833, s 4. 93   Representation of the People Act 1983, Sch I, rule 6A(1). 94   Ibid, rule 9(1). 90 91



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their knowledge and belief are otherwise not disqualified for election.95 This implies that the onus is on candidates to discover whether they are eligible or not, and not to enter the contest if they are not eligible. This view is bolstered by the 1899 case of Harford v Linskey.96 This laid down the principle that the moment of nomination was the point at which eligibility factors were to be taken into account,97 but must, given the case law discussed in section V.A below on the limited ability of returning officers to inquire into a candidate’s eligibility, be seen as an obligation resting primarily on the candidate. The law is clear that a returning officer’s decision to accept a nomination is not susceptible to judicial review.98 Third parties who consider that the acceptance was wrong must rely on the post-election avenues mentioned above. However, there is some authority for the converse proposition that a rejection may be challenged by way of judicial review.99 Given this, on what basis might a nomination paper be rejected?

A.  Statutory Refusal of Nomination Very few candidates are rebuffed at nomination. It has been said that it is not the duty of the returning officer to look for objections in fact to nomination papers when handed in, much less to call the attentions of rival candidates to them. If this were done it would destroy the confidence electors ought to have in [his] impartiality.100

This view aligns with the justifications for minimal candidature requirements, ie that it is for the electorate rather than State officials to judge the suitability of those who put themselves forward. One exception is the case of prisoners, whose inability to attend the House immediately discounts them as possible representatives and thus justifies their exclusion at the nomination stage.101

  Ibid, rule 8(3)(b).   [1899] 1 QB 852. 97   Ibid, 858: ‘[A] person who at the time of nomination is disqualified for election is disqualified also for nomination.’ 98   Representation of the People Act 1983, Sch I, rule 12(5) ‘The returning officer’s decision that a nomination paper is valid shall be final and shall not be questioned in any proceeding whatsoever.’ 99   This is based on the omission of the words ‘or invalid’ from the ouster clause in rule 12(5). See also R(De Beer) v Balabanoff [2002] EWHC 670 at [36], where Scott Baker J commented on the earlier but identically-worded version of rule 12(5): ‘The wording of that rule seems to me to leave open the converse situation where the returning officer has decided that a nomination paper for one reason or another is invalid.’ His Honour did, however, urge caution in bringing an action against the returning officer, saying ‘this is an area in which the courts should be extremely slow to interfere. . . . ordinarily a returning officer should be left to conduct the election process as provided by Parliament.’ Ibid at [37]. 100   R v Taylor (1895) 59 JP 393. 101   But see H Rawlings, Law and the Electoral Process (Sweet & Maxwell, London, 1988) 115, questioning this rationale on the basis that the proper distinction to make is between candidature and electability. This objection does raise further questions, however, about how to deal with the situation of a prisoner being elected when the very fact of incarceration would mean he or she could not attend the House. 95 96

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Outside the rejection of prisoner candidates, a returning officer’s powers are limited to refusing nomination papers which are not correct as to the candidate’s details or those of the subscribers, or where they are lacking with respect to the subscription requirements (that is, they are not as ‘required by law’).102 For example, returning officers may reject candidates who do not stand under their real names.103 This restriction was loosened somewhat recently, with the Electoral Administration Act 2006 now permitting candidates to be nominated as they are commonly known.104 Thus Katie Price might now stand as Jordan, should she so wish.105 However, a nomination on this basis may yet be rejected if the returning officer believes voters could be misled or confused by the name, or if the name is offensive or obscene.106 On the face of these rules, which limit the returning officer’s powers of rejection to those specified grounds, other questions about the qualifications of the candidate must therefore wait until after the election.107 Despite this, the extent of a returning officer’s powers to question a candidate’s qualifications has often been tested. Shortly after the election petitions system was reformed in the 1870s, in the case of Pritchard v Mayor of Bangor, Lord Herschell considered a situation where one nominee was alleged to be disqualified from standing in a local election due to his already having a place on the council. Of the extent of the Mayor’s powers under the Municipal Corporations Act 1882 to entertain objections to nomination papers, His Lordship said: Now these provisions appear to me to indicate that it could not have been intended that the mayor should entertain such a question as to the qualification of a candidate; because it is impossible to suppose that the legislature provided that a question of that sort should, on it may be, very imperfect information and without legal assistance, be finally and conclusively determined by the mayor.108

In the previous century, several disputes over nomination papers reveal a consistent line of reasoning that a returning officer may not go beyond the face of the nomination paper in assessing its validity.109 For example, in Watson v Ayton,110 102   Representation of the People Act 1983, Sch I, rule 12(2). A returning officer may also correct minor errors in spelling or electoral numbers: rule 14A. 103   Ibid, rule 6(2). There is extensive common law authority as to what constitutes one’s ‘real name’ in the context of nomination. 104   Electoral Administration Act 2006, s 21, amending Sch I to the Representation of the People Act 1983. 105   In 2001, Ms Price stood in the Stretford and Urmston constituency. She obtained 1.8% of the vote: ‘Vote 2001 Results and Constituencies’, BBC News Online (14 August 2001), available at . 106   Representation of the People Act 1983, Sch I, rule 14(2B). 107   R v Election Court, ex p Sheppard [1975] 2 All ER 723, 727. 108   Pritchard v Mayor of Bangor (1888) 13 App Cas 241, 257. 109   But see In Re Melton Mowbray (Egerton Ward) Urban District Council Election [1969] 1 QB 192, 198, a challenge based on a subscriber being known as ‘Nellie Marment’ but signing as ‘E Marment’, where Paull J said that there was ‘no authority to suggest that a returning officer merely has to look at the form with which he is presented. He has the opportunity to make such inquiries as he thinks right.’ 110   [1946] KB 297.



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where a candidate’s nomination was invalidated on the basis that he was in the pay of the Crown as a schoolteacher, Hallett J noted that the returning officer ‘is limited to an inquiry into the validity of the nomination paper having regard to the provisions of the schedule’.111 This holds true even when the returning officer has not strayed beyond the permitted grounds of invalidation. Thus in Sheppard’s case, a challenge based on whether the candidate had used his true home address, Lord Widgery CJ said that the returning officer’s duties do not ‘[go] beyond seeing that the form is correct on its face’.112 Likewise in Greenway-Stanley v Paterson, a dispute over the candidate’s true surname, it was said that the returning officer was not entitled to go beyond the face of the nomination paper if the particulars appear unobjectionable.113 Thus it would seem that a returning officer’s powers to assess a candidate’s suitability for nomination are fairly limited, being confined to the statutory grounds set forth on the form, and even then being unable to inquire further should the details appear to be in order. There is however, a resurgent line of authority that suggests that a returning officer may have wider powers over nominations.

B.  A Common Law Power of Refusal of Nomination? It has been suggested that there might also be a common law power of refusal of nomination.114 This applies particularly in the case of what are known as ‘spoiler candidates’. These are individuals who seek to siphon off votes from a party by styling themselves similarly to the leading party or candidate in the electorate and benefiting from the resultant confusion (or they may simply wish to disrupt the electoral process itself).115 Typical of such descriptions are the ‘Literal Democrats’ rather than the Liberal Democrats,116 or the case of the man who changed his name to Margaret Thatcher and stood in the real Margaret Thatcher’s electorate.117 In response to such cases, the Registration of Political Parties Act 1998 and now the Political Parties, Elections and Referendums Act 2000 enacted provisions forbidding the use of a party name on the ballot paper other than by the party registered with the Electoral Commission.118 However, Bob Watt has pointed out that this may be subverted by the simple technique of using the impugned description (such as ‘The Official Byron Ward Conservative’)119 in every context other than on   Ibid, 301.   Sheppard, above n 107, 726.   [1977] 2 All ER 663, 670, per O’Connor J. See also Wien J at 671, casting doubt on the extent of the returning officer’s ability to make inquiries as stated in Re Melton Mowbray. 114   B Watt, UK Election Law: a critical examination (Glasshouse Press, London, 2006) 92. 115   Ibid, 91. 116   Sanders v Chichester (1995) 92(3) LS Gaz R 37; (Election Court, 11 November 1994). 117   R v Returning Officer for Barnet and Finchley, ex p Bennett (CA, 3 June 1983). 118   Political Parties, Elections and Referendums Act 2000, s 22. 119   Patterson v Merrick (CA, 2 November 1988). 111 112 113

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the ballot paper, and the desired, albeit possibly diluted, effect may still be achieved.120 Watt maintains moreover that legislation to combat this problem was unnecessary in the first place because of an already-existing common law rule. The basis for this is a comment from Wright J in Harford v Linskey, which states: We do not understand it to be laid down in the Bangor case that a nomination cannot ever be rejected except for informality in the form of presentation of it. If the nomination paper is, on the face of it, a mere abuse of the right of nomination or an obvious unreality, as, for instance, if it purported to nominate a woman or a deceased sovereign, there can be no doubt that it ought to be rejected, and no petition could be maintained in respect of its rejection.121

This passage has troubled more than one judge deciding the limits of a returning officer’s powers. In an early assessment of it, Kennedy J in Hobbs v Morey122 considered that it operated in situations where the candidate was ‘manifestly disqualified’,123 such as the nomination of a woman (this being before women were permitted to stand). However, it did not apply in those cases where the candidate appeared otherwise qualified to stand.124 In Watson v Ayton, Hallett J noted the difficulty the Harford comment had caused for commentators on electoral law, and took pains to confine it to its facts.125 In Greenway-Stanley, O’Connor J summarised his understanding of the correct interpretation of the passage thus: But what the courts were saying in the latter part of the nineteenth century and the early part of this century was that unless the disqualification appears on the face of the nomination paper then no action can be taken on the part of the returning officer.126

This appeared to settle the matter until the possibility of rejecting a nomination on the basis of the Harford grounds of ‘abuse of nomination or obvious unreality’ resurfaced in the ‘Literal Democrats’ case of Sanders v Chichester.127 In this 1994 case, Dyson J referred to the possibility of rejecting a nomination not only on the statutory grounds, but also where the nomination was a sham or a nullity. This was despite the fact that rule 12(2) permits the returning officer to hold a nomination paper invalid only on certain specified grounds (which grounds do not include shams). Dyson J acknowledged this, noting that ‘the returning officer is given no express power to investigate the validity of the [nomination]’.128 However, he said,   Watt, above n 114, 98.   Harford v Linskey, above n 96, 862. 122   [1904] 1 KB 74. 123   Ibid, 78. 124   Ibid, 79. 125   Watson v Ayton, above n 110, 302. 126   Greenway-Stanley v Paterson, above n 113, 669. 127   Above n 116. The issue was also considered in ex p Bennett, above n 117, but there the Court, although it cast doubt on whether Harford was good law, declined to decide the question of whether the returning officer was entitled to reject a nomination on the Harford grounds. See RJ Clayton (ed) Parkers Conduct of Parliamentary Elections (Charles Knight Publishing, Croydon, 1996), paras 8.34A–8.35. Parker’s notes nonetheless that the Court also declined to grant the disgruntled, newly-named by deed poll ‘Mrs Thatcher’ judicial review of the returning officer’s decision to reject the nomination, on the basis that persons seeking to confuse the electorate in this way should not be assisted by the courts. Ibid, para 8.34A. 128   Sanders v Chichester, above n 116, 11. 120 121



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this was subject to nominations which were ‘manifestly a sham’.129 Dyson J justified introducing this implied exception on the basis that ‘the words “not as required by law” are sufficient to exclude descriptions which are illegal. The exclusion of sham nomination papers would deal with the example given by Wright J of the deceased sovereign.’130 Dyson J elaborated on what might be outside what was ‘required by law’: The candidate who obviously gives a fictitious name such as ‘Mickey Mouse of Disneyland’. The law has always treated sham documents and transactions as nullities. That would be a sufficient basis for holding a nomination paper to be invalid on the basis that the particulars were not as required by law. . . . Candidates who give descriptions that are obscene, racist, or an incitement to crime deliver particulars that are ‘not as required by law’ because they contravene the law and/or will inevitably involve the returning officer in a breach of the law, not because they are an abuse of the right of nomination.131

Some contend that this reintroduces the rule in Harford v Linskey, at least with respect to spoiler candidates, since spoiler candidates must be seen as a sham.132 But I think this interpretation is unnecessary. First, Dyson J commented that the fact that some voters might be confused by a candidate’s chosen words of description [ie as a Literal Democrat] was irrelevant . . . unless those words had obscured the identity given to the candidate by his full name and address.133

Thus, at the time of the judgment, if the candidate could be identified by voters as a singular distinct individual, then the possibility of confusion with another individual was not enough to take the nomination paper outside what was ‘required by law’. These words narrow the rule to exclude the possibility of rejecting a nomination based on confusion with parties rather than candidates. However, notwithstanding this interpretation of Dyson J’s comments, it would seem that candidates hoping to cause confusion with an existing party, such as the ‘Literal Democrats’, were caught sometime ago by the provisions in the Political Parties, Elections and Referendums Act 2000 which require party names to be registered in order to be used on the ballot, and prevent registration of names which may cause confusion with an existing party. If the purported party name appears not as a registered name but as part of the candidate’s description, then the Sanders exception has been superseded by rule 6A which prevents such devices from being employed. With regard to individual candidates, we must now also take into account the new powers given to returning officers under the Electoral Administration Act 2006. Mentioned earlier, these allow the returning officer to reject nominations where the chosen name is misleading or confusing (thus covering situations such as the male Mrs Thatcher).   Ibid, 24.   Ibid. 131   Ibid, 23. 132   See, eg, Watt, above n 114, 112. 133   Sanders v Chichester, above n 116, 12. 129 130

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Given these developments since the Sanders case, it is hard to agree that the phrase ‘manifestly a sham’ is what serves to permit returning officers powers to exclude from standing either bearded men named Margaret Thatcher or candidates representing the ‘Conservatory Party’.134 The real power of rejection must be said to have been refolded into statutory form. Secondly, it is difficult to justify granting a power to returning officers to decide who is a legitimate participant in the electoral process and who is not; if someone is sufficiently opposed to a politician or party to go to the lengths of standing in an election (perhaps even having officially changed his or her name) with the hope of damaging another candidate’s or party’s chances of success, how can that be characterised as a ‘sham’? Most electoral candidates wish to damage other candidates’ prospects of success, and some may employ tactics such as rumour and covert vandalism of other’s electoral publicity in the process, as well as the more elevated ground of battling over policy. The motive for participation should not be subject to question by electoral officials, especially in light of the corresponding absence of any similar provisions in candidate eligibility laws. In addition, the concerns raised about impartiality in Bangor should a returning officer be able to go beyond the face of the nomination paper are still relevant. To preserve the integrity of the electoral process, it is better for the electorate, or the affected individual or party, to raise the issue of motive and do their best to dispel confusion. Even then, some voters may not be confused but may wish to make a deliberate statement of support for the spoiler candidate’s motivations (or against the electoral process generally). This form of political expression should not be taken away at the hands of the returning officer. Restricting candidature rights in this way also has the flow-on effect of affecting voters’ rights to choose from the largest slate possible, a concern which has formed the bedrock of a number of investigations into candidature eligibility reforms. This principle should not be disturbed without good reason; and, it is submitted, those reasons do not obtain here. One small part of Sanders does seem to have survived this analysis. That is the further identification of what sort of descriptions might not be within the term ‘required by law’: those which are obscene, racist or an incitement to crime. However, even this does not provide returning officers with clear guidance. Are the descriptions ‘British Nationalist’ or ‘Follower of Malcolm X’ racist? Or are they simply describing a legitimate political stance? For many years, the Aotearoa Legalise Cannabis Party has contested elections in New Zealand. Since this party actively advocates the use of a currently illegal drug, could this be considered an incitement to crime? We find ourselves back with the comments of Lord Herschell, wondering whether this is the sort of judgement that should be made by the returning officer who may have ‘imperfect information and [no] legal assistance’.135 Candidate nomination law is a highly technical area of electoral law. Yet its technical approach both encompasses and illustrates some fundamental questions   Watt, above n 114, 112.   Pritchard v Mayor of Bangor, above n 108, 257.

134 135

Conclusion 67 of principle in electoral law generally. How much control should officials have over the process of nomination, and on what basis? This not only raises questions concerning the line between good electoral administration and interference with the political process; it also brings to the fore the matter of political expression rights in the form of a potential candidate’s right to participate in the electoral contest as he prefers (within the boundaries of law) and the voter’s right to exercise her right to choose to the full, by deciding the range of candidates who are listed on the ballot. These dilemmas are best avoided, and the principles given their best effect, by preventing returning officers from going beyond the face of the nomination paper.

VI. Conclusion This investigation into the law on candidate eligibility reveals an ever-increasing widening of the pool of those permitted to put themselves forward for voters’ consideration. In recent years, the age limit has been lowered, clergy ineligibility removed and peers allowed to stand. These changes demonstrate two principles at work: first, that candidature should be open to as many individuals as possible; and, secondly, that the touch of the law should be light, enabling voters to make their choice with as few limitations as possible to preserve the integrity of the system and its actors. This is in line with recent human rights jurisprudence which requires that the legislature be chosen according to the free will of the people. In the UK, these principles now operate close to their full expression. Eligibility laws do however show some curious inconsistencies in need of attention. Why is it that candidates may not stand for both Houses of the domestic legislatures yet they may be members of certain foreign legislatures? Candidature is off-limits to citizens of the EU, yet Commonwealth citizens (even from those countries which were not British colonies) may put themselves forward. Why is one not even required to live in the constituency for which one stands when the electoral system is based on geographically-defined communities of interest? Why are public servants prevented from standing when they may display their political allegiances in many other public ways during the election campaign? Clearly the reform of candidature laws is not yet complete. Candidature needs to be closed off to some groups in order to ensure that conflicts of interest do not jeopardise the work of the legislature, while at the same time it needs to be opened up to others so that voters’ choice is not unfairly restricted. In undertaking any further reform, some useful insights may be gleaned from the laws on voting eligibility and other countries’ candidate eligibility laws. Particularly worth considering are an alignment between voting and candidature residency requirements, removing the ability of Commonwealth and Irish legislators to stand, and a relaxation of the prohibition on public servants’ candidature rights.

4 Controverted Elections I. Introduction Election petitions are not often seen in our courts or discussed in the legal literature. Little-used and rarely scrutinised, they exist in the shadows of electoral law, which is typically more concerned with voting rights and political finance rules. In 2010, Liberal Democrat candidate Robert Watkins brought election petitions back into the light when he brought a petition challenging the election of Labour candidate Philip Woolas to the Oldham East and Saddleworth constituency in the general election on 6 May 2010. Mr Woolas was found by the Election Court to be guilty of an illegal practice contrary to section 106 of the Representation of the People Act 1983, in that he had made three false statements of fact relating to Mr Watkins’s personal character or conduct.1 The automatic consequence of this finding was that Mr Woolas’s election was voided2 and he was disqualified from standing for a House of Commons election for three years.3 The matter did not end there, however. Mr Woolas sought judicial review of the Election Court, claiming that an error of law had been made. Review was first denied by Mr Justice Silber,4 but on a renewed application before a full bench of the High Court it was allowed.5 The High Court found that Mr Woolas was entitled to have one of the findings set aside, but the other two would stand. The resolution of the electoral contest then reverted to the political sphere. A by-election followed in January 2011, which was won by the Labour Party. Mr Watkins joins a select group whose members have contributed to the shaping of the law on disputed elections. As the Tudor historian JE Neale has remarked in the context of Elizabethan election disputes, ‘[f]ortunately, there were a few people, vindictive, litigious, or touchy enough to take their cases to court’.6 This chapter considers the legal footprint left by those whose vindictiveness, litigiousness, touchiness or perhaps even sense of justice has led them to dispute elections. It traces the attempts to resolve complaints about the election (or non-election) of   Watkins v Woolas [2010] EWHC 2702.   Representation of the People Act 1983, s 159(1).   Ibid, s 160(4) and (5). 4   R (Woolas) v Parliamentary Election Court for Oldham East and Saddleworth (CO/11578/2010, 8 November 2010). 5   R (Woolas) v Parliamentary Election Court for Oldham East and Saddleworth [2010] EWHC 3169. 6   JE Neale, The Elizabethan House of Commons (Jonathan Cape, London, 1949) 255. 1 2 3

Introduction 69 representatives to the Parliament from the earliest days to the present time. Over the course of the centuries, many routes have been tried – direct appeals to the monarch, petitions to various courts, and hearings by Parliament and its committees. The current system, which has operated for over 140 years, involves a hearing before a specially-convened bench of the High Court. Reforms to the means of making legal challenges to election results now seem to have stalled. This does not mean, however, that reform is not needed. This chapter puts forward some suggestions for improving the present system of judicial hearings, based on dev­ elopments in the way elections are characterised and fought, and recognising the increased role of the Electoral Commission in monitoring and advising on electoral processes. The honour of bringing the first recorded challenge to an election result resides with Matthew de Cranthorn, who in 13187 brought a petition before King Edward II and his Council alleging that the sheriff of Devon, Robert Beudyn, had made a false return in the county election, ‘against the will of the community’.8 The undersheriff, who proved to be the one responsible for the false return, was called to account. Unfortunately no record survives of his punishment. De Cranthorn’s example was not followed by many at first. Glanville, the then Chair of the House of Commons Committee of Privileges and Elections, reported in his 1775 work cataloguing disputed elections that from that point until 1483, no ‘more than two or three Cases on Elections were questioned or complained of ’.9 The turning point came in the Elizabethan era, when there was a rise in the number of boroughs permitted to return members.10 At the same time, being a

7   Most writers place this episode in 1319, but HG Richardson ‘John of Gaunt’ (1938) 22 Bulletin of the John Rylands Library 175, 190, notes that Beudyn served as sheriff between May and November 1318 so the complaint must have brought in 1318. 8   This episode is recorded in law French in J Glanville, Reports of Certain Cases Determined and Adjudged by the Commons in Parliament (S Baker & G Leigh, London, 1775) xi–xii. An English translation may be found in L Riess, The History of the English Electoral Law in the Middle Ages (trans K WoodLegh) (Cambridge University Press, Cambridge, 1940) 52 and 57. 9   Glanville, above n 8, iv. In actual fact there were about half a dozen disputed elections during this period: in 1320, the sheriff of Lancashire, William Le Gentil, returned two knights without the county’s consent (J Maddicott, ‘Parliament and the Constituencies’ in RG Davies and JH Denton (eds), The English Parliament in the Middle Ages (Manchester University Press, Manchester, 1981) 73); in 1328, the Court of King’s Bench received a presentment from the jurors of Cambridgeshire alleging that for the past 7 years, the sheriffs had returned the writ without making an election (MM Taylor, ‘Parliamentary Elections’ (1940) 18 Bulletin of the Institute of Historical Research 21); and in 1404, the sheriff of Rutland had returned William Ondeby instead of Thomas Thorp (C Given-Wilson, The Parliament Rolls of Medieval England 1275-1504 (Boydell & Brewer, Woodbridge, 2005) (hereafter Rot Parl), Rot Parl III, 530) (it was ordered that the sheriff be confined to the Fleet Prison until the fine was paid, and that Thorp should be returned). In 1439, it was alleged that the sheriff of Cambridgeshire had failed to make a return (Rot Parl V, 7–8); Robert Foucher, the sheriff of Lancashire was charged that between 1332 and 1335 he had returned his clerks who had not been elected with the consent of the county (Richardson, above n 7, 191) (Foucher was found not guilty); and in 1362, there was a dispute involving the deputies of the sheriff of Lancashire, where it was queried whether they had been returned or whether two others had (Glanville, above n 8, xiii). 10  MF Keeler, ‘The Emergence of Standing Committees for Privileges and Returns’ (1982) 1 Parliamentary History 25, 39, fn 13.

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representative grew in prestige and became a more sought-after position.11 These factors, intertwined with the growing expenditure involved in securing a seat,12 meant that candidates were more likely to contest the outcome of an election. From that point onwards, election disputes became more common, culminating in dozens of challenges being brought at the election in 1865,13 a period when ‘the route to Parliament could be extraordinarily corrupt’.14 However, the number of disputed elections should not be over-stated. When set against the sheer number of elections that have taken place over the centuries, disputes over the result are relatively infrequent. Most modern UK elections proceed smoothly: on the appointed day, the electorate makes its choice within a well-oiled administrative framework, and from the amalgamation of millions of individual votes, 650 MPs are elected, a Parliament takes shape and a government is brought into being. Nevertheless, disputes over elections have not completely disappeared, Mr Woolas’s case being the most recent and high-profile example. In the last hundred years elections have been overturned by the courts on claims of unlawful or corrupt behaviour from candidates, their supporters or voters,15 that a candidate was ineligible to stand16 or that mistakes were made in the administration of the vote,17 thus proving that the phenomenon of determining elections other than by the ballot is still a live one. In fact, in the last decade challenges to elections seem to be increasing again, making even more important the issue of how these complaints are resolved when the political system fails.

  Ibid.   See, eg, CG Bayne, ‘The First House of Commons of Queen Elizabeth’ (1908) 23 English Historical Review 455, examining the evidence that Elizabeth I interfered in the 1559 election by pre-selecting candidates and by monarchical interference generally; GL Cherry, ‘Influence of Irregularities in Contested Elections upon Election Policy during the Reign of William III’ (1955) XXVII Journal of Modern History 109, cataloguing the prevalence of corrupt practices such as bribery, treating and intimidation in the later 1600s and 1700s. See also J Grego, A History of Parliamentary Elections and Electioneering in the Old Days (Chatto & Windus, London, 1886) passim, and especially at 226–46 for details of how corruption extended even to betting on the outcome of petitions; EA Smith, ‘Bribery and Disenfranchisement: Wallingford Elections, 1820–1832’ (1960) 75 English Historical Review 618. For a contrary view, see JA Phillips, Electoral Behaviour in Unreformed England (Princeton University Press, Princeton, 1982) 74–79, arguing that views that electoral corruption was widespread are wrong and have ‘little justification’. 13   C O’Leary, The Elimination of Corrupt Practices in British Elections 1868–1911 (Clarendon Press, Oxford, 1962) 28. 14   D Butler, ‘Elections: Legislation and Litigation’ in D Butler, V Bogdanor and R Summers (eds), The Law, Politics, and the Constitution (Oxford University Press, Oxford, 1999) 172. 15   Oxford Case (1924) 7 O’M & H 49 (agent overspending election expenses). 16   In re Bristol South East Election Petition [1964] 2 QB 257 (candidate ineligible for House of Commons as a peer). 17   Malone v Oaten (1997) (voting papers had not been stamped properly by polling station staff). This case, although well-known, has not been reported, as the petition did not receive a full hearing before the court decided that the procedural irregularities were such that it was best to call another election. See S Whetnall, ‘Three Counts and a Wedding: the Winchester Election Saga’ (1998) Arena 14. 11 12



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II.  Challenging Early Elections A.  County Court Elections Even though it was not until the early fourteenth century that the first individual challenge to an election was made, concerns over the integrity of elections and their outcomes were being addressed by the law on a systemic basis almost concurrently with the establishment of Parliament. Attention focused on the county court as the usual forum for elections.18 Writs for the election were issued under the seal of the sovereign from the office of Chancery to the county sheriffs, who were responsible for business in the county court.19 A useful indication of the form of the election comes from the record of returns by the sheriffs of the court for the election of 1290.20 The representatives of Lincoln were returned ‘in the full County Court by the assent of the whole city’; in Gloucestershire, the decision was made by ‘the whole community of the county’; and in Oxfordshire and Berkshire the decision as to their representatives was made ‘in the full county court of electors’.21 Elections were usually conducted by voice, and sometimes, where that was inconclusive, a show of hands.22 Despite this seeming uniformity, in actual fact, the conduct of the election itself varied according to local custom, and was heavily influenced by the patronage of the local aristocracy and landowners.23 The Freedom of Election Act 1275 illustrates the sort of issues that affected elections in medieval times: And because Elections ought to be free, the King commandeth upon great Forfeiture, that no man by force of Arms, nor by Malice, or Menacing, shall disturb any to make Free Election.24

In this era, elections were often chaotic and sometimes violent. Even if not, established families often felt they had a right to the seat, and would engage in various tactics to ensure it was kept in their hands. 18   Riess, above n 8, 40. Historians are agreed that shire elections were held in the county court. The situation for borough elections is less clear, although it seems that the return was sometimes made on the county court indenture (see below), leading to a conclusion that the actual election took place there as well. In other cases, the borough election would be held somewhere of the sheriff’s choosing within the borough: JC Wedgewood, History of Parliament 1439–1509 Register (HMSO, London, 1938) cviii–cx. 19   Riess, above n 8, 17. 20   Sporadic returns for an earlier election in 1254 are also available: see J Maddicott, ‘The Earliest Known Knights of the Shire’ (1999) 18 Parliamentary History 109. 21   H Cox, Antient Parliamentary Elections (Longmans, London, 1868) 90. See, for similar examples, Riess, above n 8, 51–52. 22   See JG Edwards, ‘The Emergence of Majority Rule in English Parliamentary Elections’ (1964) (5th series) Transactions of the Royal Historical Society 175, 189–91. 23   See MA Kishlansky, Parliamentary Selection: Social and Political Choice in Early Modern England (Cambridge University Press, Cambridge, 1986) 33–37, for examples of the range of procedures in use. See also Wedgewood, above n 18, lxxix–lxxx. 24   Freedom of Election Act 1275, 3 Ed I, c 5.

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Little happened on the legislative front for the next hundred years or so, but the fifteenth century saw several electoral statutes passed. Attempts to deal with corrupt outcomes began to focus on establishing procedures for elections, and in particular on the behaviour of county court sheriffs in conducting those elections – usually that they had been induced or threatened into returning the ‘wrong’ candidate.25 At other times, it was alleged that the sheriff had not followed the correct procedure – for example, in not taking a poll or preventing those eligible from voting.26 In 1405, the Election of the Knights of the Shires Act, prompted by ‘undue election of Knights . . . which sometimes be made of affection of Sheriffs and otherwise against the form of the writs directed to the Sheriff’,27 attempted to impose some order on the electoral process. It reiterated earlier directions that elections be made ‘freely and indifferently, notwithstanding any Request or Commandment to the contrary’, and sought to achieve this by requiring the return of the writ to be made in an indenture under the seals of the voters28 and returned accompanied by a set formula of words stating that the election had been made freely. Previously the returns of the writs were initially quite simple (and so open to abuse), with the names of the winners being appended to the writ with no other information supplied.29 Having omitted to provide any penalty for elections carried out contrary to the instructions of 1405, in 1409 the Justices of Assize Act30 endeavoured to rectify this by granting a power to the Justices to inquire into returns and require any sheriff who had made a return contrary to the 1405 Act to pay £100 to the monarch. This appears to be the first statute which grants jurisdiction, albeit limited, to the courts over election disputes. It should be noted that at this stage the King, in concert with the Lords or the judiciary, made the final assessment as to validity. But if the Electors of Knights of the Shires Act 1429 is any indication, the problems seen in elections continued, with elections being disrupted by ineligible voters and causing ‘Manslaughters, Riots, Batteries, and Divisions’.31 The Act is best known for its restriction of the franchise to those with 40-shilling freeholds, but it also gave the sheriff a corollary power to examine voters’ eligibility to participate. Should the sheriff return the writs in breach of the new voting restrictions, the justices of the assize courts were granted again the power to impose a fine of £100 and also further powers to imprison the sheriff for a year. Problems nevertheless continued. In 1444, the behaviour of sheriffs was targeted once more. This time concern was expressed that returns had not been made at all, or where they had been, that they were driven by sheriffs’ ‘singular Avail and   As, eg, in the de Cranthorn case, above nn 7 and 8.   See, eg, complaints about this in the Huntingdonshire county election of 1458, detailed in Cox, above n 21, 117. A facsimile of the petition can be found in Wedgewood, above n 18, cii. 27   7 Hen IV, c 15. 28   Given that only about half a dozen names were ever appended, Cox, above n 21, 125, considers that these were more likely to be a sample of the candidates’ more eminent supporters rather than the total electorate. Wedgewood, above n 18, ci, agrees. 29   Riess, above n 8, 53. 30   11 Hen IV, c 1. 31   Electors of Knights of the Shires Act 1429, 8 Hen VI, c 7. 25 26



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Lucre’, or that the writs had not returned men eligible to stand or the writs had simply been returned late. The Parliamentary Elections Act 144432 reiterated the proper process to be followed, and permitted any candidate aggrieved by the sheriff’s handling of the election to have a personal action in debt against the sheriff for £100.33 The mayors and bailiffs involved in administration of the elections were subject to a similar action for £40.

B.  Multiple and Concurrent Jurisdictions So far, attempts to provide for the legitimacy of elections had centred on granting jurisdiction to the common law courts to investigate and punish abuses of elections. However, it appears that complainants preferred to bring their cases in other forums for resolution.

The Sovereign The initial method of disputing an election result was to bring one’s complaint in the form of a petition directly to the monarch and his council of advisers.34 The right to petition was the only avenue available for those seeking a remedy, which they could not get in a court of law or otherwise. In 1295, Edward I made this explicit in relation to elections when he promulgated an order that complaints about elections should be brought to him and his advisers.35 This was the basis on which de Cranthorn brought his grievance, and it was still being employed in the following century, despite the creation of the common law jurisdiction in the intervening years. For example, in 1458, a petition was lodged in relation to an election in Huntingdonshire, where the supporters of one candidate were apparently prevented from voting by the sheriff. This petition was addressed to the King directly.36 In later centuries, as the personal power of the sovereign diminished, this approach persisted in the form of petitions to the Privy Council.37   23 Hen VI, c 14.   For an example of such a case, see Buckley v Thomas (1554) 1 Plowden 118; (1554) 75 ER 182, where Buckley claimed he had been elected but not returned. Buckley was successful and was awarded £100 plus £6 13s 4d in interest. Buckley also refers to the case of Corbet v Talbot (1485) Rast Ent 446a; Vet Lib Int (1545). Other known cases brought under this statute include Radclyffe v Wyngfeld (1483) CP 40/883; Belknappe v Barkeley (1512) CP 40/1001; Gunter v Welshe (1548) CP 40/1137; Godwyn v Sydnam (1549) CP 40/1143; Bodenham v Scudamore (1554) CP 40/1157; Lee v Mitton (1554) CP 40/1159; and Channon v Moghan (1555) CP 40/1161. 34   Eg, in 1384 Baron Camoyes was declared by the King and his Council to be ineligible for election to the Commons, on the grounds that he was a peer. A new writ was directed to be issued: see Glanville, above n 8, xvi–xvii. This is an unusual example of an election being challenged on the basis of candidate eligibility. Most elections, as history shows, were disputed because of procedural irregularities in the voting or the return. 35   Riess, above n 8, 4. 36   See Wedgewood, above n 18, cii, for the text of the petition, which begins, ‘To the King our gracious earthly sovereign . . .’ and asks for his assistance in rectifying the outcome of the flawed election. 37   See D Hirst, ‘Elections and the Privileges of the House of Commons in the early Seventeenth Century: Confrontation or Compromise?’ (1975) XVIII Historical Journal 851, 860–61, for details of cases brought before the Privy Council in the early 1600s. 32 33

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Chancery Some complainants preferred to bring their cases to the court of Chancery. There was a certain logic to this, as the Clerk of the Crown in Chancery was the officer who issued the writs and to whom they were returned.38 It was a small step from the administrative functions of Chancery to calling in aid its judicial functions. The first use of Chancery to challenge a return seems to have been in 1450,39 predating the use of the common law courts. The petition appeared to take the form of the writ of scire facias, questioning the returned member’s authority to take his seat.40

Star Chamber By the time of Elizabeth I, jurisdiction over elections was also exercised by the Star Chamber. The Star Chamber had become more appealing than the common law courts due to the flexibility of the remedies it could provide – the £100 action against the sheriff proving inadequate due to inflation, and no real deterrent due to the willingness of candidates to indemnify the sheriff against a £100 fine or debt claim.41 The Star Chamber also had certain procedural advantages over the common law courts’ limited focus on the sheriff, allowing anyone suspected of wrongfully influencing an election to be sued by the aggrieved candidate.42 The Star Chamber also appealed due to its role in hearing criminal matters. Election disputes often centred on allegations of criminal behaviour, either by or directed at the sheriff, such as the case arising out of the Somerset election in 1628, where Sir John Stawell was brought before the court ‘for assaulting and giving ill language to the Sheriff’.43 The first election case to come before the Star Chamber was in 1559. In AttorneyGeneral v Bronkers,44 the sheriff Bronkers was accused of deliberately reversing the outcome of a poll. During the case it transpired that he had not taken the oath that permitted him to officiate at the election. For that offence, Bronkers was fined £100 and sentenced to five weeks’ imprisonment. The Star Chamber then levied a further fine of £100 and sentenced him to a year’s imprisonment for breaching the Electors of Knights of the Shires Act 1429.45 The under-sheriff, who, it transpired,

  7 Hen IV.   O’Leary, above n 13, 7. 40   Cox, above n 21, 162, says that petitions were dealt with by the writ of quo warranto, a writ analogous to the scire facias writ, but issued instead in the common law courts. 41   JE Neale, ‘Three Elizabethan Elections’ (1931) 46 English Historical Review 209. 42   Ibid, 210. 43   Hirst, above n 37, 858, fn 33. 44   Bronker’s Case, reported in J Valliant, Dyer’s English King’s Bench Reports (1688) (London, Butterworth, 1794) 168b. 45  Neale, above n 6, 98, refers to the sheriff being fined £200 and sentenced to a term of one year for the one offence. However, it is clear from the judgment that the Star Chamber levied punishment for two separate offences and also punished the under-sheriff, a fact Neale omits to mention. 38 39



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was actually responsible for the return, was fined 20 marks and sentenced to a fortnight’s imprisonment. Other cases followed.46 However, notwithstanding these advantages, the Star Chamber did not prove to be a particularly efficient forum for resolving election disputes – it generally was not able to unseat a member,47 and it was a long and expensive process.48 It appears that Star Chamber election cases were more about reasserting the dignity and importance of wealthy families or settling old scores than necessarily policing the integrity of elections.49 And its jurisdiction did not last long. It was brought to a definite end with the abolition of the Star Chamber in 1641, but its popularity had been waning for some years before then, having been taken over by the House of Commons’ increasingly strong claim to be the sole determiner of election disputes.

The House of Commons Although it took less than a century for the House of Commons to become the predominant decider of elections, in the Elizabethan era, perhaps simply because there were so many alternatives available, it was apparently rather indecisive as to its role in this regard.50 For example, in 1597, the House proclaimed that dis­ appointed candidates in the Weymouth and Melcombe Regis election should ‘take their remedy against the sheriffs’, which the historian Derek Hirst interprets as meaning in Star Chamber, not in the House itself.51 But in the previous decade the House had come to the opposite conclusion. The Norfolk county election in 1586 was not straightforward.52 Thomas Farmer and Christopher Heydon stood against each other; Farmer was the victor. But Heydon complained to the Privy Council that the election was procedurally void, since the sheriff had failed to give the usual formal warning of an election (the writ having arrived on the same day as it was required to be executed). Despite 3,000 having been present at the election, the Privy Council ordered a new writ be issued and the election held again. There was also a veiled warning not to re-elect Farmer, the writ directing the election of ‘two others’. At the second election, Heydon won. 46   See Neale, above n 41, for reports of two cases in 1588 and another in 1601. Three other cases are discussed in JE Neale ‘More Elizabethan Elections’ (1946) 61 English Historical Review 18. Neale, above n 6, reports on another case from Chichester in 1586 (at 265–71) and one from Gloucester in 1597 (at 279–80). 47   Neale, above n 6, 255. But see Hirst, above n 37, 858, who makes the point that this did not appear to be the expectation of plaintiffs before the Star Chamber, who did not request it as a remedy. This supports the view of Kishlansky, below n 49, as to the real motivation of the plaintiffs. In addition, given that Star Chamber cases often lasted longer than the Parliament for the seat in dispute, it is unlikely that any verdict of unseating could have been carried out. 48   Neale, above n 6, 255. Some Star Chamber cases took years to resolve. 49   Kishlansky, above n 23, 17–18, observes that in the case of Star Chamber litigation, ‘What was at issue was not a seat in Parliament but an attack upon personal wealth and magisterial authority. Cost, trouble, legal sanction, and loss of prestige were worthy punishments.’ 50   O’Leary, above n 13, 7. 51   Hirst, above n 37, 856. 52   This account is largely drawn from JE Neale, Elizabeth I and her Parliaments 1584–1601 (Jonathan Cape, London, 1957) 184–87.

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Farmer was not prepared to accept this, and thus two writs were returned to Chancery, one electing Heydon, the other Farmer. Farmer complained to the House of Commons that he had been rightly elected. The question thus arose whether it was Chancery or the House of Commons which had the power to decide the dispute. The Queen sent a message to the Commons, describing their behaviour as ‘impertinent’ and reminding them that it was a matter ‘only belonging to the charge and office of the Lord Chancellor’ – his office issued the writs, and there they should be determined. She ordered the Lord Chancellor to discuss the election with his judges and decide the outcome according to ‘justice and right’. The judges quickly came to the conclusion that the first election ought to stand. Nevertheless, the Commons set up its own committee to review the two Norfolk elections. In declaring Farmer’s election valid, the committee was not only concerned about the integrity of Chancery in this specific instance, it also cast aspersions generally on the competence of the judiciary to decide such an issue. In its report on the election, the committee moved that Farmer be admitted to the House ‘only by the censure of this House, and not as allowed of by the said Lord Chancellor’. This met with the approval of the entire House, which ordered the report to be recorded in the Commons Journal. Why, then, did the House decline to intervene in another disputed election only a few years later? Clearly, the question of jurisdiction was in a state of flux.

III.  The Struggle Between the Courts and Parliament for Control Over Elections The conflict between the judiciary and Parliament over the right to decide controverted elections, as illustrated by the Norfolk case (above), arose because each had at some point been allocated, or had assumed, the right to investigate and decide the outcome of a disputed election. In the case of the courts, this came from the different statutes involving them in various aspects of the administration of elections. In the case of Parliament, it came from the privilege of regulating its own composition.

A.  The Composition Privilege The House of Commons’ privilege of regulating its own composition has its genesis in a 1514 decision of Henry VIII to transfer power to the Speaker to allow members to leave before the end of the parliamentary session.53 Out of this grew a claim to decide the outcome of controverted elections, the Commons being able   Attendance in Parliament Act 1514, 6 Hen VIII, c 16.

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not only to administer and judge its members, but also to decide the threshold question of who should be admitted to membership.54

The Tudor Period: the Emergence of the Composition Privilege The first exercise of this privilege appears to have been in 1559 when John Smith, having been elected, was then charged by another member with being an outlaw. It was said that he had deceived various merchants in London to the sum of £300.55 An investigation by the House found this to be proven, but the House by a small margin permitted Smith to remain as a member.56 A major development occurred in 1563, when an audit of the House records revealed that a number of members present in the House could not be found on the Clerk of Chancery’s list of those members returned. Rather than referring these cases to the courts, the House itself decided they could take their seats, so long as those members furnished independent legal proof of their claimed right.57 In 1571 a challenge was made to the election of several new members and the House decided that their warrants were sufficient proof of their election (and therefore presumably need not be referred to a court, in particular Chancery).58 In an exercise of the other side of the composition privilege, the House also in 1571 expelled one Thomas Long for having obtained his election through bribery.59 In 1580, we find the first direct statement that decisions over the issuing of writs for election were the exclusive preserve of the Commons.60 The House of Commons continued to deal with questions about members’ eligibility during the reign of Elizabeth I, and became more confident in its right and competence to do so. The case of the double Norfolk election in 1586 makes the point well. During this period however, claims over controverted elections continued to be brought before the courts and the Privy Council as well.61 This period of mixed jurisdiction was soon to be challenged.

The Post-Tudor Period: The Establishment of Privilege Goodwin v Fortescue After the end of the Tudor period, the House of Commons’ privilege of regulating its own composition began to be asserted more even strongly. The question was 54   See GR Elton, The Parliament of England 1559–1581 (Cambridge University Press, Cambridge, 1986) 338–41, for a discussion of the evolution of this privilege. 55   Hatsell’s Precedents I (Hansard, London, 1818) 80–81. Similar cases were recorded in 1575 (Commons Journals I, 104) and in 1580 (Commons Journals I, 122). 56   Keeler, above n 10, 28. 57   Commons Journals I, 63. 58   Keeler, above n 10, 28. 59   Ibid. 60   Glanville, above n 8, xxvii: ‘It was moved, that it was not meet or convenient to choose a new Speaker by persons that were not of the House’ (18 January 1580); on 18 March 1580, the Commons resolved that ‘there do not, at any time, any Writ go out for the choosing or returning of any Knight, Citizen, Burgess, or Baron, without the Warrant of this House first directed to the Clerk of the Crown, according to the ancient jurisdiction and authority of this House, in that behalf accustomed and used’ (ibid, xlii). 61   Hirst, above n 37, 855–61.

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now not so much whether the Commons had the right to adjudge on electoral matters, but whether it alone had the right to do so. The basis for this claim appears to have been based partly on the view that Parliament was not only a court62 but the highest court in the land,63 and partly through a desire to keep the House of Lords from having jurisdiction over the membership of the Commons.64 Goodwin v Fortescue65 provided an opportunity for determining the question of appropriate control over disputed elections. John Fortescue had lost a county election for the first knight’s place to Sir Francis Goodwin. Goodwin’s election was then voided by the sheriff on the basis that he was an outlaw and, as such, disqualified. After a second election, Fortescue was proclaimed the victor.66 The second knight elected was William Fleetwood. Fleetwood complained to the House of Commons about Fortescue’s election. The House investigated, pronounced that Goodwin’s return was valid after all, and passed a resolution that he should be admitted as a member. The basis for the decision was evidence produced to the House that proceedings for outlawry had been initiated against Goodwin for non-payment of debt, but he had satisfied the debt and the outlawry process was never completed. The House also noted that outlaws had been admitted to membership of the Commons, so outlawry itself could not been seen as a definitive disqualification. The judiciary’s argument was that outlaws should nonetheless be disqualified, that the sheriff’s return on the point was conclusive of the matter and that, in any case, the Commons did not have jurisdiction over the matter. The House defended its views at a conference with the King and the judiciary, but no decision was made. The King then ordered another meeting, where the House put forward its views again, this time in writing. Again, neither party would budge. Finally, James I proposed a compromise: both men were to stand down and a third election was held. Although the case actually turned on a technical question of eligibility (ie whether Goodwin was an outlaw or not and, if so, whether he was ineligible to stand), it has long been interpreted as part of a larger question, ie which branch of government had the right to determine the membership of Parliament, and how far that right extended. It was at the first meeting with King James that the extent of Parliament’s composition privilege was put in issue. 62   See, in particular, Glanville, above n 8, 118–19, reporting the case of a disputed election for the borough of Monmouth: ‘[T]he House of Commons . . . [is] a council of state and a court of equity, touching things appertaining to their cognizance, as well as a court of law, and they may of themselves question any election or return, although no party grieved very do complain.’ For other examples, see C Wittke, The History of English Parliamentary Privilege (Da Capo Press, New York, 1970) 60. 63   CH McIlwain, The High Court of Parliament and its Supremacy (Yale University Press, New Haven, Conn, 1910, rep 2004). 64   Wittke, above n 62, 56. 65   (1604) St Tr 91. 66   It is worth noting that Fortescue did not actually fail to be elected in the first election; he was simply unsuccessful for the first of the two seats available, which was the more prestigious: RC Munden, ‘The Defeat of Sir John Fortescue: Court versus County at the Hustings?’ (1978) 93 English Historical Review 811, 812.



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Goodwin v Fortescue is generally regarded as a decisive victory for the Commons in wresting sole control over disputed elections to itself. However, a period of concomitant jurisdiction persisted for some time afterwards.67 During this time, the House of Commons sometimes objected to other branches of government deciding election petitions, sometimes successfully, sometimes not.68 Nonetheless, during the 1600s, the Commons made increasingly bolder statements asserting its sole right to judge elections, including an ability to investigate matters even where no complaint had been brought before it.69 Barnardiston v Soame The question was finally determined in the House’s favour in Barnardiston v Soame.70 In 1674, Barnardiston and Huntingtower were candidates for a seat in the county of Suffolk. In an election described as ‘a riotous affair’,71 Barnardiston won by a clear majority but Huntingtower was returned instead, since the sheriff was unsure whether all of those who voted for Barnardiston were actually qualified voters. To cover both outcomes, Barnardiston was then returned as well.72 The returns were brought before the House of Commons, which appointed an election committee to hear the case, recognised that Barnardiston had been elected and ordered that the sheriff Soame be committed. Having been judged the rightful member by the Commons, Barnardiston sued Soame for making a false double return. He was successful in the King’s Bench courts and obtained damages of £800. A writ of error was then brought by Soame in 1676 in the Exchequer Chamber,73 seeking to reverse the King’s Bench judgment. The Exchequer Chamber agreed with Soame’s arguments, opining that the Commons had sole jurisdiction over election matters and that no action lay against an official for a double return. Some 13 years later, Barnardiston attempted to have the House of Lords reverse the Exchequer judgment but failed.74 Chief Justice North not only declared that the King’s Bench judgment was to have ‘no authority’,75 he also said that ‘the parliament is the only proper judicature to determine the right of election [and] . . .   Hirst, above n 37, 851.   Ibid, 856. Hirst notes that the Commons appears to have been more concerned with Chancery’s jurisdiction than that of Star Chamber. This view is illustrated by the declarations made by the House in the Norfolk election case of 1586, and the pronouncements by Chief Justice North in Barnardiston v Soame, below. 69   See the Monmouth case, reported in Glanville, above n 8, 119. 70   (1674) Pollex 470; 86 ER 615. 71   RL Sharwood, ‘Banardiston v Soame: a Restoration Drama’ (1964) 4 Melbourne University Law Review 502. 72  Sharwood, ibid at 507, notes that Soame was caught in a fine dilemma: he was related to the Puritan Barnardiston, but appeared to prefer the politics of the Royalist Huntingtower. 73   The Exchequer Chamber was established in 1585 as an appellate court from the King’s Bench: ibid, 520. 74   (1689) St Tr 1092 (HL). Immediately following the Exchequer judgment, Barnardiston attempted to have the House of Commons vote against the decision, but the House declined to intervene: Sharwood, above n 71, 531–32. 75   (1689) St Tr 1092 (HL), 1094. 67 68

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the parliament ought to have more reverence than the court of Chancery’.76 He concluded this show of judicial deference by noting, rather surprisingly given past practice, that any jurisdiction that judges had employed over electoral contests was based solely on statutory authority.77 The House of Commons then passed a resolution in 1689 that ‘after a return is made into the crown office of members to serve in parliament, the same shall not be altered by the sheriff or clerk of the crown or any other but the House’.78 In 1695 the Parliamentary Elections (Returns) Act settled any doubts that might still remain over the question of jurisdiction in Parliament’s favour by referring to the sole right of Parliament to decide returns, and providing that any determination by another body would be deemed to be a false return, upon which the impugned candidate could sue.79 The judiciary’s exclusion was complete by the 1702 case Prideaux v Morrice, where a unanimous four-judge bench stated that ‘the judging of the right of elections belongs to the Parliament, that is, the House of Commons; and that is the proper jurisdiction for determining such matters’.80 This state of affairs was to last until the sea-change of reforms introduced by the Parliamentary Elections Act 1868.

IV.  The Exclusive Jurisdiction of the House of Commons At the same time as it was asserting its sole right over the determination of its membership, the House of Commons worked its way through the question of how it would exercise its composition privilege. The options, all of which were employed at different times, were an ad hoc committee, a specialist committee, the committee of the whole House and the House itself.

A.  Election Committees At first, electoral matters considered by the House were dealt with either by the House as a whole or by ad hoc committees.81 Then, partly in line with the view that controverted elections were part of the composition privilege, and partly because of a growing need to deal with questions about members’ elections, in 1593 the House of Commons ordered that a single committee be established to consider members’ returns and privileges.82   Ibid, 1098.   Ibid, 1109. 78   Cherry, above n 12, 123. 79   Parliamentary Elections (Returns) Act 1695, s 1. 80   7 Mod 14; (1702) 87 ER 1065. 81   Keeler, above n 10, 37. 82   Ibid, 26. 76 77



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The Committee for Privileges and Returns appeared to operate in the manner of a court: upon receipt of a petition challenging a return, it held hearings, witnesses appeared before it and it considered precedent before making a recommendation to the whole House. The Committee was served by more experienced members who had sat on the Committee in previous Parliaments.83 Lawyers and those holding high posts in government comprised a fair number of the Committee’s members.84 The Committee also contributed to the clarification of election procedures, making decisions on matters such as whether a poll was required for an election to be valid.85 Unfortunately, the work of the Privileges and Returns Committee was undone by 1672, when the procedure reverted back to a committee of the whole House, and then, from 1708, plaintiffs began demanding a trial at the bar of the House.86 This change in procedure coincided with what has been described as ‘the most corrupt period of English politics’.87 Treating, bribery and intimidation were commonplace.88 Seats which had previously been won by violence were now more likely secured with money.89 Furthermore, it seems that members of the House, having secured their place by corrupt means, were not best placed to act as an impartial tribunal on the elections of others. Anson comments on this development that: it would have been difficult to find a worse tribunal. As the trial was before the whole House, no single member felt any responsibility. The tribunal was a large and fluctuating body, wanting alike in the training and the inclination to act judicially.90

B.  The Grenville Act In response to the increasing abuse of privilege, in 1770 the Parliamentary Elections Act (commonly known as the Grenville Act) changed the practice of whole-House decision back to that of the Privileges Committee. The Act provided that a committee selected by lot,91 and then reduced to 13 by the petitioner and respondent 83   MF Keeler, ‘The Committee for Privileges of the House of Commons 1604–1610 and 1614’ (1994) 13(2) Parliamentary History 147, 153. 84   Ibid. 85  (1623) Commons Journal 677–78, where an election was deemed void because a poll was twice demanded but not taken; (1623) Commons Journal 724, where an election decided by voice was found void for uncertainty and a poll required. 86   WR Anson, The Law and Custom of the Constitution: vol 1 Parliament, 5th edn (Clarendon Press, Oxford, 1922) 180. 87   K Feiling, A history of the Tory party 1640–1714 (Clarendon Press, Oxford, 1924) 275. Kishlansky, above n 23, 108–21, attributes this to the rise in significance of the Parliament during and after the English Civil War. It should be noted, however, that this description appears to have been given to almost every era of elections until the anti-corruption reforms of the 1860s bedded in. 88   See Cherry, above n 12, for numerous examples of elections affected by corruption during this period. 89   Although it is fair to note that violence continued to be a feature of many elections during the 1670s and 1680s: see Kishlansky, above n 23, 198–99. 90   Cherry, above n 12, passim. 91   Parliamentary Elections Act 1770, s 5.

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(the member who had been returned), would hear election petitions.92 To increase the chances of an impartial hearing, members who were challenging an election, or whose election had been itself challenged, and any member who had voted in the particular challenged election were excused.93 The Committee had the power to summon witnesses, papers and records, and examine witnesses upon oath.94 A Chair was elected and had the casting vote.95 The Committee had the power to decide which of the parties was elected, or whether the election itself was void.96 This decision could not be appealed to the whole House.97 The House as a whole did retain some residual jurisdiction: it could give its opinion on any resolution made by the Committee which was outside its remit to decide on the outcome of the election.98 But the Act was ultimately unsuccessful in achieving its aims. The process continued to be marred by partisanship and allegations of corruption, and marked by accusations that the House’s members ignored irregularities and illegalities in order to favour their own side in deciding the outcome.99

V.  The Victorian Reforms A.  The Early Decades of Change The end of the 1830s heralded a period of high activity in electoral petitions reform, centred on attempts either to replace completely or to address the deficiencies of the House of Commons system from within. In 1837 a bill to replace the Grenville system was unsuccessfully introduced.100 This proposal suggested that a tribunal of experienced barristers, appointed for life, be allocated responsibility for deciding petitions.101 This was followed by a motion along similar lines in 1839.102 The Government swiftly responded with the Election Petitions Act 1839.103 This was a compromise measure. It acknowledged the continuing   Ibid, s 13.   Ibid, s 6.   Ibid, s 18. 95   Ibid, s 17. 96   Ibid, s 18. 97   Ibid. 98   Ibid, s 25. 99   Grego, above n 12, 66. 100   O’Leary, above n 13, 20. 101   This appears to have been inspired by the system applied to Ireland by the Controverted Elections Act, 42 Geo III, c 106. In 1802, legislation was enacted providing that in cases of controverted elections in Ireland, a panel of barristers of not less than six years’ standing could be appointed by the House as Commissioners to hear the petition (s 25). (This was justified on the basis of avoiding having to send witnesses to Westminster.) Their report would be sent to the Election Committee, which would not look beyond the report in making its decision (s 26). 102   O’Leary, above n 13, 20. 103   2 & 3 Vict, c 38. The Election Petitions Act was re-enacted with minor amendments as the Controverted Elections Act 1841, 4 & 5 Vict, c 58. All following references are to the 1841 statute. 92 93 94



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problem of partisan decision-making over petitions, but kept the power of deciding the House’s composition with the House. The Act abolished the system of Grenville Committees, replacing them with a ‘General Committee of Elections’104 of six members appointed by the Speaker at the beginning of each parliamentary session.105 A separate panel of members who could chair the Committee was drawn up.106 Although the Election Committee retained many of the same procedures and powers of the Grenville Committees, the reforms were designed to make them stricter in their interpretations and more impartial in their deliberations. The power to state a question for the House’s view was removed.107 An Election Committee was also given explicit powers to penalise witnesses for misconduct or giving false evidence (including a power of 24-hour committal),108 and those deliberately giving false evidence were liable to conviction for perjury.109 The Committee also had the power to report on frivolous and vexatious petitions and to award costs.110 In 1842, the Election Committee was given further powers to nominate an agent to inquire into the prevalence of bribery at an election, should this have become apparent during the petition hearing.111 Petitions were also now permitted to make general allegations of bribery as opposed to an undue election.112 In 1852 the agent system was expanded, when the Election Commissioners Act provided that upon a joint address from the Commons and the Lords, a Royal Commission could be sent out to investigate and report back to Parliament if the Election Committee thought that evidence of widespread corruption had come to light in the course of hearing a petition.113 Commissioners had to be barristers of at least seven years’ standing, could not be MPs114 and had extensive inquisitorial powers.115 These reforms enabled matters not strictly in issue in the petition itself to be investigated and reported on to the House. Despite these changes in procedure, problems with corrupt practices persisted. A radical solution was required.

B.  The 1860s: from the House to the Courts The defining moment in controverted elections law came in 1868 when the Election Petitions and Corrupt Practices Act was enacted, transferring jurisdiction   Controverted Elections Act 1841, s 30.   Ibid, s 22. 106   Ibid, s 43. 107   Ibid, s 78. 108   Ibid, s 74. 109   Ibid, s 76. 110   Ibid, s 84. 111   Bribery at Elections Act 1842, 5 & 6 Vict, c 102, s 2. 112   Ibid, s 4. 113   Election Commissioners Act 1852, 15 & 16 Vict, c 57, s 1. 114   Ibid. 115   Ibid, s 7. 104 105

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from the House to the judiciary. For such a major change, departing from the previous 200 years of practice in settling elections, and depriving the House of Commons of one of its hard-won and jealously-guarded privileges, the legislation had a remarkably short and uneventful passage through the House. In 1866 the Government attempted to deal with electioneering problems via the Reform Bill. However, objections were raised that matters of electoral integrity ought to be dealt with on a non-partisan basis. Thus in 1867 the Government proposed bringing in a new system for petitions.116 This was to be dealt with by means of a dedicated Corrupt Practices at Elections Bill. The proposal was for a modified version of the then current system, whereby petitions would be heard by two assessors, from which there would be an appeal to the House, which might itself choose to devolve its power to a select committee. The Bill emerged from the select committee much altered. The hybrid scheme was rejected. But rather than seeking to retain power over controverted elections within the House, in a surprising move, jurisdiction was transferred outright to the judiciary. Instead of a panel of lawyers, petitions would be heard by a judge of the Queen’s Bench. Appeals on a point of law would be heard by a new three-member Court of Election Appeals.117 At the conclusion of the hearing, the judges would certify their determination as to who was elected, or whether the entire election was void, to the Speaker. That determination was to be final. At the same time, the penalties for corruption were increased, so that, for example, a candidate would be disqualified for life upon his second conviction. The Government accepted the recommendations, introducing a bill to bring them into effect in early 1868. The significance of this change went virtually unnoticed by the House, preoccupied as it was with the Reform Bill.118 Not so the judges. They were initially very reluctant to accept this enlargement of their jurisdiction. In a letter to the Lord Chancellor, the Lord Chief Justice objected in the strongest terms that judges would be involved in matters of partisan debate, that petitions were beyond the scope of their usual judicial duties, and, lastly, pleaded overwork as a reason not to transfer petitions hearings to the courts.119 As a mollifying response, Disraeli proposed the creation of a specialist Parliamentary Elections Court, lower in status than the High Court but with final rights over petitions.120 This met with little favour in the House, which expressed the view that if jurisdiction was to be transferred, it should not be to a body lower in status than the House.121 In the face of widespread parliamentary opposition, the Bill was changed again at the second reading to provide for the appointment of three additional judges to the courts of Common Pleas, Exchequer or Queen’s Bench, and that from each court the judiciary would elect one of their number to   O’Leary, above n 13, 32–33.   Ibid, 35.   Ibid, 36. 119   Ibid, 37. 120   Ibid. 121   Ibid, 37–38. 116 117 118



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hear election petitions, each judge so elected receiving an extra £500 per year.122 No objections were heard from the judiciary, and the bill became the Election Petitions and Corrupt Practices Act 1868 (known thereafter as the Parliamentary Elections Act).123 With its enactment, Parliament’s privilege to regulate its own composition by deciding disputed elections was thereby extinguished. A new era in controverted elections had begun.

C.  Reform after 1868 The first petition under the new system was heard at Wexford in 1869.124 Within the next five years a significant fall in petitions was experienced.125 At the same time, judges revealed themselves able to unearth more evidence of corruption than had been possible for the House’s Committees.126 In 1875 a select committee was established to inquire into the impact of the transfer of jurisdiction. Judges, lawyers and election agents declared themselves well satisfied with the new system.127 The committee’s suggestions were therefore focused on strengthening the new system. It recommended that two judges hear the petition, not one; that no one be deprived of his seat unless both judges agreed; that a representative of the Attorney-General should attend the hearing so that he might bring prosecutions where corrupt practices had been alleged in the petition; and that disqualified candidates would not lose the votes cast for them unless that disqualification was widely known.128 The recommendations relating to a two-judge panel and the need for their decision to unseat a member to be unanimous were effected by the Parliamentary Elections and Corrupt Practices Act 1879. Attempts were made to revert to a onejudge system, but the two-judge panel survived and was retained in the Corrupt and Illegal Practices Prevention Act 1883. A review of this legislation took place in 1897, but the minor changes recommended in relation to reducing security for costs and an increase in judges to hear petitions were not acted upon.129 After a heady period of change, by the end of the nineteenth century controverted elections law was largely regarded as settled. Indeed, Butler goes so far as to   Ibid, 41.   31 & 32 Vict, c 125.   Section 2 of the Parliamentary Elections Act 1868 applied the Act to Irish elections. Petitions were heard in the court of Common Pleas in Dublin. See O’Leary, above n 13, 49–56 for the details of each of the 34 English borough petitions brought after the 1868 election. See also ibid, 92–106 for petitions relating to the election of 1874, and 129–54 for those following the election of 1880. 125   Some of this may have been attributable to the expense of bringing a petition: O’Leary, above n 13, 92. 126   Ibid, 56. 127   Ibid, 107. The judges in particular denied that their reputation had been adversely affected, as the Lord Chief Justice had so direly predicted, and moreover reported that election petitions, involving as they did criminal offences and suits for ejectment, had proved to be fairly familiar ground: ibid. 128   Ibid,107–08. 129   Ibid, 181. 122 123 124

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say that since the early twentieth century, ‘electoral law has stood almost still’.130 The next section considers whether this position can be maintained with respect to petitions, examining whether changed circumstances or new legal developments require changes in the judicial model of deciding controverted elections.

VI.  Modern Period A.  Are Petitions Still Relevant? After the First World War, the twentieth century saw very few election petitions; so few that it could have confidently been said that an election petition was a rare event, to be seen perhaps once every decade or so.131 It was assumed that the problem of corruption, which had so plagued elections and the means of deciding them, had been eradicated.132 This consensus no longer holds. It was strongly shaken by the result of election petitions relating to two local council wards in Birmingham in 2005 where widespread fraud was uncovered.133 In recent years there has been an upswing in challenges to elections, both by way of petitions and through other legal activity directed at electoral misconduct. Most of these have been at the local level, but problems exist at the national level as well. In April 2008 the Joseph Rowntree Reform Trust published the first comprehensive set of statistics on election offences and petitions.134 This extremely valuable work brought together not only records of petitions, but also statistics on offences prosecuted outside the petitions framework. An interesting trend identified by the report was the prosecution of electoral misconduct outside of electoral legislation, for example in cases of forgery and fraud.135 It should be noted, however, that convictions for electoral offences rarely void the election result, unless the convicted person is also the one elected.136   Butler, above n 14, 173.   S Wilks-Heeg, ‘Purity of Elections in the UK’ (Joseph Rowntree Reform Trust, York, 2008) 73–74. See also D Butler, ‘Electoral Reform’ (2004) 57(4) Parliamentary Affairs 734, reporting that between 1870 and 1914 there were 151 petitions from which 69 MPs were unseated, compared with the period 1918–2004 which saw seven successful petitions. 132   See Butler, above n 14, 173, writing in 1999 that only two parliamentary petitions on the grounds of malpractice had succeeded since 1918. 133   The case generated much media coverage and was a catalyst for the enactment of the Electoral Administration Act 2006. For a general discussion of the case, see J Stewart, ‘A Banana Republic? The Investigation into Electoral Fraud by the Birmingham Election Court’ (2006) 59(4) Parliamentary Affairs 654. 134   Wilks-Heeg, above n 131, 73–74. Other sources of information on election petitions and prosecutions for electoral offences include: H Harman MP, Hansard HC, 24 May 2005, col 87W (election petitions between 1997-2004); Parliament and Constitution Centre ‘Election Petitions’ (House of Commons, London, 2001); B Prentice MP, Hansard HC, 22 March 2007, col 1108W (election petitions between 2000–07); and I White, ‘Postal Voting and Electoral Fraud’ (House of Commons, London, 11 January 2007) 14–23 (offences between 2004–07). 135   Wilks-Heeg, above n 131, 31. 136   See the Fiona Jones MP case, discussed in section VI.C. below. 130 131



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From 1997 to 2007, 57 election petitions were submitted, of which 50 were at the local level and seven at the parliamentary level. Between 2000 and 2007, the Crown Prosecution Service opened 383 files on election offences, from which 24 successful prosecutions resulted, and from 2000 to 2004, the Home Office recorded that 12 people were convicted of offences under the Representation of the People Act 1983. The Rowntree Report notes that every police force in England has had to look into allegations of electoral malpractice, and that electoral fraud convictions have been secured against members of each of the three major parties as well as smaller ones.137 Modern corruption, like its historical counterpart, appears to know no geographical or political boundaries. In part, and most recently, this seems linked to an increase in fraudulent activity on the part of the candidates and party officials, who have stuffed ballot boxes, invented imaginary voters and claimed the identities of others, prompting the Special Rapporteurs assigned by the Council of Europe to look into British electoral frailties to warn in early 2008 that: It is clear that the electoral system in Great Britain is open to electoral fraud. This vulnerability is mainly the result of the, rather arcane, system of voter registration without personal identifiers. . . . These vulnerabilities could easily affect the overall democratic nature of future elections in Great Britain.138

With electoral legislation reforms which might reduce fraud not yet in force,139 and those introduced by the Electoral Administration Act 2006 described by the Rowntree Report as ‘having been proved deficient in combating electoral fraud’,140 it is unlikely that problems with elections will fade away in the future.

B.  Election Petitions The current provisions dealing with parliamentary election petitions are found in the Representation of the People Act 1983. They are hardly changed from the system introduced in 1868 and modified in 1879 and 1883.

The Grounds for a Petition The 1983 Act provides that no election or return may be questioned other than by an election petition which complains of an ‘undue election or undue return’.141   Wilks-Heeg, above n 131, 9 (with the exception of the City of London police).   H Daubler-Gmelin and U Gacek, ‘Application to initiate a monitoring procedure to investigate electoral fraud in the United Kingdom’ (Council of Europe, Strasbourg, 22 January 2008) para 3. 139   The Rowntree Report quotes the former Chair of the Committee on Standards in Public Life as saying that the [Labour] Government appeared to be ‘in denial’ about these concerns: Wilks-Heeg, above n 131, 12. Although the Government at a late stage in the debate made provision in the Political Parties and Elections Act 2000 for individual registration (ss 30 and 33), this will not be in place for parliamentary elections before 2015. 140   Ibid, 5. See also Wilks-Heeg, ibid, at 11, concluding that the 2006 Act ‘fall[s] short of what is required to ensure that electoral malpractice is kept to an absolute minimum’. 141   Representation of the People Act 1983, s 120(1). 137 138

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These terms are not defined, but in brief, a petition may be brought on three broad grounds. These are: a) questions over the eligibility of the successful candidate to stand for election in the first place; b) allegations that electoral offences (those specified as corrupt or illegal practices in the 1983 Act) were committed during the campaign; and c) claims that administrative irregularities took place during the voting or votecounting. The essential concern here is that the wrong person was elected – wrong because of his personal or professional qualities; wrong because the position was obtained by corruption; or wrong because of officials’ malpractice. Related to these claims is the ability to petition for a recount of the vote, on the basis that the successful candidate was not in fact elected by a majority of lawful votes.142 A petition may also be based on a returning officer’s decision to accept a nomination paper.

The Parties to a Petition A petition may be lodged by a voter or by someone having the right to vote; by an unsuccessful candidate; or by a person claiming to have been a candidate.143 There is no capacity for a political party to petition the outcome, nor for any other body concerned with the integrity of elections to do so, such as the Electoral Commission. The respondent to the petition is the successful candidate, or, in the case of complaints about the administration of the election, the returning officer.144 In Absalom v Gillett, the Court expressed the view that even in cases where only the returning officer’s conduct is complained of, the successful candidate should still be made a respondent,145 while in Hussein v Khan, the Court considered that as a general rule, returning officers should be represented in any petition.146 The Director of Public Prosecutions is entitled to attend all petition trials, and may be required to do so by the Court.147

The Election Court Petitions are heard by the Election Court.148 This is a bench of two High Court judges, assigned by rota to hear petitions.149 The Election Court has the powers, the authority and jurisdiction of a High Court judge,150 and the hearing proceeds 142   The implication being that some of those votes may have been secured by corrupt means, or cast by those ineligible to vote. 143   Representation of the People Act 1983, s 121(1). 144   Ibid, s 121(2). 145   [1995] 1 WLR 128, 138. 146   [2006] EWHC 262. 147   Representation of the People Act 1983, s 181(2). 148   Ibid, s 123(1). 149   Ibid. 150   Ibid, s 123(2).



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according to the ordinary rules of the High Court, save that election petitions are heard without a jury.151 When the petition alleges that corrupt or illegal practices have taken place, the Election Court has inquisitorial powers as well as judicial ones. It is to investigate and conclude whether any such practices have been committed by the candidate or with her consent, or by anyone else, or whether they have extensively prevailed in the election.152 In a nod to the previous holders of the disputed elections jurisdiction, the Election Court is to observe the ‘principles, practices and rules’ of the House of Commons Election Committees.153 However, the practical impact of this instruction is likely to be limited, given the extensive reform of electoral law by the Victorian judiciary coupled with the clear direction that an Election Court is to proceed according to the rules of the High Court.

Remedies At the end of the hearing, the Election Court has to decide whether the member whose election is complained of was in fact elected (or if any other person was elected), or whether the election itself was void.154 Its decision is certified in writing to the Speaker of the House of Commons.155 The Court’s certification is final and cannot be questioned by the House.156 Upon receipt of the Court’s certificate, the House must order it to be entered into the Commons Journal and then give a direction to effect the Court’s determination.157 In cases where allegations of corrupt or illegal practices were made, the Election Court must, in addition to the certificate, make a report to the Speaker of the House of Commons.158 The report must also be laid before the Director of Public Prosecutions.159 However, this report is not conclusive evidence of its contents. It is not possible to appeal the decision of an Election Court. In cases where the Election Court has stated a case on a question of law or admissibility of evidence to be heard by the High Court,160 it is possible, with the High Court’s leave, to   Ibid, s 139(1).   Ibid, s 144(4).   Ibid, s 157(2). Some instances where this survives are the law of election agency, which under the House of Commons was enlarged beyond the meaning of common law agency; and the power to hold a scrutiny of disputed votes. 154   Representation of the People Act 1983, s144(1). 155   Ibid, s 144(2). 156   In 1890, the Attorney-General ruled that before entering the certificate relating to a petition in Evesham in the Commons Journals, an opportunity would be given to allow the House’s attention to be drawn to any special circumstances. A review was undertaken, but the certificate was in the end accepted. There appears to have been only one other attempt to delay acceptance of the Court’s certifications. In 1911 a motion was proposed that this could not be done until the court shorthand writer’s notes were tabled. The Speaker ruled that the Election Court’s determination was final and the request was refused: LM Helmore, Corrupt and Illegal Practices (Routledge, London, 1967) 93. 157   Representation of the People Act 1983, s 144(7). 158   Ibid, s 144(4). 159   Ibid, s 160(3). 160   Ibid, s 146. 151 152 153

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appeal the High Court’s determination of a question of law to the Court of Appeal.161 No appeal is permitted from the Court of Appeal’s decision. There is a clear interest embedded in the legislation in a quick resolution to the challenge.

Judicial Review The question of whether an Election Court for a parliamentary election could be judicially reviewed was unresolved for some time. In R v Election Court, ex p Sheppard,162 Lord Widgery LCJ emphatically (albeit obiter) denied that an Election Court could be judicially reviewed, on the basis that it was composed of High Court judges. In R v Cripps, ex p Muldoon, where it was decided that a local election court could be judicially reviewed, the basis for Lord Widgery’s denial in relation to parliamentary courts was doubted but not overturned.163 This issue resurfaced briefly in AG v Jones but was left undecided.164 Finally, in Woolas, the question was squarely confronted and answered in the affirmative. The court approached the question of review on the basis of the principles in R (Cart) v Upper Tribunal.165 In order to decide whether a court should be subject to judicial review, the key question was whether it had limited or unlimited jurisdiction. If jurisdiction was limited, judicial review would be available. A further important consideration, even in the case of courts designed as courts of record (as the Election Court is),166 is the presumption, as stated in Cripps: in the case of tribunals of limited jurisdiction, whether limited by area, subject matter or otherwise, that unless the tribunal in question should be properly regarded as having a status so closely equivalent to the High Court that the exercise of power of judicial review by the High Court is for that reason inappropriate, it is in the public interest that remedies by way of judicial review . . . should be available.167

In other words, is the Election Court the ‘alter ego’ of the High Court? The High Court came to the conclusion that it was not. The view of the court was that first the Election Court has a ‘specific and limited jurisdiction’, that is, to resolve the matters pleaded on the petition.168 Notwithstanding that the Election Court judges have the same powers, jurisdiction and authority as High Court judges, these have to be exercised in the context of the matter before the Election Court.169 The court also made the point of recognising Lord Widgery’s comments about the staffing of the Election Court in Sheppard, but considered, as did the court in Cripps, that this was not a conclusive factor in determining the status of

  Ibid, s 157(1).   [1975] 1 WLR 1319, 1323. 163   [1984] QB 68, 88. 164   [1999] EWHC Admin 377 at [7]. 165   [2010] EWCA Civ 859. 166   Representation of the People Act 1949, s 110(2); now s 123(2) of the 1983 Act. 167   Cripps, above n 163, 87. 168   R (Woolas) v Parliamentary Election Court [2010] EWHC 3169 at [32]. 169   Ibid. 161 162



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the Election Court.170 The Election Court’s designation as a court of record was acknowledged, but described as not ‘a factor of real weight’ in deciding its status.171 The key factor in the mind of the High Court was the relationship of the Election Court to the High Court – in particular, the existence of the special case procedure meant that the Election Court was not the final decider of questions of law.172 Also crucial was the fact that even though there was no provision for an appeal from the decision of an Election Court, with not even Parliament being able to challenge the certificate, this did not mean that a decision made on the wrong interpretation of the law could not be challenged. In the court’s view, an express clause would be required to oust judicial review, and the statute contained none.173

C.  Petitions Reform Possibly because of its infrequent use, neither the underpinnings of the petition model nor its working details have been subject to much scrutiny. With a few exceptions, petition cases tend to concentrate on the dispute at hand rather than engage in the wider questions around petitions. And parliamentarians fail to show much eagerness for reform. In the last hundred years only one of the parliamentary committees or Speaker’s Conferences considering electoral law issues has explored the issues surrounding petitions. It is tempting to conclude that this lack of interest stems from a widespread consensus that the petition system is in no need of improvement. But is unlikely that a system designed in the Victorian era and virtually unchanged since then reflects the reality of the political contest over which it adjudicates.

Standing One criticism of the election petitions model is that it casts the challenge to the election within an essentially private framework of petitioner versus respondent. This model is especially inappropriate when the petition alleges that the election was tainted by some kind of criminal activity.174 The ability to lodge a petition rests not with an agency or officer of State but with a private individual; likewise, the respondent is treated as an individual, rather than as a party or State department. It is possible that in some cases the petition system may be bypassed by complaining to the Director of Public Prosecutions that a corrupt or illegal practice has occurred, which may result in a prosecution being initiated.175 Such cases are not common. The test is whether the prosecution would be in the public interest. Technical offences, those committed as result of as a genuine mistake   Ibid at [33].   Ibid at [35].   Ibid at [40]–[42]. 173   Ibid at [43]–[47]. 174   See O’Leary, above n 13, 47. 175   Representation of the People Act 1983, s 181(1). 170 171 172

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or misunderstanding, offences already remedied and those where the election result could not have been influenced are unlikely to qualify.176 One such prosecution took place after the 1997 election, when Fiona Jones MP was convicted of election expenses fraud. Her seat was vacated, although she was allowed to resume it when her convictions were quashed on appeal.177 Complaints may also be made about election finance irregularities to the specialist Party and Election Finances team of the Electoral Commission. Public or private? The question must be asked why petitions are treated like a private dispute when they are effectively public in nature? The individualistic nature of the petition system is explainable by its creation during the political environment of the 1860s, before the age of mass parties, when achieving representative status was largely an individual effort. This framework may also have been influenced by the view that political representation in the form of a seat was akin to a property right – if not inheritable from father to son then at least purchasable through payments in money or in kind to voters. One of the main aims of the 1868 legislation was to eliminate corruption at elections. While the background which led to this perception of the election contest may no longer exist in so stark a form, the resultant structure still does, so that what we see reflected in petitions legislation is the view that petitions are a private matter, of importance only to the individuals in dispute rather than of any wider societal or public concern. This cannot be sustained as the basis for modern petitions legislation. Elections are now fought by parties, not individuals. These are organisations that receive State assistance in various forms to contest elections. Voters overwhelmingly vote parties’ representatives into office rather than individuals. Candidates are identified by their party labels on the ballot paper, and litigation has ensued where potentially confusing labels have been adopted by other candidates. Yet it is individuals, not parties, whom the law permits to challenge the outcome of the election. This individualistic framework is also at odds with the basis for prosecutions, where the test of public interest clearly indicates that it is the overall integrity of the electoral system which is in issue. To have some matters which undermine elections put in the hands of the State in the form of the police, while others are left to the initiative of private litigants is a contradictory state of affairs. A public interest petitioner? In 1948, the Committee on Electoral Law Reform recommended that petition proceedings be placed in the hands of a public official. The rationale for this was that 176   Crown Prosecution Service, ‘Election Offences’, available at . 177   Attorney-General v Jones [1999] 3 WLR 444.



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underhand behaviour at elections was an ‘attempt to wreck the machinery of representative government and an attack on national institutions’.178 In addition, the Committee noted that ‘the integrity of elections . . . concerns the community as a whole and not merely the electors of a particular constituency’.179 This recommendation was not taken up by the Government and has not been seen again in subsequent committee reports. It remains nonetheless an unaddressed concern. In the most recent petition where electoral fraud was at the heart of the case, Simmons v Khan, Election Commissioner Mawrey QC said in his certificate to the High Court: The election petition is both inadequate and inappropriate as a method of controlling fraud. For electoral policy to be policed by what are, in effect, private civil law actions brought at the expense of the litigant, cannot be acceptable.180

While there is ability in the current system to involve the police in elections, this extends only to allegations of criminal conduct. However, the public interest in the integrity of elections goes beyond criminal offences – elections may also be undermined by maladministration, or by candidates who are prohibited from standing for reasons of conflict of interest, or competency or lack of personal integrity. The need for the State to have some role in the proceedings has already been recognised in at least one case, Hussein v Khan, mentioned above, where the Court was of the opinion that the returning officer should always be a party to the petition.181 In making that suggestion, Ouseley J appeared to be putting it forward as an alternative to securing public assistance, thereby recognising the public interest in monitoring elections.182 The public interest aspect is also spotlighted by the fact that in recent years, the Ministry of Justice has been prepared either to pay the insurance policies of returning officers taken out against the possibility of defending a petition, or to grant an indemnity to returning officers.183 John Stewart has suggested that such a monitoring role could be given to the Electoral Commission.184 In this regard a useful precedent exists in Australia. There, the Australian Electoral Commission (the AEC), an independent statutory authority charged with the administration of elections, may, since 1984, be given leave by the Court of Disputed Returns to appear as a party (as respondent) to petitions brought before the Court.185 The AEC also has the right to 178   Home Office, Final Report of the Committee on Electoral Law Reform (Cmd 7286, HMSO, London, 1947) 18. 179   Ibid. 180   Simmons v Khan (Slough, 18 May 2008), R.20. Commissioner Mawrey had earlier expressed his views on the limitations of the petitions process in Scarth v Amin (Bradford, 1 May 2008), saying ‘an election judge does not have a roving commission to set aside an election whenever he feels that something improper may have happened’. 181   Hussein v Khan, above n 146, para 64. 182   Ibid, commenting that the returning officer’s attendance would be ‘invaluable if there is to be no public funding of Petitioners or Respondents’. 183   See D Monks, Practical Elections Administration (Crayford, Kent, Shaw and Sons Ltd, 2008) 101–03. 184   Stewart, above n 133, 666. 185   Commonwealth Electoral Act 1918 (Cwlth), s 359.

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bring a petition on its own initiative,186 and is required to file a petition in the case of recounts.187 Although the UK’s Electoral Commission is not responsible for the conduct of elections itself, it does already play a significant role in ensuring that elections are conducted properly through its work in registering parties and overseeing the political donations regime. It is not a large step giving it a further role in maintaining the integrity of elections by granting it standing before an Election Court, as with the Australian model.188 Choosing the Commission rather than the Ministry of Justice has the advantage that not only is the Commission a strictly non-partisan body, it is also independent of government. It reports directly to Parliament, via the Speaker’s Committee, and has its own, non-ministerial representative in the House. An investigatory role for the Electoral Commission? This role in petitions litigation could be buttressed by the establishment of an investigatory role into electoral conduct for the Commission generally. In cases where the result is not in doubt but allegations of corruption are nonetheless made, those concerned about the integrity of the result may decide not to bring a petition, especially after weighing up the costs involved and the possibility of success. For instance, what is the likelihood of a voter, who has been turned away from the polling station on the basis that she has already voted, bringing a petition on the basis of suspected personation? However, it is still important to ensure that elections, in the words of the ECHR, are an opportunity for the ‘free expression of the opinion of the people’. There is also historical precedent for this. As noted earlier, inquiries into corruption were often used in Victorian times when evidence of corruption had come to light before the parliamentary committee hearing the petition. The power of the parliamentary committee to establish a Royal Commission under the 1852 Election Commissioners Act was taken over by the Election Court in the Parliamentary Elections Act 1868.189 This was expanded to include a power to inquire into illegal practices in the Parliamentary Elections and Corrupt Practices Act 1879.190 The Election Commissioners Act 1949 consolidated the inquiry legislation and it 186   Commonwealth Electoral Act 1918 (Cwlth), s 357(1). The Australian Commission has exercised this power at least five times, each time in relation to an election for a regional council held under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cwlth). Four cases addressed elections marred by officials’ administrative errors: AEC v Gordon (5 September 1994, BC 9400065); AEC v Lalara (27 September 1994, BC 9405064); AEC v Landy (22 December 1994, BC 9405696); AEC v Bamblett [2004] FCA 755. The remaining case concerned candidate disqualification: AEC v Wilson [2003] FCA 434. 187   Commonwealth Electoral Act 1918 (Cwlth), s 357(1A). 188   If a model closer to home is thought more appropriate, the Electoral Commission’s powers could also be modelled on those of the Commission for Equality and Human Rights. Under s 30 of the Equality Act 2006, the Commission has the power to ‘institute or intervene in legal proceedings, whether for judicial review or otherwise if it appears to the Commission that the proceedings are rele­ vant to a matter in which the Commission has a function’. 189   Parliamentary Elections Act 1868, s 15. 190   Parliamentary Elections and Corrupt Practices Act 1879, s 12.



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remained in force until 1969, when it was repealed as being an ‘unnecessary enactment’.191 Election Commissioners were barristers of at least seven years’ standing, appointed by the monarch following an address by both Houses of Parliament. They were permitted to use ‘such lawful means as they think best’ to inquire into the election in question; they also had powers to summon evidence and take evid­ ence from witnesses under oath, and enjoyed the same powers as an Election Court with respect to the obligations on witnesses. Where their orders to attend were not complied with, they could certify this to the High Court, whereupon the court could proceed as if its own orders had been flouted. Persons not complying with the Commissioners’ other requirements were deemed to be in contempt of the Commissioners. The report of the Election Commissioners was to be laid before Parliament and, if evidence of corrupt or illegal practices had been found, passed to the Attorney-General for his views on prosecution. The investigatory powers were done away with as corruption declined, but the evidence today points to a resurgence of electoral corruption in the last decade.192 In addition to the high-profile cases of local election fraud in Birmingham, Slough and Bradford, in research undertaken by the Electoral Commission in 2008, it was reported that 29 per cent of respondents believed that electoral fraud was generally a problem in the UK.193 The Election Court can refer information about corrupt practices to the Director of Public Prosecutions if it is unearthed during the petition process, but this of course requires a petition to be brought in the first place. The Political Parties and Elections Act 2009 has created new and strengthened powers for the Electoral Commission in its role in monitoring party finances. Under this Act, the Commission has the power to require the disclosure of documents, and where the request is unreasonably refused, the power to enter premises and inspect, obtain and retain copies of documents relating to party finances.194 The Commission will also be able to impose a fixed monetary penalty for non-compliance with certain requirements, impose discretionary requirements (to pay money, to take steps to ensure the activity does not reoccur or to restore the previous position) on persons it is satisfied have committed offences under the Act, issue stop notices and secure enforcement undertakings from people not to continue activities that contravene the Act.195   Representation of the People Act 1969.   R Price, ‘Election Fraud has increased since postal ballot reforms, says watchdog’, The Telegraph, 9 February 2009, reporting the views of Sir Christopher Kelly, chair of the Committee on Standards in Public Life, that postal voting on demand has made ‘it easier for those individuals who want to manipulate the electoral system for their own ends’. These concerns may be somewhat assuaged by the introduction of individual voter registration in the Political Parties and Elections Act 2009. 193   Electoral Commission, ‘Allegations of electoral malpractice at the 2008 elections in England and Wales’ (Electoral Commission, London, April 2009) 4. The Commission reported that 103 cases of electoral malpractice were recorded at the 2008 local elections: ibid,16. 194   Political Parties and Elections Act 2009, s 2, inserting new Sch 19B into the Political Parties, Elections and Referendums Act 2000 (PPERA 2000). 195   Political Parties and Elections Act 2009, s 3, inserting new Sch 19C into PPERA 2000. 191 192

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These new powers and civil sanctions provide a useful indication of what the Electoral Commission’s role might look like if they were extended to deal with allegations of untoward electoral conduct. They also demonstrate that there is political will to expand the Commission’s current role in ensuring the integrity and smooth administration of elections.196 It is also possible that the Electoral Commission might take on the role of prosecuting electoral fraud and corruption itself. While the Political Parties, Elections and Referendums Act 2000 does not explicitly award the Commission a prosecutorial role either for offences contained in the Representation of the People Act or those under the Political Parties and Elections Act, that may not in itself be a bar to the Commission being able to act as prosecutor. Private citizens may bring prosecutions and do not need any statutory authority to do so. The question of monitoring bodies’ prosecutorial powers has been explored by the High Court. The Electoral Commission has under the Political Parties, Elections and Referendums Act 2000 a general power ‘to do anything (except borrow money) which is calculated to facilitate, or is incidental or conducive to, the carrying out of any of their functions’.197 The identical term in the Private Security Industry Act 2001 was considered in 2008 in R (Securiplan) v Security Industry Association,198 where the Association (the SIA) argued that this included the right to prosecute for offences. The High Court agreed, saying that a prosecutorial power ‘is calculated to facilitate, or is incidental or conducive to, the carrying out of the SIA’s functions’ (these being general monitoring, licensing and inspection functions). The court added that it was wholly unpersuaded by the view that ‘the Act, whilst prescribing regulatory offences, by implication requires the SIA, as the body with the knowledge of non-compliance, to outsource the prosecution function to an overstretched police force and Crown Prosecution Service’.199 Moreover, the SIA was ‘in a peculiarly advantageous position to prosecute’. In coming to that conclusion, the High Court relied on the opinion of Lord Woolf MR in Broadmoor Special Health Authority v Robinson, where his Lordship said: If a public body is given responsibility for performing public functions in a particular area of activity, then it will usually be implicit that it is entitled to bring proceedings seeking the assistance of the courts in protecting its special interests in the performance of those functions.200

There is a strong case that this reasoning could be called in aid for the Electoral Commission: it is the body tasked with monitoring parties and their finances, and under the Political Parties and Elections Act 2009 it has acquired the role of secur196   This role is currently fulfilled through various functions of the Election Commission. For example, it has a statutory duty to report on the conduct of elections (PPERA 2000, s 5); it has the power to provide advice and assistance to returning officers and electoral registration officers (PPERA 2000, s 10); it sets performance standards for electoral officers (PPERA 2000, s 9A and 9B); and it monitors party finances (PPERA 2000, Pt III) 197   PPERA 2000, Sch I, para 2. 198   [2008] EWHC 1762 (Admin). 199   Ibid at [14]. 200   [2008] QB 775, para 25.



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ing their compliance with the law.201 It also oversees voter registration and electorate boundary reviews, and reports on elections (including malpractice at elections). All these functions point to a unique role and responsibilities for the Electoral Commission with regard to our electoral system. It should therefore have the power to ensure that it can carry out those responsibilities effectively, including a power to prosecute. Political parties’ rights Although the law maintains the fiction that petitions are an individual concern, behind that façade most petitions will be conducted with the assistance of parties. It is been some time since elections were contested by unaffiliated individuals, so why then should the result be petitioned only by individuals rather than the organisations to which they are affiliated? It is time to make the role parties play in petitions more transparent and grant to them rights of standing.

Access to Justice The cost of petitions In the first couple of decades after the 1868 reforms, concerns were raised that the cost of lodging and conducting a petition meant that the process was ‘denied to all but very rich persons or to political associations’.202 Evidence was brought before the 1897 review committee that generally less than half of the cost of bringing a petition was recovered.203 In 1947, the Committee on Electoral Law Reform commented on the fall in petitions during the twentieth century and noted that ‘there is some reason to think that the heavy cost of petitioning acts as a deterrent’.204 In 1965 a Speaker’s Conference was charged with considering the costs of election petitions.205 Nothing came of this. The Conference’s 1967 report notes, without elaboration, that the Conference had decided not to recommend any change to the then law.206 The Government, more pre-occupied with the issue of changing the voting age, accepted the recommendation without comment.207 Nonetheless, concerns about the costs involved with petitions continue to be expressed: in 2007, Roger Morris and David Monks, both experienced local election returning officers, wrote that a petition was ‘an immensely serious situation with considerable ramifications – hence the need for insurance. High Court litigation can easily run bills up to six figures . . .’.208   Political Parties and Elections Act 2009, s 1(2).   O’Leary, above n 13, 202, citing the Law Journal. 203   Ibid, 203. 204   Electoral Law Committee, above n 178, 18. 205   Letter from the Speaker Cmnd 2880 (HMSO, London, 1965) 2. 206   Conference on Electoral Law Cmnd 3275 (HMSO, London, 1967) 5 207   Conclusions on Review of the Law Relating to Parliamentary Elections Cmnd 3717 (HMSO, London, 1968). 208   R Morris and D Monks, Running Elections 2007 (Solace Enterprises, London, 2007) 150. 201 202

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Even before the cost of bringing a petition is taken into account, some potential petitioners may be deterred by the amount required as security for costs, particularly if they not backed by a political party. Petition rules now require that up to £5,000 be paid in as security for costs,209 as well as the £400 fee for lodging the petition. The cost of bringing the petition is likely to be well in excess of £5,000. This contrasts starkly with the Australian requirement of A$500 (about £240) as security for costs,210 or New Zealand, with virtually identical legislation, where the requirement is NZ$1,000 (about £400). A similar amount would seem to be sufficient to deter frivolous petitions, but would significantly lower the obstacles to bringing a petition itself. Legal aid If petition costs cannot be reduced, then perhaps a case can be made for assisting petitioners in other ways. Concerns regarding access to justice, this time in the form of the availability of legal aid for petitions, have resurfaced recently. In the case of the 2005 Bordesley Green petition,211 which involved allegations that substantial fraud had taken place during a local election conducted by postal voting, Election Commissioner Mawrey QC commented with some concern on the matter, saying: In particular Messrs Steel & Shamash [the Labour Party’s lawyers] put great pressure on the Legal Services Commission to refuse to continue the funding of the Bordesley Green Petitioners to trial. Although I do not think that they stepped over the line into legal impropriety, I was very disquieted by their approach and authorised the Petitioners’ solicitor to inform the Legal Services Commission that I considered it was in the public interest that they be permitted to continue the Petition as recipients of legal aid.212

In that case, legal aid was granted. That instance notwithstanding, although election petitions are not within the category of actions specifically ineligible for State assistance under the Access to Justice Act 1999, the available evidence indicates that it is extremely hard to secure. In 2005 a petition challenging the result in the parliamentary constituency had to be withdrawn when legal aid was denied to one of the candidates.213 In the 2006 case of Hussein v Khan, Ouseley J commented on the petitioners’ application for legal aid that ‘it would not be normal for [the Legal Services Commission] to fund such a case’.214 Yet it seems quite plausible that where a prosecution is brought for criminal activity in relation to elections, legal aid may have been granted to some of the defendants. Indeed, the rising use of prosecutions for election offences as demonstrated by the Rowntree statistics would increase the likelihood of that happening. Where the overarching purpose of the litigation is the same – to ensure that elec  Representation of the People Act 1983, s 136(2)(a).   Commonwealth Electoral Act 1918 (Cwlth), s 356.   [2005] All ER (D) 15. 212   Ibid, para 320. 213   White, above n 134, 10. 214   Hussein v Khan, above n 146, at [9]. 209 210 211

Conclusion 99 tions are free and fair – it seems anomalous that in some cases public assistance is available and in others it is not. Under the current state of affairs, there is potential for a conflict with the right to be a candidate for election under P1-3 to the ECHR, both in the sense of defending one’s successful candidacy or challenging someone else’s. This is particularly so for independent candidates or concerned members of the public, who may not have the financial resources to undertake a petition.

An Alternative Legal Process for Administrative Errors? Bringing an election petition is not to be embarked upon lightly: the cost, time and legal complexities involved all act together to make this substantial undertaking. While in many cases this is justified by the reason behind the petition – the need to secure the integrity of the process against corruption, or to make sure that the right candidate is entitled to the seat – in some cases the problem may be relatively minor. Say, for example, that a returning officer, through a slip of the tongue, declares the wrong candidate to be elected.215 In these instances, where all parties to the election are in agreement that X rather than Y was elected, it seems a dis­ proportionate effort to go through the petitions process for correcting an administrative error. Yet that is what the legislation requires. In these sorts of cases, David Monks has suggested that it would make more sense to provide that on an ex parte application to a High Court judge in chambers, the election result could be corrected.216 This would be a very useful amendment to the current election petition process, simplifying the process and reducing costs.

VII. Conclusion At their core, challenges to elections are about the integrity of the democratic system and its participants. When something goes wrong, a means is needed to fix it and legitimise the result. Disputes over elections have a long history. The early years of elections saw controverted elections centring on remedies for the corrupt behaviour of county court sheriffs in administering the election and returning the writ. As the centuries progressed, attention shifted to the forum in which that behaviour could be regulated – should it be the courts, and if so, which court, or was the dispute better decided by Parliament? Parliament eventually gained the upper hand, before ceding its jurisdiction to hear election petitions to the judiciary with little fanfare in the mid-Victorian era. For the next hundred or so years, the Election Court tidied up the petitions system and corruption became a rare event; contemporary wisdom would have it that the law on election petitions was so little-used as not to be worthy of examination.   For examples of this occurring, see Monks, above n 183, 91–92.   Ibid, 92.

215 216

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However, a resurgence of corruption (or perhaps more vigilance in its detection) has seen petitions feature more prominently in the electoral landscape. Petitions have long been premised on a model of private disputants. However true that may have been when Matthew de Cranthorn brought his complaint about Robert Beudyn’s conduct in 1318, it cannot be said to be the case now. Not only is there a clear public interest in the petition process and its outcome, there is a strong argument that the State should take a greater role. Because of their public nature, petitions should be reformed along these lines. The Electoral Commission and political parties should be granted the ability to bring petitions, and either the legal aid rules or petition costs should be revised so as to improve access to the process for potential petitioners. It is also suggested that another look is taken at the processes for addressing corruption in elections generally, with an investigatory role into electoral misconduct to be given to the Electoral Commission.

5 Challenging Candidate Selection in the Courts I.  Introduction: Mr Jepson Goes to Court To take on the combined might of a QC and the Labour Party while still a law student might seem ill-advised, at best. However, when in 1996 Patrick Jepson put his newly-acquired legal skills to the test, he not only came out best, he also opened up a new area of law as an arena for dealing with the internal disputes of political parties. The case was Jepson and Dyas-Elliott v The Labour Party.1 Jepson challenged the Labour Party’s policy of all-women shortlists for seats it thought it was likely to win in the 1997 election. He claimed that this was sex discrimination in the employment field, the employment in question being as a Labour Party candidate. The Employment Tribunal agreed, and set in train a flurry of legal activity which culminated in amendments to the Sex Discrimination Act 1975 to exempt parties’ candidate selection activities from its provisions.2 The Jepson case illustrates some developments in the search to discover how the law interacts with the electoral process. First, employment law might seem like a curious jurisdiction in which to litigate the candidate selection process. It certainly is not the traditional legal framework for resolving political parties’ disputes. This shift in the choice of law brings its own set of considerations, and indeed raises the question of whether Jepson made the most appropriate choice. Secondly, the fact that Jepson chose to litigate his ineligibility in a public forum rather than make a behind-the-scenes complaint to the Labour Party hierarchy demonstrates how the moment of selection has, in certain circumstances, gained in significance.   [1996] IRLR 116.  The Sex Discrimination (Election Candidates) Amendment Act 2002. See also N Busby, ‘Sex Equality in Political Candidature: Supply and Demand Factors and the Role of the Law’ (2003) 66 MLR 245; N Busby and R Smith, ‘Nothing to Fear? Equal Representation in the Scottish Parliament and the Fear of Legal Challenge’ (2000) 2 Mountbatten Journal of Legal Studies 33; M Russell, Women’s Representation in UK Politics: What can be done within the Law? (Constitution Unit, London, 2000); M Russell, The Women’s Representation Bill: Making it Happen (Constitution Unit, London, 2001). Keith Vaz MP proposed a similar amendment to the Race Relations Act 1976 to allow the Labour Party room to select more black and ethnic minority candidates: V Dodd, ‘Law change urged so Labour Party can have all-black shortlists’, Guardian, 3 September 2007. 1 2

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Challenging Candidate Selection in the Courts

Against a backdrop which recognises the clash between traditional legal views of political parties and the increasing importance of the candidate selection process to aspiring parliamentarians, this chapter considers the different models of challenging candidate selection which exist in a selection of common law countries (the UK, Australia and New Zealand).3 It argues that the current models of regulating candidate selection in the UK are inappropriate and should be replaced with the Australian model which recognises the role that political parties play in the affairs of State.

II.  Why is Candidate Selection Increasingly Important? Historically the law’s focus, when determining who should be permitted to enter Parliament, has been directed at the period after an election has been held. It is the law’s traditional role to regulate conflicts in election amongst candidates of opposing parties, not prior to the election and between candidates from the same party. However, these days, where in many constituencies the existence of long-held party loyalties means that that the outcome of an election is essentially predetermined, the real contest may well occur at the selection level. This is equally the case in proportional systems, where what is important is securing a sufficiently high place on the party list to be elected. Candidate selection has become an increasingly important aspect of electoral practices: whether for a constituency or a party list, the selection of candidates begins a process which ultimately determines the quality of the legislature4 (and thus the government);5 some have even posited that the fallout from a badly-­ managed selection process can affect a party’s electoral fortunes6 or the reputation of the party leader.7 The latter is particularly important, with the rise of identification with the leader taking the place for many of party loyalty8 – this then in turn feeds into a party’s fortunes. The stakes, therefore, are considerable. In 1988, Michael Gallagher, in the classic work Candidate Selection in Comparative Perspective, noted that despite this significance, candidate selection processes were 3   These countries are chosen because they share a common history, legal tradition and, to some extent, electoral system, and are all constitutional monarchies within the framework of a Westminster representative democracy, yet they demonstrate the different methods of dealing with candidate selection disputes. 4   R Blackburn, The Electoral System in Britain (Macmillan, London, 1995) 157. 5   R Ridell et al, Report of the Commission on Candidate Selection (Electoral Reform Society, London, 2003) 9. 6   R Salmond, ‘Choosing Candidates: Labour and National in 2002’ in J Boston et al, New Zealand Votes (Victoria University Press, Wellington, 2003) 204. 7  K Alderman, ‘Stranger than Fiction? The Selection of the Conservative and Labour London Mayoral Candidates’ (2000) 53 Parliamentary Affairs 737, 751–52. 8   RS Katz, ‘The Problem of Candidate Selection and Models of Party Democracy’ (2001) 7(3) Party Politics 277, 289.



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the ‘secret garden’9 of politics; he commented that they had consequently received little attention in the political science literature. This view cannot be sustained for political science,10 but it is still largely true of the legal literature.11 This difference in the attention devoted to the subject by the two disciplines is revealing, suggesting that even by this measure, the law has not yet caught up with developments in representation theory and practice (or, where it does engage with these changes, it has done so in an ad hoc way). One reason for this may be that candidate selection is an activity usually carried out in private. It is generally only when disputes arise that parties’ internal activities are exposed to public view and then. sometimes, the law’s attention. The private nature of candidate selection has perhaps reinforced the view that parties are private bodies in whose activities the law should not intervene.12 Why have candidate selection processes become more contested of late?13 One theory centres on the increasing professionalisation of politics. For individuals, the role of candidate, the person who will be presented to the electorate as the party’s choice, is seen as a full-time profession, rather than a public duty undertaken as a community service or for personal interest as a complement to one’s usual occupation.14 In a safe seat, where a scarce resource with considerable monetary, personal and professional rewards in the form of the candidature is to be allocated, it is logical that the allocation process will be the subject of conflict. Unsuccessful aspirants will not end their quest with the decision of the selectors but are now willing to take matters to court. Other reasons for increasing challenges are less personal in nature. In the structural sense, the increased importance of candidate selection manifests itself in two main ways: one is to the party in terms of party representation; the other relates to identity representation. 9  M Gallagher and M Marsh (eds), Candidate Selection in Comparative Perspective: The Secret Garden of Politics (Sage, London, 1988). 10   Since the publication of Gallagher and Marsh, there has been an explosion of interest in candidate selection. See, eg, S Barnea, ‘Reforming Candidate Selection Methods’ (2007) 13(3) Party Politics 375; P Pennings and RY Hazan (eds), ‘Democratizing Candidate Selection’ (2001) 7(3) Party Politics (entire issue); P Norris (ed), Passages to Power (Cambridge University Press, Cambridge, 1997). See also RY Hazan and G Rahat, Democracy within Parties (Oxford University Press, Oxford, 2010). 11   Exceptions are: Blackburn, above n 4; G Orr, ‘Overseeing the Gatekeepers’ (2001) 12 Public Law Review 89; G Orr, ‘The law comes to the party: the continuing juridification of political parties in Australia’ (2002) 3(3) Constitutional Law and Policy Review 41. 12   KD Ewing, The Cost of Democracy (Hart Publishing, Oxford, 2007) 67, has remarked that ‘so far as the internal affairs of the parties are concerned, the governing principle appears strongly to be auto­ nomy of party organisation’. 13   Also evident are threats of litigation to address disputes over selection results or processes. See J Bradbury et al, ‘Candidate Selection, Devolution and Modernization: The Selection of Labour Party Candidates for the 1999 Scottish Parliament and Welsh Assembly Elections’ (2000) 10 British Elections and Parties Review 151, 164, on such threats over the ‘twinning’ process adopted in Scotland. See also K Elgar, ‘The legal standing of political parties’ (1997) Aug Australian Lawyer 12, 13, on similar instances in Australia. 14   Eg, see Amalgamated Society of Railway Servants v Osborne [1910] AC 87, which, although decided on the narrow question of whether it was within the meaning of the objects of the trade union to provide financial support to Labour Party representatives, was infused with the understanding that politics was a voluntary profession.

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With the rise of party politics outlined earlier, the choice of candidate is crucial for parties. Few candidates are elected without a party affiliation.15 In both plurality and proportional representation systems, parties use candidates to communicate certain points about themselves to voters. The candidate represents, or reproduces, the public face of the party, which is why parties sometimes ‘deselect’ previously chosen candidates,16 or go to considerable lengths to place obstacles in the way of those seen as undesirable.17 As Katz notes, candidates represent the ‘demographic, geographic, and ideological dimensions of the party’.18 Depending on whether a seat is perceived as safe, marginal or unwinnable, the party can choose a candidate who will reinforce the views of its loyal supporters, persuade the swinging voter or provide an outlet for a protest vote that may undermine its opposition. Similarly, presenting a ‘balanced list’ with high-profile women, minority ethnic or other candidates seen as important to the party, provides an opportunity to appeal to a wider range of voters and capture certain sectoral votes. Any particular candidate may be aligned with a particular faction within that party. It has been suggested, therefore, that debates about the nature and direction of a party are encapsulated in candidate selection contests,19 the Jepson case being a good example of this. There is much more going on than simply the outcome for the individual candidates. A party may wish to present itself as democratic or open, authoritative or decisive, or meritocratic or aligned with a particular interest, with this face being manifested in its candidate selection processes. These can be an early symbolic notification to voters of the kind of party it is – the public face of the party being mirrored by its increasingly non-private selection contests. The way in which a candidate has been selected may also be premised on the expectation that a successful candidate will effect a particular candidate–party and/or candidate–voter relationship.20 For example, the degree of central control over selection, or, in a mixed proportional/plurality system such as the Welsh and Scottish electoral systems, whether a representative is from the list or constituency, may produce a candidate whose primarily loyalties lie with the party and its manifesto, or a candidate who is more committed to a geographic constituency. This   P Seyd, ‘In Praise of Party’ (1998) 51(2) Parliamentary Affairs 198.   See, eg, D Hough and C Jeffery, ‘Party Organization in Multi-Level Contexts’ in I van Biezen and J Hopkin (eds), Devolution and Electoral Politics (Manchester University Press, Manchester, 2006) 26–29. A very public example of deselection has occurred with the Labour Party’s response to the 2009 MPs’ expenses scandal: a special committee of the National Executive has been established to which certain MPs must answer for their expenses claims while facing the sanction of deselection. See J Booth, ‘Labour sets up discipline panel to deselect MPs over expenses scandal’, The Times, 19 May 2009. Given the circumstances, litigation is probably unlikely, but it does demonstrate the importance for parties of being represented by those it judges most appropriate to do so. 17   As with the Labour Party over Ken Livingstone’s candidacy for the London mayoralty. 18   Katz, above n 8, 278. 19   M Gallagher, ‘Introduction’ in Gallagher and Marsh (eds), above n 9, 3, observes ‘the contest over candidate selection is generally even more intense than the struggle for control over the party manifesto’. 20   Ibid, 15. 15 16



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can affect a party’s discipline within the legislature and, if it is a government with a narrow majority, its ability to achieve its policy goals. The conflict between Mr Jepson and the Labour Party had its basis in the rise of identity representation as a means of conceptualising the role of the representative.21 The all-women shortlists in seats thought winnable for the Labour Party were clearly designed to effect an increase in women representatives.22 At the time the policy was being implemented prior to the 1997 election, women comprised less than 10 per cent of the membership of the House of Commons.23 The lack of women was seen as problematic, because it meant that Parliament fell short of achieving the goal of ‘microcosmic’ representation. A non-representative Parliament suffered a lack of legitimacy. In addition, a Parliament which simply did not ‘look like Britain’24 sent the message to the electorate that women, and a fortiori, ethnic minorities, were not welcome in politics, not seen to be capable of acting as representatives, a message which could be a contributor to political and perhaps wider societal alienation. Under this characterisation of the representative, the representative was therefore to transcend her party identification. Identity representation continues to be a matter of concern, with all three major parties having groups seeking to increase women’s representation by various means.25 In addition, the Equality Act 2010 goes further than matters of gender identity representation, and contains measures allowing parties to regulate the process of candidate selection so as to reduce inequalities between those who share a ‘protected characteristic’ (such as race or disability) and those who do not (although, except in the case of women, they may not comprise the entire shortlist).26 Underpinned by these personalised and structural reasons, legal challenges to candidate selection relocate the usual electoral contest from the inter-party to the intra-party (or, in rare cases, inter-individual) stage. Thus we need to relocate our focus from the courts which hear an election petition to the inner workings of the political party.

III.  The Legal Status of Political Parties Traditionally, political parties have maintained a very low profile in the law. Keith Ewing wrote in 2007 that ‘political parties enjoy no special or distinctive legal   See ch 2.   On the history of the policy, see C Short, ‘Women and the Labour Party’ (1996) 49(1) Parliamentary Affairs 17; J Squires, ‘Quotas for Women: Fair Representation’ (1996) 49(1) Parliamentary Affairs 71. 23   It appears to have stagnated after the doubling in 1997. After the 2010 general election, women comprised 22% of the membership of the House of Commons and 22% of the House of Lords (not including the Lords Spiritual). 24  Riddell et al, above n 5, 10. 25   These groups are Women2Win (Conservative); Labour Women’s Network (Labour); and the Gender Balance Task Force (Liberal Democrat). 26   Equality Act 2010, s 104. 21 22

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status’.27 Indeed, it has even been argued that parties have no legal profile or place in law. Typical of this view is this comment from the 1930s: The party is an extra-constitutional phenomenon. Its resolutions are, from a legal point of view, merely the utterances of a social body unknown to the state organism and without binding force or authority. The assertion that the modern state is built around political parties is legally untenable.28

This extra-legal status was something to be proud of, according to some who opined almost 50 years later that ‘It is a valuable feature in the whole British parliamentary system that political parties as such are not recognized’.29 However, it was probably something of an exaggeration to say that political parties had no legal recognition. While they attracted little legal attention, and did not have any peculiar legal status, parties’ affairs were nonetheless constituted and governed according to law. That law is the law of voluntary associations, more generally termed ‘club law’. It deals with the affairs of unincorporated and incorporated associations or societies, and ranges in its coverage from local twitchers’ groups to the Royal Jockey Club. Even though it may seem incongruent to list political parties alongside organisations formed for pursuing recreational and sporting interests, since parties are also associations of persons, club law has been their traditional legal home.30 Voluntary associations are generally not regarded as legal entities which have an existence separate from the members who comprise them. If there are no members, the club will cease to exist. This is probably how the view that parties as such have no legal status has arisen. The definition of an association can be found in Conservative and Unionist Office v Burrell: Two or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings each having mutual duties and obligations, in an organisation which has rules which identify in whom control of it and its funds rests and on what terms and which can be joined or left at will. 31

Club law is very much private law, that law being contract. An association is governed by its rules or formal constitution which forms the contract between the individual members (rather than between each member and the association as a body).32 Each can tailor its rules to meet its own purposes and circumstances.   Ewing, above n 12, 63.   H Triepel, Staatverfassung und Politische Parteien, 2nd edn (Otto Weinberg, Berlin, 1930) 29, cited in CJ Schneider, ‘Political Parties and the German Basic Law of 1949’ (1957) 10 Western Political Quarterly 527, 528, fn 3. 29   JC Courtney, ‘Recognition of Canadian Political Parties in Parliament and in Law’ (1978) 11(1) Canadian Journal of Political Science 33. 30   It is interesting that two major texts on club law, D Ashton and PW Reid, Ashton and Reid on Club Law (Jordans, London, 2005) and J Warburton, Unincorporated Associations: Law and Practice, 2nd edn (Sweet & Maxwell, London, 1992), acknowledge in only the briefest terms that parties come within this sphere of law, which indicates their lack of special status. 31   [1982] 1 WLR 522, 525. 32   As Ashton and Reid, above n 30, 28, note: ‘The club’s set of rules is the bedrock of club law.’ This is a long-established principle: see Hopkinson v Marquis of Exeter (1867) LR 5 Eq 63, 67, a case involving 27 28



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When there is a conflict, the expectation would be that the disputants use the internal dispute resolution process as set out in the rules. But should self-­ governance be unsuccessful or not preferable, a court can be called on to adjudicate or clarify the rules, just as it would the terms of any other contract. There is now no boundary as to the issues a court may consider,33 and a rule which attempts to oust the jurisdiction of the courts will be inoperative.34 Thus, under this model parties are no more than an assemblage of persons gathered together to advance their political interests. Their affairs are essentially governed by the law of contract.35 The use of contract law as the dominant paradigm in political parties’ affairs underlines and reinforces the view that parties are groupings of private individuals whose dealings are below the horizon of the constitution. This view also justifies the courts’ continued characterisation of representatives as being only loosely linked to, or somewhat above, their party.36 Representatives are linked instead, and primarily so, to their constituents (the constituency being defined by locality rather than by identity).37 The linkage between these two positions was clearly articulated in a New Zealand case involving an attempt to require an unsuccessful candidate to undertake not to compete in an upcoming election against the party’s preferred nominee: [F]or legal purposes, political parties are private bodies. They have no statutory or public duties. If they wish, parties can assist individuals onto the stage of public life and offer support and suggestions from the wings while they are there . . . [but] the fact that a party has supported a successful candidate does not impose any fresh legal status or responsibilities on that party. The party remains in the wings as a private entity. . . . One must carefully distinguish between public law relating to electoral processes on the one hand and private law relating to the activities of unincorporated associations on the other.38

an application for reinstatement to membership of the Conservative club, where Lord Romilly MR said that ‘in order to secure the principal object of the club, the members generally enter into a written contract in the form of rules’. 33   Previously courts were reluctant to become involved unless there was a property interest at stake. This is a hangover from the time when clubs were generally governed by equity. See S Lindsay, ‘Jurisdiction to Review Expulsion from a Political Party’ (1987) 16 Melbourne University Law Review 326, 338, noting the decline of the proprietary interest as the basis for jurisdiction. 34  See Lee v Showmen’s Guild of Great Britain [1952] 2 QB 329 (travelling fairground operators); Baker v Jones [1954] 1 WLR 1005 (weightlifters). This is unsurprising, as courts generally take a dim view of ouster clauses, whether contractual or statutory, the classic example of this being Anisminic v Foreign Compensation Commission [1969] 2 AC 147. 35   See, eg, this statement from the New Zealand Supreme Court in Awatere Huata v Prebble [2005] 1 NZLR 289, 309: ‘Both ACT New Zealand and the parliamentary party derived from it are unincor­ porated associations which exist for political purposes. They are organised under the rules adopted by their members.’ 36   R v Waltham Forest Borough, ex p Baxter [1988] 2 WLR 257, 264, per Stocker LJ. 37  See London Borough Council of Bromley v Greater London Council [1983] 1 AC 768, 829, per Lord Diplock: ‘[A] council member once elected is not the delegate of those who voted in his favour only; he is the representative of all the electors (ie adult residents) in his ward.’; R v Boundary Commission, ex p Foot [1983] 1 QB 600. 38   Peters v Collinge [1993] NZLR 554, 575.

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This is a very different approach from that taken in some other jurisdictions. It is in stark contrast, for example, to the position in Germany,39 which has an entire statute dealing with political parties, as well as devoting an article of the Grundgesetz (Basic Law) to parties. The German Political Parties Act 1967 defines parties by both their representative and participatory democratic functions as ‘associations oriented to the formation of political opinions at the Federal or Land level and to participation in the representation of the people in the Federal Parliament or regional parliaments’.40 Section 17 of the Act requires parties to select their candidates by secret ballot, with the German Electoral Act 1993 providing more detail as to the actual process and the role of the parties in relation to this.41 Article 21 of the German Basic Law 1949 states that parties ‘participate in the forming of the political will of the people’.42 It follows from this that their internal affairs should be organised democratically, and they must be publicly accountable for the sources of their funding. Parties must also abide by the democratic nature of the State. As Schneider notes, ‘Article 21 constitutionalises political parties and their activities, and formally acknowledges that political parties have a genuine and legitimate function to perform in modern democratic government.’43 The degree of regulation evident in the Political Parties Act 1967 further underscores this point. Schneider also comments that while it was perfectly possible to deal with parties in German law under the club law model, ‘the effect of Article 21 is to distinguish political parties from ordinary associations and . . . give them a unique position as a functioning part of the machinery of government’.44 In Australia, although its legislative compass is not as explicit as the German, a 1984 amendment to the Commonwealth Electoral Act 1918 defines a party as ‘an organisation the object or activity, or one of the objects or activities, of which is the promotion of the election to the Senate or to the House of Representatives of a candidate or candidates endorsed by it’.45 This provision came on the back of public funding and disclosure requirements, and clearly acknowledges the role of the party in the democratic life of the nation. Even this very brief look at other democracies’ ways of dealing with the status of parties reveals that a party’s legal status is not necessarily fixed: the degree of regu39  On the state of parties law in other European jurisdictions, see D Avnon, ‘Parties Laws in Democratic Systems of Government’ (1995) 1(2) Journal of Legislative Studies 283; S Bennett, ‘Australia’s Political Parties: More Regulation?’ (Australian Parliamentary Library Research Paper, Canberra, 2002) 9–12. 40   Political Parties Act 1967, s 2(1)(2) (Germany). 41   See G Roberts, ‘German Federal Republic: two-lane route to Bonn’ in Gallagher and Marsh (eds), above n 9. This chapter discusses an earlier version of the Electoral Act which the 1993 legislation consolidated. 42   This is a very Kelsenian view of the role of the party: see H Kelsen, General Theory of Law and State (Harvard University Press, Cambridge, Mass, 1949) 294, describing the party as ‘an essential vehicle for the formation of the political will’. 43   Schneider, above n 28, 527. 44   Ibid, 529. 45   Commonwealth Electoral Act 1918 (Cwlth), s 4.



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lation says something about its (perceived) place in the constitutional and legal order.

IV.  Models of Candidate Selection Challenge We turn first to the club law model, which sits neatly within the traditional approach to conceptualising political parties, then to the employment law model made infamous in the Jepson litigation and lastly to the quasi-public law model, Australian in its source but also applicable to the UK situation.

A.  The Club Law Model A political party’s candidate selection procedures will generally be found in its internal rules or, in the parlance of associations law, its contract.46 Accordingly, for those unhappy with the candidate selection process or outcome, the first hurdle to making use of the club law model is being a member of the club, since only members have privity of contract. This is akin to a form of locus standi requirement, and was demonstrated recently in two cases, one from the UK, the other from Australia. In Mortimer v The Labour Party,47 the Manufacturing Science and Trade Union (MSTU) sought a declaration that it was entitled to participate in the Labour Party’s selection process for the London mayoralty, despite being ineligible due to not having paid its affiliation subscription at the cut-off date. In the view of Jonathan Parker J, the annual subscription payment represented a yearly decision to enter into a relationship with the Party, and thereby to be entitled to benefit from its rules and process. In the absence of that payment, ‘no privity of contract existed between the [MSTU] and the Labour Party in relation to affiliation, nor can the [MSTU] assert any contractual right in relation to the selection process’.48 In Baker v Liberal Party,49 Baker attempted to join the South Australian branch of the Liberals. She was at the same time a member of the Sporting Shooters’ Association of Australia, which delivered her application. This was one of 500 from the Sporting Shooters delivered on the same day. Fearful of a takeover attempt on the branch by a single-issue group, the branch executive declined her application without giving reasons (along with the other 499). In dismissing Baker’s application for a declaration that she was entitled to reasons for the decision, and an opportunity to respond 46   Of course, the rules give only the skeleton of the process – the real choice of candidates may be driven by party policy (explicitly articulated and formalised as with Labour’s all-women shortlists, or the Conservatives’ priority candidates, or perhaps more opaque and unwritten), local or centralised concerns, and various biases and assumptions (conscious or not). 47   2000 Westlaw 538 (Ch). 48   Ibid, 5. 49   (1997) 68 SASR 366.

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to the application refusal, the court chose to characterise the Liberal Party as a ‘voluntary association’ and said that, as she was not a member, ‘no relationship known to law was ever established between [Baker] and the [Liberals]’.50 Specifically, ‘no question of contract, unilateral contract or election through invalid election arose’.51 These two cases reinforce the traditional view that once that barrier of membership is surmounted, the correct jurisdiction for parties is contract law. Now, assuming that a member, a party to the contract, is disgruntled with the selection process, how might it be challenged within this paradigm? The cases on political party disputes show that courts are highly cognisant of the political environment (and possible far-reaching consequences) of the litigation.52 As such, their decisions tend to be strictly drawn, leaving little room for claims that courts have interfered in the political process. Indeed, it is likely this concern that has driven and sustained the characterisation of party matters as private ones. Of the few cases involving intra-party disputes, even fewer address candidate selection matters. In the 1993 New Zealand case of Peters v Collinge mentioned above, the court went so far as to draw a bright line between parties’ private law activities and the public law of election. Peters’ rights as an about-to-be-expelled member of the National Party seeking nomination ‘were to be found in the express or implied terms of his contract with the other party members’.53 The court then found that the term in question (purporting to enjoin Peters not to stand against the National Party candidate) was ‘contrary to public policy and illegal’54 since no one could contract out of the right to be a candidate – it could not be bought or sold, or bargained away.55 To allow otherwise raised the prospect of the corruption of the electoral process.56 Thus, even within the bounds of club law, a party cannot completely control the candidate selection process – a rule attempting to curtail an aspiring representative’s right to stand for Parliament cannot be enforced.57 However, this approach still maintains the law’s traditional locus of interest at the electoral contest, rather than the pre-election contest. The court also commented on Peters’ natural justice rights, stating that it was the nature of the interest at stake, whether the deselection or non-selection would amount to a finding of mis  Ibid, 374.   Ibid.   Eg, in a case involving two factions of the Labour Party struggling for control of a local branch, Lewis v Heffer [1978] 1 WLR 1061, 1065, Lord Denning observed that ‘the outcome may influence the standing of the Labour Party in Parliament: and thus affect the policies of Parliament itself ’. The case was then decided according to proper construction of the rules relating to meetings in the standing orders of the Party’s ‘Yellow Book’. More recently, in Donaldson v Empey [2004] NIJB 1, which concerned a dispute over the direction of the Ulster Unionist Council, Girvan J said: ‘Although the dispute raises highly contentious political matters the court has no function of a political nature and must simply determine the legal question . . . In setting out its decision the court must studiously avoid expressing any view on the merits or otherwise of the political stances adopted by the parties in dispute. The decision of the court must not be interpreted as in any way reflecting a political decision.’ 53   Peters v Collinge, above n 38, 566. 54   Ibid, 565. 55   Ibid, 574.  56   Ibid, 564. 57   Similar non-compete clauses appear to be common in the UK but do not seem to have been litigated. 50 51 52



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conduct, and the severity of the sanction which would determine whether natural justice was available and to what extent.58 Outside that, a party was free to act as it wished, so long as it complied with its own rules.59 A similar view was taken in another New Zealand expulsion case 12 years later, Awatere Huata v Prebble, where the court noted: The court will enforce the agreement between the members of such bodies, including implied terms importing requirements of procedural fairness [but] associations will typically have wide freedom in their internal arrangements, including the determination of their membership.60

The most helpful discussion of the ambit of a party’s powers in the context of candidate selection comes from the Northern Ireland case of Weir v Harmon.61 Weir had been selected by the Unionist Association as the Ulster Unionist candidate for North Down. He was then suspended from membership following an investigation into some of his actions while a Member of the Legislative Assembly, which found him ‘guilty of actions detrimental to the interests of Ulster Unionists’.62 It was thought that this would adversely affect the party’s chances of electoral success. A meeting would then be convened to deselect him as candidate. Weir sought an injunction to prevent this meeting taking place. The clause in question employed by the committee to suspend him was clause VIII(K), which permitted the committee to ‘do all such acts as may be advisable for the carrying on of the business of the Association and for promoting its objects and interests’. Girvan J viewed the discretion open to the selection committee under this clause as a wide one and as extending to matters of deselection as well as suspension: It may become manifestly clear that a selected candidate is unsuitable as a candidate for a variety of reasons such as his conduct, behaviour, past connections, mental abilities and so forth.63

These comments could be equally well applied to the process of selection, and indicated the range of matters upon which a selection committee could make its choice. This did not mean, however, that it was a completely unfettered discretion: ‘[T]he power to deselect which arises under Clause VIII(K) would have to be exercised for a proper purpose.’64 For example, simply to seek to remove a selected candidate because a new majority disagree with the views he held to the knowledge of the Association at the time of his selection would not be a proper exercise of the power for a proper purpose.65   Peters v Collinge, above n 38, 567.   Ibid, 574. 60   Awatere Huata v Prebble, above n 35, 309. 61   [2001] NIJB 260 (Ch). 62   Ibid, 261. 63   Ibid, 267. 64   Ibid. 65   Ibid. 58 59

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This apart, it would appear very difficult to challenge a selection committee’s views that a particular candidate was more or less suitable than another. Girvan J concluded by noting that natural justice was not available to Mr Weir, as he was no longer entitled to the rights consequent on membership.66 Outside the question of rule construction, next comes the matter of procedural rights. Three English cases all raised the question of the availability of natural justice: Fountaine v Chesterton,67 where Fountaine attempted to injunct the local party chair from expelling him for insubordination; John v Rees,68 in which various local committee members were elected, in spite of the chair purporting to adjourn a rather heated meeting (and were later suspended by the national executive); and Lewis v Heffer,69 where the national party executive suspended the committee and officers of a local factionalised branch pending an inquiry. Without specifying the aspect of natural justice involved, in Fountaine v Chesterton it was said that natural justice could not be excluded unless the drafting of the constitution showed that ‘that was the plain and manifest intention’,70 while in John v Rees the suspension was declared a nullity in the absence of natural justice being afforded to the suspendees, even though the relevant clause allowed the national executive to take ‘any action it deems necessary’.71 In John v Rees, Megarry J, in justifying the natural justice requirement, indicated that even though the litigants’ relationship was ‘doubtless founded on the basis of a contract; but in many cases it is not merely a contract’, and although the law might be willing to ‘recognise the discharge of a contract by repudiation, it is far less ready to accept that there has been a forfeiture of other rights’.72 However, Lord Denning in Lewis v Heffer distinguished the comments of Megarry J in John v Rees, and held that natural justice was not required in the circumstances.73 It is not until the case of Hudson v GMB,74 which, while not strictly a party case, did involve a union member challenging the withdrawal of her position as a delegate to a regional Labour Party conference, that more was said about the circumstances in which natural justice may be available. Although it was not available here, since being a delegate was not an ‘office or representative position within the union’,75 Hoffmann J said that the following factors should otherwise be taken into account: ‘the financial consequences for the person in question, and the extent to which the position is formalised by the rules of the organisation, its permanence and its status in the hierarchy’.76   Ibid, 267–68.   Fountaine v Chesterton (1968) 112 Sol J 690, Megarry J. 68   John v Rees [1970] 1 Ch 345, Megarry J. 69   Lewis v Heffer, above n 52. 70   Fountaine v Chesterton, above n 67, 691. 71   John v Rees, above n 68, 400. 72   Ibid, 397. 73   Lewis v Heffer, above n 52, 1073. 74   [1990] IRLR 67. 75   Ibid, 68. 76   Ibid. 66 67



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In the Northern Ireland case of Donaldson v Empey, the Ulster Unionist party was divided over its future policy direction. After various suspensions had been effected against a number of members, and disciplinary charges had been laid by the officers of the Ulster Unionist Council against Donaldson, the issue of natural justice arose again with regard to allegations of bias. The allegations arose because one of the members of the disciplinary committee, Fitzsimons, was the lead signatory to a letter requisitioning a motion of no confidence in Donaldson.77 Girvan J held that this conflict of interest met the test of apparent bias and prevented Fitzsimons from sitting on the committee.78 Furthermore, the facts surrounding the committee’s suspension decision revealed an impermissible element of predetermination, which created doubt as to the committee’s ability to arrive at an unbiased decision.79 Unsuccessful aspiring representatives will find little comfort in the extant jurisprudence of club law. This is reflected in the small number of cases on political party disputes generally. So long as a party acts within its own rules, and does so ‘properly’, it would seem there are few grounds upon which its choice can be litigated. With the exception of preventing a person’s candidature at all, as Weir v Harmon demonstrates, a party can generally run its selection processes how it pleases. The cases are mixed as to whether even a basic natural justice right is available. In some it is thought to exist beyond the ties of the contract, while in others it is the continuation of the contractual relationship which brings natural justice to bear (or not). Even within the confines of the contract, the degree of natural justice will depend on the circumstances. However, here there is some hope, for the cases seem to agree that the importance of the matter at stake and its position within the party is a very relevant factor in the granting of natural justice. It would therefore seem reasonably feasible to mount a case that in a safe seat, the consequences of being selected or not do give rise to a natural justice right. However, countering this, it would also be easy to argue that this had been satisfied during the selection process, when hopefuls present themselves to the selection committee or relevant party members and argue their case for selection. The narrowness of this jurisdiction and its tightly-drawn rulings most likely account for the fact that this model has not yet been successfully invoked to challenge a non-selection. At best it might prevent a political party from taking a decision in a completely arbitrary way, or making a selection with an improper purpose. Yet even then, it would seem that any ability to challenge the exercise of the rules may rest on continued membership of the party.

  Donaldson v Empey, above n 52, 6.   Ibid. 79   Ibid. 77 78

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B.  The Employment Law Model Taking a candidate selection decision to the employment tribunal does not seem to have occurred before the Jepson case. Presumably, the choice of forum had its basis in the need to invoke the provisions of sex discrimination law, which at the time could not be applied to clubs.80 They did, however, apply to the employment field. This decision was to have far-reaching implications, and has diverted much legal energy away from the potential opportunity to develop the law on candidate selection in a reflective and principled manner. Jepson argued that by not being able to participate in the selection process for two constituencies which had been chosen for the all-women shortlist policy, he had been discriminated against on the basis of sex in the employment field. This was not permitted, he claimed, because the Labour Party was caught by s 13(1) of the Sex Discrimination Act 1975 which prohibited such acts by ‘an authority or body which can confer an authorisation or qualification which is needed for or facilitates engagement in a particular profession or trade’. His claim, which the Employment Tribunal accepted, was that being selected as a Labour candidate constituted an ‘authorisation or qualification’ (this being further defined in s 13(3) as including ‘recognition, registration, enrolment, approval and certification’) needed for engagement in the profession of being an MP. To deny him access to the selection process because he was a man was clearly sex discrimination. The Tribunal observed that even though MPs were ‘not, we readily accept, in employment’, they were part of the employment field, being ‘engaged in an occupation which involves public service and for which they receive remuneration from public funds’. It therefore drew a thin line between being employed (which an MP was not) and coming within the employment field (which candidate selection did). Mr Jepson’s experiences, fortunately for him, fell on the right side of the line. Despite the cloudiness of this distinction, since it was so close to the 1997 general election, the Labour Party chose not to appeal.81 The line of reasoning in Jepson was soon applied in other cases, notably in the area of race discrimination and local government,82 but also in relation to candidate job-sharing and the Scottish Parliament.83 In the Ahsan case, the line between employment and the employment field dissolved, with the Employment Appeals Tribunal holding in 1999 that being a councillor or a Labour councillor was a 80   But see the Consultation Paper from the Department for Communities and Local Government, A Framework for Fairness (June 2007) 154–57, proposing an extension of anti-discrimination laws relating to sex, religion and belief to private clubs and associations. These proposals may now be found in Pt 7 of the Equality Act 2010, which includes registered political parties in the definition of associations if they have at least 25 members, have a set of rules and regulate admission to the association. 81  Russell, Women’s Representation in UK Politics, above n 2, 26. 82   Sawyer v Ahsan [1999] IRLR 609; Ishaq v McDonagh (Hull ET, 24 March 2000) reported in (2000) 45 EOR Discrimination Case Law Digest 5. 83   Mann v Secretary of State for Scotland (Edinburgh ET, 15 November 2000).



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‘profession’ or an ‘occupation’ for the purposes of race discrimination laws.84 This case was also not appealed,85 and another successful challenge was mounted to a non-selection as a Labour councillor in McDonagh v Ali.86 A body of jurisprudence was quickly amassing, making it relatively straightforward for potential candidates who felt they had been discriminated against to challenge their non-selection. Although it did not assist those who felt their non-selection was due to other reasons, the increasing importance attached to identity representation in politics generally meant that litigation in the employment tribunals was becoming the natural choice for those wishing to dispute the selection decision. Finally in response to Jepson, Parliament enacted the Sex Discrimination (Election Candidates) Amendment Act 2002, which exempted political parties from the provisions of the 1975 Act when engaging in candidate selection. Then also in February 2002, the Court of Appeal gave judgment in the Labour Party’s appeal from McDonagh v Ali,87 effectively overturning the Jepson approach in race-based challenges. The Court criticised the view that candidature came within the employment field ‘even in a wide or loose sense’,88 said it was doubtful that being a councillor, even less so a Labour Party councillor, was ‘being engaged in a profession or occupation’89 and, as a final rebuff to the entire basis of the litigation, opined that it could not accept that the Labour Party’s selection activities came within the proper intendment of the Act.90 Support for this result was forthcoming from other bodies, indicating that the conceptualising of a candidate as an employee was misplaced. The European Commission had much earlier given its opinion on whether being a representative fell within the scope of employment law, clearly stating in response to a question about Jepson in 1996 that ‘candidature for election is not an employment relationship’,91 and repeated this in response to another question in 1998 during the debates on the amendment to the Sex Discrimination Act.92 The candidate selection as employment argument had also been rejected in Australia, in the case of Scott v Gray.93 In that case, Ms Scott complained that certain   Sawyer v Ahsan, above n 82, 612.   This case has had a very complicated procedural history. It was first litigated as Sawyer v Ahsan on the jurisdictional point, which, as noted, was decided in favour of Ahsan, the claimant. The question of actual race discrimination was heard in the Employment Tribunal in 2001. Ahsan was successful in both the Employment Tribunal and the EAT, but the Labour Party then appealed on the basis that the Court of Appeal decision in McDonagh (see text below), given before a judgment had been issued but after the hearing in Ahsan, had removed the EAT’s jurisdiction to hear the merits of the case. The Court of Appeal agreed, and also found that in any case, no race discrimination had occurred (Carter v Ahsan [2005] ICR 1817). Ahsan then appealed both points to the House of Lords (see text below for an analysis of this judgment). 86   McDonagh v Ali (EAT, 10 April 2001). 87   [2002] IRLR 489. Leave to appeal to the House of Lords was refused: Ali v McDonagh [2003] ICR 88 (HL). 88   McDonagh, above n 87, 494. 89   Ibid, 494–95. 90   Ibid, 495. 91   Commissioner P Flynn, Question 96/C 305/07 (February 1996). 92   Commissioner P Flynn, Question E-1556 (June 1998). 93   (1999) HREOC H98/76. 84 85

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comments made about her by Mr Gray, the National Secretary of the Australian Labor Party, had adversely affected her chances of selection as the candidate for the seat of Oxley on the basis of sex and marital status (her husband having previously held the seat). The case was not heard by an industrial tribunal but by the federal Human Rights and Equal Opportunity Commission. Nonetheless, the Inquiry Commissioner held that ‘a person seeking political office as a member of Parliament does not seek to become an employee of the Commonwealth’.94 This was because: whilst it can be assumed that the payment of the person’s salary and matters relating to superannuation are paid from monies appropriated by the Parliament, the critical indicia which characterise the relationship of employer/employee are absent. The capacity to control and direct the actions of the employee which are the defining characteristics in the usual employer/employee relationship can have no possible reference to an elected Member of the Parliament . . .95

The most recent word on the subject of jurisdiction comes from the November 2007 House of Lords decision in Watt (Carter) v Ahsan, litigation which was undertaken in parallel to McDonagh. In Ahsan, Lord Hoffmann endorsed the approach taken in McDonagh and agreed that candidate selection was not an ‘authorisation or qualification’ for the purposes of employment.96 This phrase, he said, suggested some objective, transparent test which could be administered in an even-handed way and passed or failed. This, however, was not the reality of candidate selection. This was likely to be decided on the basis of popularity – in the electoral calculus, which candidate would be most likely to win? Having dismissed employment law as the correct jurisdiction for candidate selection race discrimination claims, Lord Hoffmann allayed fears that racial discrimination would be permitted in selection contests by highlighting the prohibition against such behaviour in the Part of the Race Relations Act 1976 dealing with incorporated and unincorporated associations. The correct forum was therefore the county court,97 and the right field of law was club law. This effectively takes us back to the pre-Jepson position.

Conclusion Being a representative has become more professionalised and developed the trappings of regular employment which are sought after by a select group of individuals. The relative scarcity of these positions seeds the application and selection process with the potential for conflict. However, we must be careful not to elide, as the Employment Tribunal did, the trappings of employment with employment as traditionally and legally understood.

  Ibid, para 5.1.   Ibid. 96   Watt (Carter) v Ahsan [2007] UKHL 51, para 18. 97   Ahsan had also brought proceedings in the county court, but these were on hold pending the resolution of the employment litigation. Ibid, para 27. 94 95



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Conceiving of the representative as an employee is well outside the bounds of traditional understandings of the representative’s role. Only an MP who adopted an extreme version of the role of (party or locality) delegate could be thought of in this way, if at all. However, while MPs certainly view their constituency role as a very important one, representatives who see themselves as in the Commons solely to do their putative ‘employer’s’ bidding are rare. More prevalent is the view that the role of a representative is one founded on trust, allowing the MP some degree of flexibility as to how she will carry out her role. Moreover, as was pointed out in Scott v Gray, it cannot be said that the typical markers of an employment relationship are present in the work of an MP. The content of what might be termed the ‘job description’ for a representative is far from settled. A representative may be several different types of representative at once. She may have a number of different ‘bosses’ – local, national, party, individuals and communities – all of whom expect different things. And questions such as who disciplines the wayward representative, to whom is she accountable and when, what is the term of employment, who may direct the representative’s actions, and what are her working hours and entitlements, cannot be answered with reference to standard employment law.98 Parliament is not a corporation, and its members are far from employees. The resemblance is, at best, superficial.

C.  The Quasi-public Law Model The traditional legal model for parties is premised on their having a private status. Given the role that parties play in civil society and, especially in their function of providing candidates for Parliament, their impact on public life, the ascribing of a private status and the overlaying of a private law model onto their activities may seem somewhat curious. Nevertheless, this private law model was certainly the one subscribed to by the Australian High Court when it came to decide the case of Cameron v Hogan.99 Hogan was the Premier of the state of Victoria from 1929 to 1932. He was expelled from the Victorian branch by the central executive of the Australian Labor Party because he supported a plan to reduce wages, pensions and interest as way to address the severe financial hardships brought on by the Depression. He attempted to sue the central executive, seeking damages, a declaration and an injunction. At first instance he succeeded in part, based on the usual club law approach. The central executive appealed. At this point, the court took the private law model to a startling conclusion.

98   Similar issues have been grappled with recently in relation to the status of clergy and the proper forum for ecclesiastical disputes (as opposed to doctrinal ones). See Percy v Board of National Mission Church of Scotland [2005] UKHL 73 and the continued discussion of these issues in New Testament Church of God v Stewart [2007] EWCA Civ 1004. 99   (1934) 51 CLR 358.

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A majority of the High Court said that the contract jurisdiction could be invoked only where the plaintiff also held a proprietary interest in the club’s property.100 This was because the existence of a property right indicated an intention to create legal relations, and it was on that basis that the rules could be treated as an enforceable contract.101 One of the judges took the position even further and stated that ‘the rules of a voluntary association organized for political purposes are not agreements enforceable at law, or in other words, contracts’.102 Since the funds of parties are generally held for the benefit of the party or some wider social purpose rather than for the members, with these words the court effectively foreclosed the opportunity of litigating any dispute within a political party, let alone a candidate selection decision.103 It is possible to argue that the reliance on the proprietary interest is simply misplaced or outdated; a reversion to modern club law is therefore all that is needed to fill the lacuna created by Cameron v Hogan. But is this the most appropriate way to deal with the legal status of political parties? While not a political party case, in McKinnon v Grogan104 Wootten J directly addressed this issue. Political parties were not a suitable subject for club law; they were of a different nature altogether and so: ‘the resultant categorization in legal analysis of a great political party . . . with a group of friends agreeing to meet for tennis, is simply inadequate’.105 Faced with apparently being completely ousted from party disputes, Australian courts have developed an alternative approach. It is worth considering, particularly because it has come from litigation over candidate selection. The first direct challenge to the Cameron v Hogan approach came in the Queensland Supreme Court case of Baldwin v Everingham.106 Baldwin was a Liberal Party member whose name was deleted from the list of potential candidates for the Queensland seat of Moreton. The party executive had done this because several years previously, Baldwin had been charged with forgery and conspiracy. It was thought that even though he had not been convicted, in a marginal seat such as Moreton this would seriously handicap the party’s electoral chances. Baldwin sought a declaration that the party’s own selection rules had been breached when this action was taken. Dowsett J acknowledged the precedential weight of Cameron v Hogan but chose not to follow it, saying: 100   Ibid, 369–70. Since the court concluded that Hogan had no such interest, he was therefore unable to sue. But see Lindsay, above n 33, 338, on the decline of the property requirement, on which development the court could have relied had it so wished. 101   Cameron v Hogan, above n 99, 371. 102   Ibid, 384, per Starke J. 103   It has been suggested that this extreme reluctance to become involved was based on the fact that two of the High Court judges had recently been Labor Members of the federal legislature: JRS Forbes, Judicial Review of Political Parties (Australian Parliamentary Library Research Paper, Canberra, 1996) fn 15. 104   [1974] 1 NSWLR 295. 105   Ibid, 297. 106   [1993] 1 Qd R 10.



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On general principles, where an albeit voluntary association fulfils a substantial public function in our society, it may appear indefensible that questions of construction concerning its constitution should be beyond judicial resolution. . . . a major national organisation with substantial assets, playing a critical role in the determination of the affairs of the country should [not] be so immune.107

He took support for this view in the dissenting comments of Lord Denning in Breen v Amalgamated Engineering Union,108 discussing the powers of various bodies, including those subject to club law, such as the Jockey Club and the Football Association. Although the comments in Breen were directed at a trade union, they were seen by Dowsett J to apply with equal force to political parties and their selection committees. Lord Denning said: All these delegate power to committees. These committees are domestic bodies which control the destinies of thousands. They have quite as much power as the statutory bodies of which I have been speaking. . . . Often their rules are framed so as to give them a discretion. They then claim it is an unfettered discretion with which the courts have no right to interfere. . . . They are not above the law, but subject to it.109

Dowsett J then bolstered his first principles approach to jurisdiction by referring to the increasing legal regulation of political parties110 – the existence of a statutory definition for parties, the requirement to be registered, and the provisions for election funding and disclosure of donations and expenditure – before concluding that: disputes concerning the rules of political parties registered under the Commonwealth Electoral Act are now justiciable. This conclusion differs from Cameron v Hogan not because changing policy considerations dictate a different result, but rather because the Commonwealth Parliament, in conferring legislative recognition upon political parties has taken them beyond the ambit of mere voluntary associations.111

A series of cases adopting this approach followed.112 Two years later in Thornley v Heffernan,113 Thornley, as sitting MP, was disendorsed for selection by the Federal Key Seats Committee after an audit which found her to be underperforming. A new candidate was selected by the local executive without input from branch members. At the preliminary hearing on jurisdiction, Brownie J referred to the statutory position   Ibid, 17.   [1971] 2 QB 175. 109   Ibid, 190. 110   Baldwin v Everingham, above n 106, 15–17. 111   Ibid, 20. 112   For commentary on these cases, see G Johns, ‘Clarke versus Australian Labor Party’ (2000) 32(1) Australian Journal of Political Science 137; G Johns, ‘Desirability of Regulating Political Parties’ (2001) 8(4) Agenda 291; G Orr, ‘The law comes to the party’ above n 11; S Tully, ‘Party Registration and Preselection: A Minefield for Electoral Administrators?’ in G Orr, B Mercurio and G Williams (eds), Realising Democracy (Federation Press, Sydney, 2003). In one of the cases, Sullivan v Della Bosca (1999) NSW Sup Ct 136, the question of jurisdiction was assumed without argument, demonstrating how accepted the ‘statutory incorporation’ approach had become. 113   (1995) NSW Sup Ct BC 9505091. 107 108

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of parties and declared the Baldwin approach to be ‘sound’.114 In the 1999 case of Clarke v Australian Labor Party,115 which concerned allegations of a wave of new members being brought in to influence the candidate selection process, Mullighan J placed particular emphasis on the provision of election funding as a reason to follow the ‘statutory recognition’ basis for jurisdiction. By 2001, Muir J in Tucker v MacDonald, where candidate selection was again to take place by the local executive alone, simply acquiesced in the growing weight of precedent and allowed the case to proceed.116 This approach seems to becoming more and more orthodox, and not just a flash in the legal pan.117 The July 2007 case of Coleman v Liberal Party provides a tidy summary of the justifications for court intervention on a public law basis: [T]he reality [is] that certain decisions of a political party’s internal process – such as those relating to selection of candidates for election, for example – are in truth not private matters at all; they are very public, particularly when there are disputes between factions. In such circumstances, a political party may regard it as highly expedient in order to quell faction-fighting that the final decision on the Constitutional validity of its internal proceedings be left, not to a domestic tribunal constituted by party members whose impartiality may, however unjustly, be called into question but, rather, to a Court whose impartiality is beyond any question.   Judges have called attention to the fact that a modern political party registered under the legislation governing elections is in itself an institution whose internal stability and good governance is important in the democratic process. . . . Accordingly, there is a public interest in ensuring that a registered political party, which is entitled to funding assistance for electoral expenses from public monies, is administered in accordance with a correct construction of its rules.118

With jurisdiction under public law established, the cases were usually decided according to an analysis of what had transpired under the parties’ rules. Although the prospective candidates met with mixed success, the different approach to judicial oversight opens up a new vista on the electoral law landscape. Moreover, the continued use of contractual analysis suggests that the traditional model need not be completely abandoned.

V.  Parties and Public Law in the UK A.  Statutory Incorporation in the UK119 Could the Australian model be applied in the UK? The Australian approach to jurisdiction relies heavily on statutory regulation of parties. However, UK political   Ibid, 4.   (1999) 74 SASR 110, 139. 116   [2001] Qd Sup Ct 6735. 117   See also Galt v Flegg [2003] Qd Sup Ct 290; Daley v Newnham [2005] Vic Sup Ct 303. 118   [2007] NSWSC paras 47–48. 119   In the UK, in the context of cases deciding whether a private body might be subject to judicial review, this is known as the ‘statutory underpinning’ test: see, for example, R v Legal Aid Board, ex p Donn [1996] 3 All ER 1, 8–9. 114 115



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parties under the club law model have been described as being in one of the least regulated jurisdictions in Europe.120 The light touch of the common law mirrored the statutory approach. However, the Political Parties, Elections and Referendums Act 2000 represents a turning point in thinking about the legal status of parties. While, as demonstrated earlier, the UK does not go as far as some nations – for example, there is no precise statutory definition of a political party121 – there is now, I consider, a framework of regulation sufficient to uphold this alternative model. Indeed, the coverage of the 2000 Act aligns neatly with the criteria set out in Baldwin for assuming a public law jurisdiction, ie registration, funding and donation disclosure regimes, and general incorporation with a statutory framework of regulation. The Political Parties, Elections and Referendums Act 2000 provides a scheme for the registration of political parties122 and the regulation of some aspects of their finances, in particular accountability for the sources of their funds in the form of donation disclosure requirements and publication of their accounts. The Act is administered by a specifically-created Electoral Commission. With these changes, political parties have been brought into the public domain more than a strict contract law model might allow was appropriate. In addition to the existing regulation in the 2000 Act, the Equality Act 2010 contains provisions permitting positive discrimination in candidate selection contests. This development would further indicate that parties are not wholly creatures of private law. We now turn to examine some of the features of the 2000 Act in more detail. Although it is not compulsory to register a party, it brings with it certain benefits should a party wish to participate in wider political life. Only candidates of registered political parties are entitled to contest elections under the name of that party123 or use its emblems.124 State broadcasting services are not available to unregistered parties.125 Registration acts a form of trademark protection.126 Once a name is registered to one party, it cannot be used by anyone else, nor can a similar name that might confuse voters be registered by another body. Registration thus serves as a form of endorsement of the power of the party name; it also acknow­ ledges the rise of the political party in electoral life. Further, parties must register certain officers within the party, such as the leader and treasurer.127 120  KD Ewing, ‘Transparency, Accountability and Equality: The Political Parties, Elections and Referendums Act 2000’ [2001] PL 542. 121   Other than the very brief ‘any organisation or person’ (PPERA 2000, s 40(1)). Under s 28(2), registration has to be accompanied by a declaration that a party intends to contest an election, so it could be argued that the amalgamation of these two points creates a definition of a party as an organisation which intends to participate in an election. 122   Registration was actually introduced by the Registration of Political Parties Act 1998 but was voluntary rather than compulsory. The PPERA 2000 repealed and re-enacted with modifications the 1998 Act. 123   PPERA 2000, s 22. 124   PPERA 2000, s 29, 125   PPERA 2000, s 37. 126   Ewing, above n 12, 79. 127   PPERA 2000, s 24.

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What is particularly noteworthy is that an application to register a party must contain a copy of that party’s constitution or rule book.128 This would generally, and certainly in the case of major parties, include the rules relating to candidate selection. Although the constitution is not permanently lodged with the Electoral Commission, its inclusion in the registration application illustrates its importance in the process of what the Australian judiciary would call ‘statutory incorporation’. Registered parties are also subject to a series of financial controls. In fact, a party may not be registered unless it has adopted a scheme for regulating its financial affairs and this has been approved by the Electoral Commission.129 Parties must prepare and file a record of their accounts,130 disclose all national donations over £5,000131 and are subject to limits on their election campaign spending.132

B.  The Public or Private Nature of Political Parties? What justifications are there for reconfiguring the traditionally private status of political parties into something which acknowledges a greater public element? As the existence of the club law and employment law models demonstrates, it cannot be said that not to bring political parties within the public law fold will leave them outside the rule of law; the issue is one of their appropriate characterisation within law. This point was made some time ago, and the contract law model’s suitability questioned. For example, in the Breen case, after discussing the real power of the union committee, Lord Denning turned to the nature of the union rules: Their rules are said to be a contract between the members and the union. So be it. If they are a contract, then it is an implied term that the discretion be exercised fairly. But the rules are in reality more than a contract. They are a legislative code laid down by the council of the union to be obeyed by the members. This code should be subject to control by the courts just as much as a code laid down by parliament itself.133

This is very similar to the comment of Megarry J only a year earlier in John v Rees,134 that the rules of a party were ‘in many cases . . . not merely a contract’. This gives rise to the question: If they are something more than mere contract, what are they? Where do parties and their rule books fit in the legal order? Are they private or public in nature? A major phenomenon in recent public law jurisprudence has been the blurring of the line between private and public entities. Courts are increasingly prepared to recognise that a private body may exercise power in the public sphere, and thus be   PPERA 2000, Sch 4, Pt 1, para 5(1).   PPERA 2000, s 26(1). 130   PPERA 2000, Pt III. 131   PPERA 2000, s 62(4). 132   PPERA 2000, Pt V. 133   Breen v Amalgamated Engineering Union, above n 108, 190. 134   John v Rees, above n 72. 128 129



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subject to the rules of public law. The classic example of this is the case of R v Panel on Takeovers and Mergers, ex p Datafin.135 That case, where the Takeovers Panel was held to be judicially reviewable, despite being an unincorporated association with no common law, statutory or prerogative powers, underscores the point that such bodies need not be regulated by club law – there are other models for legal oversight. There are two main limbs of justification put forward in Datafin for assuming public law jurisdiction over a purportedly private entity. These are the source of the power under which the body acts or acts within,136 and whether its functions are public in nature.137 Traditionally courts will refuse to entertain a judicial review application where the powers of the impugned body are sourced wholly in contract.138 This is the reasoning which had placed parties under club law. However, this view is being strained in the field of club law,139 and with regard to political parties cannot be sustained in the face of developments in electoral law, which are increasingly recognising the role parties play in elections. The ability of parties to select their candidates and contest elections is still dealt with by the parties’ internal rules, but they act against a statutory backdrop: candidate selection is no longer the exclusive purview of contract law. Even when operating within the sphere of contract law, some judges in earlier cases queried whether this was the whole picture. Now the Political Parties, Elections and Referendums Act 2000 has changed the legal mix. Parties have been drawn into a web of State regulation of their activities. In relation to candidature specifically, they cannot put candidates up for election under their party name, or use their emblems on the ballot, unless they have been registered with the State. They must also comply with the various common law and statutory restrictions on candidate eligibility, or risk seeing their candidates disqualified in an election petition. Thus, it may be said that parties’ legal relationship with candidates is partially contractual, but it is now also partially statutory. This strengthens the case for placing this aspect of parties’ activities under the public law umbrella.

  [1987] QB 815.   Ibid, 847, per Lloyd LJ. 137   Ibid. 138   But see, eg, the case of Finnigan v NZ Rugby Football Union [1985] 2 NZLR 159, 179, where a public law injunction preventing the All Blacks’ tour to South Africa was granted, on the basis that this was ‘a special area where, in the New Zealand context, a sharp boundary between public and private law cannot realistically be drawn’. See also recent developments in the UK, where the courts have decided that a private company organising farmers’ markets was susceptible to judicial review (Hampshire County Council v Beer [2003] EWCA Civ 1056), even though it was a private body with no statutory underpinning and its functions were not woven into a system of governmental control (applying the ‘public functions’ test from Datafin). 139  In Bradley v The Jockey Club [2004] EWHC 2164 (QB) at [37] Mr Justice Richards said: ‘I would consider it surprising and unsatisfactory if a private law claim in relation to the decision of a domestic body required the court to adopt a materially different approach from a judicial review claim in relation to the decision of a public body.’ 135 136

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The other aspect of the limb is the public nature of the body in question. A tidy definition of what is meant by ‘public function’ has proved elusive for the courts.140 In Hampshire County Council v Beer, this was said to involve a consideration of whether the decision ‘has a sufficient public element, flavour or character to bring it within the purview of public law’.141 Although the common law in the UK and New Zealand seeks to maintain the idea that parties are private, the better view is that political parties are not, as has been said so forcefully by Wootten J, in the same realm as a tennis club.142 As explained below, there is a marked ‘public flavour’ to their candidate selection activities. Political parties are the conduit to Parliament; they are the means by which private individuals in their role as electors transfer their power via representatives to the State; and ‘they are the transmission belt for the development and carriage of policy into legislation and practice’143 (that is, parties take ideas from the status of private thought to public legal enforceability). Parties end up as the wielders of legal sovereignty in a nation: an individual Prime Minister may be deposed, but the party remains in government. With the rise of party politics, the vast majority of voters vote for a party, and are loyal to that party label rather than to those individuals who wear it. Although one could conceivably become a member of the House of Commons without political party assistance, instances of this occurring are rare. Parties dominate the electoral contest. Thus it is parties who decide who will become members of the legislature, arguably the most important, and indisputably public, body in the nation. It is parties which fill the legislature and form the government, either alone or by arrangement with other parties. The results of their candidate selection or deselection decisions have much wider ramifications than the immediate membership of the party. Political parties are also different from other types of associations, in that their activities are not carried out for profit or on a commercial basis, and their driving force is to act in for the public benefit (as each party might conceive it). It is therefore difficult to maintain the fiction that they are no more a public body than the local birdwatchers’ society. The fact that this public power begins in a private context does not alter its nature. Giving force to this argument is the increasing support for political parties for their activities, especially in the form of State financial and broadcasting assist­ ance. The rationale behind this level of financial scrutiny and control is the need to ensure transparency in the dealings of parties and to hold them to account, 140  See ex p Donn, above n 119, 9: ‘[I]t is common ground that the answer to this question of sufficient public law element admits of no universal test.’ 141   Hampshire CC v Beer, above n 138, at [15]. At [14], the test for reviewability and the test for ‘public authority’ under the Human Rights Act 1998 were said to be ‘for practical purposes, the same’. On another occasion, the question was framed as whether the function was ‘more properly analogous to a governmental one’: ex p Donn, above n 119, 10. 142   McKinnon v Grogan, above n 104, 297. 143   Ewing, above n 120, 544.



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thereby avoiding the corruption of the political process and the manipulation of public life for private ends. This assists with compliance with the obligation on States to hold free elections under the ECHR, and further bolsters the case that, despite the comments in New Zealand’s Peters v Collinge,144 parties are part of the public law of elections. While UK political parties do not yet receive the kind of bulk state funding available in many other nations,145 parties and candidates do receive other forms of state-funded assistance, in the form of free electoral communications to constituents and use of meeting rooms. Parties also benefit from a requirement that public service television broadcasters and national radio services carry party political broadcasts. This underscores the important role that parties play in the public life of a nation, and undermines claims that they are simply associations of individuals, gathered together for personal (albeit political) reasons. Where parties accept public assistance, or at the least submit to public regulation, but are unwilling to give up their private law status, this runs the risk of creating an imbalance in the legal order. Gary Johns terms this an ‘asymmetry’ in the regulatory model,146 and indeed it is difficult to sustain in principle a model where parties are deemed of sufficient public importance that they receive public funds for their election activities, but cannot be regulated according to public law norms in relation to their preparatory work for that election in selecting candidates to contest it. This criticism applies whether there is no regulatory model for parties, as in Australia, or where it is one of private law, as in the UK. And, where parties’ disputes have been decided outside the public law paradigm, we see evidence that courts are not entirely comfortable with this approach. In the context of contract law, courts seem drawn to refer to administrative law concepts in their judgments. Natural justice dominates, with mention of bias and predetermination, but there are also references to improper purpose, and to the fair or proper use of discretion. This points to an awareness that there is some public law element to these disputes. Parties may purport to be private bodies, and courts deciding club law cases may downplay or explicitly avoid straying into the political aspects of the dispute, but the public law nature of these disputes nonetheless runs through the judgments. Indeed, there is a case to be made that the reluctance to engage with the political questions is simply evidence of the courts’ recognition of non-justiciability, the courts’ preferring to deal only with the legal aspects of a public law case which are properly within their competence to decide. This unease with the private law model is also true of the employment cases. The emphatic rejection in McDonagh, and then in Ahsan, of the idea that candidate selection or being a representative had anything to do with employment (see   Peters v Collinge, above n 38.   See Sir Hayden Phillips, Strengthening Democracy: Fair and Sustainable Funding of Political Parties (HMSO, London, 2007) 17–20, suggesting an increase in public funding for parties which would be linked to their level of support in elections. 146   G Johns, ‘Political Parties: From Private to Public’ (1999) 37(2) Commonwealth and Comparative Politics 89, 104. 144 145

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section IV.B. above) may be overstating the case somewhat, but it displays an acknowledgement that while being a candidate or representative is a form of work, it is a unique field of endeavour that does not sit well with traditional understandings of employment, ie the nature of ‘employment’ as a representative must be regarded as a sui generis type of employment not subjectable to typical labour laws. The position of representative has been referred to as one of public office.147 This is more in alignment with the law’s demonstrated approach to theories of representation – it does not detract from the increased professionalism of the role, it conveys the position of trust a representative holds with respect to his or her constituencies, and it better reflects the role of the representative in the workings of State.

C.  The Implications of Quasi-public Status What might it mean to shift our legal focus from private to a more public law approach? It is not being argued here that one model should completely replace another. Rather, what is required is a more nuanced approach that realises the mixed nature of the world in which parties operate. Accordingly, parties would remain private bodies for some matters; but where choosing and putting forward candidates for public office is in issue, parties’ role in public life would be acknow­ ledged. Specifically, Lord Lester has argued that ‘political parties are private for most purposes, but not when they are selecting candidates for office’.148 One of the benefits of this approach is that bringing the jurisprudence of public and private law together makes for a more comprehensive and less fragmented body of law with respect to candidate decisions. Under a quasi-public law model, parties would perform their candidate selection activities under the terms of their agreed rules but according to public law standards.149 This compromise maintains parties’ abilities to regulate their own proceedings, but does not give them carte blanche to act as they please. It would require parties to conform to public law standards of lawfulness, fairness and proper exercise of their discretion in choosing candidates.150 Whether a decision is reasonable or not is probably not an appropriate area for judicial decision, and a high level of deference should be shown to parties here, lest the courts begin to   This was the approach taken by the Labour Party’s counsel in Jepson, above n 1.   Hansard HL, 20 December 2001, col 400. 149   This is already beginning to occur in relation to other bodies covered by clubs law: see Bradley v Jockey Club, above n 139, at [37] and [41], citing Lord Woolf in Modahl v British Athletic Federation Ltd (Court of Appeal, 28 July 1997): ‘The question of whether a complaint about the conduct of a disciplin­ ary committee gives rise to a remedy in public law or private law is often difficult to determine. . . . I can see no reason why there should be any difference as to what constitutes unfairness or why the standard of fairness required by an implied term should differ from that required of the same tribunal under public law.’ 150   It is not suggested that the UK go so far as to adopt the model employed in Queensland, where parties are required to have a constitution that complies with several requirements as a condition of registration. For details see Ewing, above n 12, 245–46. 147 148



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engage in merits review of selection decisions. This would also maintain the boundary between the legal questions, which it is appropriate for a court to decide, and the political ones, which are rightly in the hands of the party. It would also assist in maintaining the traditional autonomy over their affairs courts have traditionally afforded to parties.151 Furthermore, it would address the confusion in the law as to whether excluded candidates are entitled to enjoy certain benefits such as natural justice, since these would no longer depend on the existence of a contractual relationship. The adoption of a public law model may raise the issue of the role of the ECHR and the candidature right in P1-3.152 How might parties have to behave to ensure that their selection processes do not unduly infringe this right? This was considered briefly in the New Zealand case of Peters v Collinge.153 However, since the judge was firmly of the opinion that parties had no role to play on the public stage, it was pursued only to the extent of ruling that parties cannot prevent an individual from standing. Case law on the candidature right indicates that representatives should be morally upright and trustworthy – a party will therefore be justified in requiring these qualities in those it selects to contest an election. Community ties have also been identified as an acceptable requirement. By way of example, the European Court of Human Rights has approved requirements that a candidate be a national154 and speak the official language of the State in question.155 This may have implications for a party wishing to appeal to a particular minority commun­ ity by selecting a candidate closely identified with them, be it an inner-city Bangladeshi community or a remote Welsh-speaking constituency in Wales. Opening up selection procedures to human rights law may also mean that candidates have access to the anti-discrimination provisions of Article 14 ECHR.156 This is not only a more principled way of dealing with the issues raised by parties’ policies to address identity representation concerns, it deals with the problem that may arise with any expiry or repeal of the Sex Discrimination (Election Candidates) Act 2002. Rather than returning to the pre-Jepson situation with the possibility of more imaginative litigation over identity representation, or re-enacting the current legal position in which parties must comply with sex discrimination law for   Ibid, ch 4.   Being able to bring a case on this ground would depend on satisfying the test in the Human Rights Act 1998 of being a ‘public authority’ under s 6(1) on the basis that the party was performing ‘functions of a public nature’ (s 6(3)(b)). While the test is not the same as that for judicial review proceedings, there are some similar considerations, which it is arguable political parties might meet. In YL v Birmingham City Council [2008] UKHL 27, Lord Mance, at [103]–[105], identified some of the ‘hallmarks of a public authority’, these being: special duties or powers, democratic accountability, public funding in whole or in part, an obligation to act only in the public interest and a statutory constitution; but he concluded that ‘in every case, the ultimate focus must be upon the nature of the functions being undertaken’. The Human Rights Act 1998 also seems to exclude from its ambit unincorporated associations, so parties could be challenged only if incorporated, or if a representative individual were sued. 153   Peters v Collinge, above n 38. 154   Ganchev v Bulgaria (1996) App 28858/95; see also Melnychenko v Ukraine (2006) 42 EHRR 784 on residency requirements. 155   Podkolzina v Latvia [2002] ECHR 405. 156   Lord Lester, Hansard HL, 9 July 2001, col 991. 151 152

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some purposes but not for others, the fact that discrimination is allowed under the European Convention on Human Rights if proportionate and undertaken to achieve a legitimate aim means that parties may well be free to take more extensive and direct measures to improve the representation of under-represented groups. Some limited measures in this regard are proposed in the Equality Act 2010, but opening up parties to human rights law would give them more freedom to tailor their selection processes to their constituents – be that on a national, local or identity basis. Also relevant is the right of freedom of association in Article 11 ECHR. Parties or local branches could use this right to argue against the compelled selection of certain candidates (or candidates holding certain pre-determined characteristics).157 The ECtHR recently referred to parties’ rights to negative freedom of association, noting that parties can regulate their membership as they see fit, particularly with regard to political beliefs.158 This may have some impact on factionalised struggles or control over the selection process.

VI. Conclusion The selection of parliamentary candidates is one of a political party’s most import­ ant extra-parliamentary roles. Through candidate selection, parties are able to fine-tune their public image and perhaps enlarge their share of the vote, and at the same time settle intra-party disputes over direction and policy. In more recent years, candidate selection processes have been affected by new developments in political theorising about the proper role of representatives. No longer is territorial representation the only or prime consideration; parties now also consider an individual’s ties to a social identity group, as well as party linkages. When this is coupled with the rise of representation as a professional career, it seems that in the last two decades potential candidates are increasingly willing to litigate both the process and the outcome of their party’s selection contests. When the three models employed so far to challenge candidate selection contests – the club law model, the employment law model and the quasi-public law model – are examined, the lack of principle and consistency in the law’s approach so far is obvious. It is time that the fiction that parties are solely creatures of private law is abandoned, and instead a public law approach to candidate selection disputes adopted.

157   It was this sort of concern that led to the exemption of all-female shortlists in candidate selection from sex discrimination laws: Sex Discrimination (Election Candidates) Amendment Act 2002. Arguments have also been made that all-black or ethnic minority shortlists should be adopted, which would require an amendment to the Race Relations Act 1976. See Dodd, above n 2. The Equality Act 2010 permits reserved places on shortlists, but not all-black or ethnic minority shortlists. 158   ASLEF v UK [2007] ECHR 184, para 39.

Conclusion 129 The advantages of adopting the latter approach are that this step would acknow­ ledge the role that parties play in public life and in the electoral system in particular. It is a more legally accurate representation of the role parties have in the electoral process. In addition, it would allow for the infusion of public law principles into this area, while permitting parties to retain their self-derived and tailored rule-based processes of selection. It would require parties to observe the requirements of natural justice and legality as they go through their selection processes; it would also mean that parties would come within the jurisdiction of human rights laws. As candidature is already the subject of a growing body of ECHR case law, this provides the courts with an opportunity to marry these two bodies of law in a consistent and coherent way.

6 Removal from Parliament The law of elections has its most active role when it comes to determining who might enter Parliament. Once ensconced on the parliamentary benches, the focus usually turns to the electorate’s power of removal of MPs via the ballot box. Nevertheless, at this stage too, there is a role for the law. The power to remove MPs from Parliament during the parliamentary term is mostly in the hands of Parliament, under its ancient privilege of regulating its own composition; however, new proposals from the Conservative–Liberal Democrat Coalition Government appear to be extending the reach of removal powers to the electorate as well. 

I.  Traditional Means of Removing Representatives This section of the chapter examines the various current means at Parliament’s disposal when a representative, having made it through the selection and election procedures, eventually does something which renders her unfit for office, long before the electorate is in a position to act. There are three current means by which this might happen: via statute; the common law; or under Parliament’s privilege of regulating its own composition.

A.  Statutory and Common Law Grounds of Disqualification Chapter three examined the various ways set out in statute whereby a potential representative might become ineligible to put herself forward for the electoral contest. Those disqualifications also apply to Members once the election is won. The House of Commons has a general power to inquire into any question over a representative’s qualification for office, and decide whether a writ for that Member’s seat should be issued. The House also has the power to refer eligibility questions to the Judicial Committee of the Privy Council for a determination under the Judicial Committee Act 1833.1 The Judicial Committee’s powers are 1   Judicial Committee Act 1833, s 3. This is a clear example of Parliament creating a limited judicial jurisdiction over its privilege of composition.



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limited to investigating and declaring the existence of disqualifying circumstances. The House then decides how to respond to the Committee’s advice. To date, two cases have been heard under this procedure: In Re Samuel 2 (entering into a contract with a Minister) and In Re MacManaway 3 (Church of Ireland priest). The MacManaway case is an interesting illustration of Parliament’s reluctance to hand matters over to the courts entirely; the Privy Council unexpectedly declared Reverend MacManaway to be disqualified by virtue of its interpretation of the term ‘Episcopal ordination’, when this was generally understood to apply only to Church of Scotland and Church of England priests. The House responded to the judgment by passing an Act specifically designed to indemnify Reverend MacManaway from his disqualifying condition.4 More specifically, should a disqualification be one of those enumerated under the House of Commons Disqualifications Act 1975, the Member’s seat automatically becomes vacant. Alternatively, under section 6(2) of the Act, the House may resolve to ignore the disqualification if it comes within those listed in section 6(1), the disqualification has now been removed, and the House considers it the proper course of action to take.5 This occurred in the case of Dr Michael Winstanley in 1974.6 The Commons ordered that the disqualification he had incurred ‘by virtue of his employment in the Civil Service of the Crown as a sessional medical officer’7 was to be disregarded under these provisions of the House of Commons Disqualifications Act 1975. This appears to be the first, and so far only, instance of this provision being used.8   [1913] AC 514.   [1951] AC 161. 4   Reverend JG MacManaway’s Indemnity Act 1951. The House again availed itself of this remedy a few years later with the Niall Macpherson Indemnity Act 1954. 5   Prior to the establishment of this procedure, the usual course for Parliament was to pass an indemnity statute of the type mentioned above. The reason for the change may have been the rather frequent resort which Parliament had to have to this remedy. Eg, as well as the MacManaway and Macpherson legislation, the House of Commons also enacted the Arthur Jenkins Indemnity Act 1941 (Jenkins was the chair of a local appeal board for the Royal Ordinance Factory; although not an employee, he was entitled to a per diem allowance which made the appointment an office of profit, even though he did not take it up); the Coatbridge and Springburn Elections (Validation) Act 1945, validating the election of several members who were at the time of election members of local Rent Control Tribunals; the House of Commons (Indemnification of Certain Members) Act 1949, indemnifying members who had been appointed to the General Medical Council while MPs; and the Charles Beattie Indemnity Act 1956. The last-mentioned Act indemnified Beattie from all penalties he might have incurred, such as a common informer fine, but did not validate his election; instead, a new writ was issued for his constituency. In 1956, the House of Commons also had to pass legislation for the Northern Ireland Parliament, validating the elections of four members of its House of Commons (including the Speaker) and two Northern Ireland Senators, since it was not within Stormont’s legislative competencies to do so (Validation of Elections (Northern Ireland) Act 1956). 6   ‘Disqualification’ (1974) 230 Commons Journal 71. 7  Ibid. 8   The House of Commons file ‘Members/Disqualification/Offices of Profit under the Crown’ (HC/ CL/CH/2/2/22) (obtained under the Freedom of Information Act 2000) reveals that between 1956 and January 1977, five MPs sought advice as to whether they were disqualified under the House of Commons Disqualification Act. In every case other than Dr Winstanley’s (which occupies the bulk of the file) they received a negative answer (although one other MP was initially advised that he was disqualified but this advice was then reversed). A request for the current file was denied. 2 3

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Again, if there is any doubt as to whether the disqualification has in fact occurred, then under section 7 of the Act, the matter may be referred to the Privy Council by the House of Commons. An individual representative may also invoke this procedure. The Privy Council has not heard any cases relating to the 1975 Act, perhaps illustrating Parliament’s dissatisfaction with the result in the MacManaway case and/or its desire to decide these matters for itself. The main concerns regarding eligibility for office are the Member’s conduct and conflicts of interest. These apply equally to potential representatives and actual ones. A representative does not have free rein to act as she pleases once elected. Remaining a representative requires a Member to observe at least the same (and as we shall see, potentially more stringent) standards as those required for election. Representatives’ behaviour is not the concern of voters alone; it also exercises the attention of Parliament.

B.  Disqualification under Parliamentary Privilege One of Parliament’s long-standing and fiercely-held privileges is its ability to regulate its own composition. Historically, it was mostly used to decide who might enter Parliament. Now that Parliament has ceded that power to the courts in the form of the statutory election petition, the composition privilege is rarely discussed, other than in the historical sense. Some have even claimed that with the putting into statutory form of the grounds for disqualification, the composition privilege has been extinguished.9 This claim overlooks one of the rules on the interaction of the lex parliamenti and the common law: that for a privilege to become extinct, it has to have been abrogated by express words in a statute.10 An implied abrogation based on the existence of statutory disqualification criteria (or a ground’s omission therefrom) is not sufficient. For example, the Australian federal Parliament felt it necessary to extinguish expressly the power of expulsion for all state parliaments after it had been used against a Member by the New South Wales Parliament even though the Member’s conduct was not covered by the

9   See A Geddis, ‘Gang Aft A-Gley: New Zealand’s Attempt To Combat “Party Hopping” By Elected Representatives’ (2002) 1(4) Election Law Journal 557, 568: ‘[T]he fact that the . . . Electoral Act enumerates ten situations in which a member’s seat may be declared vacant . . . would seem to constrain the House’s previous power to expel a member on any ground that it saw fit. As such, the question of whether an MP may continue to sit in parliament would appear to be answerable solely by reference to whether the statutory criteria apply to that MP’s particular situation, with no residual power remaining in Parliament’s hands to expel any member who does not fall within one of these . . . grounds.’ See also P Joseph, Constitutional and Administrative Law in New Zealand, 2nd edn (Brookers, Wellington, 2001) 422. 10  See Duke of Newcastle v Morris (1870) LR 4 HL 661, 671. See also E Campbell, ‘Expulsion of Members of Parliament’ (1971) 21 University of Toronto Law Journal 15, 19: ‘The fact that qualifications and disqualifications for membership of parliament are laid down by statute probably does not deprive a house of power to expel members on grounds other than lack of qualifications unless the legislation makes it clear that the causes and conditions on which a member’s seat becomes vacant are intended to be exhaustive.’



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vacancy grounds in the New South Wales Constitution Act 1902.11 Thus, while no longer the dominant way of seeing an MP’s tenure terminated, this aspect of the composition privilege cannot be said no longer to exist. How, then, might the composition privilege operate in the case of a Member who has not triggered the statutory disqualification provisions but who, in the opinion of Parliament, has been judged unfit to hold Membership of the House?

Expulsion from Parliament  Parliament has several options available in relation to Members who do not meet the standards expected of those holding such a responsible position in public life. These include admonitions, temporary suspension from the debating chamber, committal and the ultimate sanction, expulsion. Expulsion is effected by resolution of the House. As with statutory disqualifications, expulsion vacates the Member’s seat. The Westminster Parliament remains firmly of the view that it, and only it, retains the power to expel.12 The principle of mutual comity requires the courts and Parliament to respect each other’s jurisdiction and expertise, thus avoiding conflict between the two branches of government. Parliament claims exclusive jurisdiction over matters which take place within its walls. This position is encapsulated in Article IX of the Bill of Rights 1689, which provides that ‘proceedings in Parliament ought not to be impeached or questioned in any place out of Parliament’. Should a court nevertheless entertain a claim over something Parliament sees as its domain, Parliament may refuse to have any cognisance of the court’s decision. In return, by convention, Parliament generally does not interfere with or comment on judicial decisions. After a series of cases which began in the 1810s and concluded 30 years later,13 where Parliament and the courts battled it out over the limits of their respective jurisdictions, an uneasy compromise was reached. The courts asserted the right to say whether a particular privilege existed (on the basis that privilege was part of the general law), but Parliament retained the right to apply and enforce the privilege.14 In particular, Parliament’s jurisdiction over its own affairs has been tested in the context of members’ rights to take their seats and Parliament’s ability to prevent them. The most (in)famous case is that of Charles Bradlaugh, several times elected as the Member for Northampton, and almost as many times refused Membership of the House.15 Bradlaugh was an atheist who objected to taking of the oath on 11   See Parliamentary Privileges Act 1987 (Cwlth), s 8. See also Armstrong v Budd [1969] 1 NSWR 649, the member’s unsuccessful challenge to his expulsion. 12   Joint Committee on Parliamentary Privilege, Parliamentary Privilege First Report (TSO, London, 1999) para 272. 13   Burdett v Abbott (1811) 4 East 1; Stockdale v Hansard (1839) 9 A & E 1; Case of the Sheriff of Middlesex (1840) 11 A & E 273. See T Erskine May, Constitutional History of England, 7th edn (Longmans, Green & Co, London, 1882) vol 2, 75–83, for detail on these cases. 14   For further discussion on this topic, see W Anson, The Law and Custom of the Constitution, 5th edn (Clarendon Press, Oxford, 1922) 184–98. 15   A Walker and E Wood, The Parliamentary Oath (House of Commons Library Research Paper, London, 14 February 2000) 22–24.

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religious grounds (taking the oath being a prerequisite for taking one’s seat).16 He then attempted to take the oath, but the House refused him on the basis of lack of sincerity. Bradlaugh brought an injunction challenging the Speaker’s ruling and the resolution of the House ejecting him for causing a disturbance. In the subsequent case, Bradlaugh v Gossett, the court declined to interfere with the House’s decision, saying: The House of Commons is not subject to the control of . . . the courts in its administration of that part of the statute law which has relation to its own internal proceedings . . . even if that interpretation should be erroneous, this court has no power to interfere with it directly or indirectly.17

The rationale for expulsion may be brought under two heads: a punitive power; and a remedial power, enabling the House to maintain its dignity and status by removing those who offend against its norms of expected behaviours. However, Erskine May notes that ‘the purpose of expulsion is not so much disciplinary as remedial, not so much to punish members as to rid the House of persons who are unfit for membership’.18 Similarly in the Canadian case of MacLean v AttorneyGeneral of Nova Scotia, where Lamer CJ observed that ‘what the House did in expelling [MacLean], met their stated purpose of protecting the integrity of the House and was justified in a free and democratic society.’19 Again, in the expulsion power just as in the eligibility provisions, we see recurring the concern of the law in this area: What is the representative like? Is she suitable for and worthy of office? The ability to expel also reinforces the notion that being a representative is a position held on trust, rather than under a mandate. What might constitute ‘unworthiness’? In the seventeenth to nineteenth centuries, Parliament used its powers of expulsion relatively frequently to rid itself of Members whom it considered unfit.20 Various instances of monetary fraud or dishonesty were the most frequent transgression,21 16   A modern version of this case occurred in 1997, when Sinn Fein candidates M McGuinness and G Adams were elected to the House of Commons but would not take the oath on religious and political grounds. The Speaker refused them access to certain facilities in Parliament as a result. See ibid, 29–44 and McGuinness v United Kingdom App no 39511/98 (ECtHR, 8 June 1999), where McGuinness’s challenge to the Speaker’s ruling was found to be inadmissible. 17   In the end he was allowed to take the oath, but not before his seat had been vacated and he had been re-elected three times, making a total of four elections: Walker and Wood, above n 15, 24. 18   See also R Blackburn and A Kennon, Griffith and Ryle on Parliament, 2nd edn (Sweet & Maxwell, Singapore, 2002) 136: ‘[Expulsion] may best be understood as a means available to the House to rid itself of those it finds unfit for membership, rather than as a punishment.’ 19   MacLean v Attorney-General of Nova Scotia (1987) 35 DLR (4th) 306, 316 (expulsion following conviction for using forged documents). 20   The following examples are taken from the list complied from the Commons Journals by D Boothroyd, ‘Members expelled from the House of Commons since the Restoration’ (2005), available online at . 21   John Ashburnham (expelled 22 November 1667 for accepting a bribe); George Robinson (expelled 3 April 1732 for diverting funds from the Charitable Commission for personal investment in shares); John Hunt (expelled 23 May 1810 after being found to have embezzled public funds); George Woodyatt Hastings (expelled 2 March 1892 for abusing his position as trustee of property).



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but Members were also expelled for offending against morals (both sexual22 and religious23), for sedition24 and for abusing parliamentary privilege.25 Parliament was no respecter of office or talent in these cases, even Sir Robert Walpole being expelled for corruption during his time as War Secretary.26 There have been three cases of expulsion27 and one of near-expulsion in the twentieth century. The first was Horatio Bottomley in 1922.28 He was convicted of fraudulent conversion of property and sentenced to seven years’ imprisonment. He had diverted for his own use contributions to bonds meant to be invested in government stock. In 1947, Garry Allighan29 was expelled for ‘gross contempt of the House and misconduct’.30 He had alleged in a newspaper article that other MPs were disseminating confidential information from the House to the media, when in fact it was he himself who was guilty of this.31 When these allegations were investigated, he lied to the Committee.32 He was found to be in contempt of the House and expelled. This case is noteworthy for the fact that even though Allighan was a Labour MP, and the Labour party was in government at the time, the motion to expel him still carried.33 Notably also, the motion to expel was originally only a motion to suspend. Clearly, disapproval of his conduct transcended party loyalties. In 1954, Peter Baker was expelled on the back of his conviction for forgery. This resulted in a seven-year prison sentence. Although the legal effect of the expulsion motion is doubtful, since Baker’s seat had been vacated in any case because of the conviction, it is notable that Parliament nonetheless decided to respond to his conduct in this way.34 Baker was also a government MP. A useful indication of Parliament’s flexibility in this regard is the different reaction in the case of Fred Rose, who in 1946 was convicted of wartime spying. After his sentence was passed, the Commons resolved that he had ‘become and continues to be incapable of sitting and voting in the House’.35   Edmund Hope (expelled 12 May 1891 for procuring an underage girl for immoral acts).   John Asgill (expelled 18 December 1707 for writing a book arguing it was possible to achieve eternal life without dying). 24   John Carnegie (expelled 22 June 1716 for participating in the Jacobite rebellion); Sir Richard Steele (expelled 18 March 1874 for publishing a libellous pamphlet). 25   Hon Henry Brouncker (expelled 21 April 1668 for misusing the privilege of freedom of arrest); Charles Bradlaugh (expelled 22 February 1882 for contempt of Parliament). 26   Walpole was expelled on 12 January 1712 for receiving money due to a third party under contracts Walpole had signed while Minister of War. 27   House of Commons ‘Disciplinary and Penal Powers of the House’ (House of Commons, London, 2003) 5. 28   See ‘Bottomley’ entry in M Stenton and S Lees, Who’s Who of British Members of Parliament, Vol II 1919–1945 (Harvester Press, Brighton, 1979) 36. 29   For discussion of the Allighan and Baker cases, see Blackburn and Kennon, above n 18, 136. 30   M Robinton, ‘Parliamentary Privilege and Political Morality in Britain, 1939–1957’ (1958) 73(2) Political Science Quarterly 179, 202. 31   Report from the Committee on Privileges (Allighan Garry, MP) (1946, House of Commons, London) v–vi. 32   Robinton, above n 30, 200–02. 33   Ibid, 202. 34   ‘Motion for MP’s Expulsion’, The Times, 15 December 1954, 8. 35   Campbell, above n 10, 20. 22 23

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The most notorious of these cases is that of John Stonehouse, a minister in the Wilson Government in the 1970s. His behaviour went well beyond that envisaged by the disqualification statutes when he faked his own death by drowning in Florida in 1974.36 He was discovered in Australia, where he had come to the attention of the police because he had been mistaken for Lord Lucan. His intention had been to live there with his mistress on the proceeds of monies embezzled from various companies he had set up. A motion to expel him was deemed the appropriate response by the Committee investigating his actions; one was scheduled but was then withdrawn so as not to prejudice the trial. Stonehouse was convicted of theft, forgery and fraud, and then in 1976 resigned from Parliament through the device of applying for the Chiltern Hundreds.37 It seems unlikely that in any event he would have survived a motion of expulsion. Expulsion cases to date have concentrated on acts of dishonesty, usually involving money. Clearly it is the moral fibre of its Members or, to be more accurate, the lack thereof which troubles Parliament the most. The recurrent nature of this concern has been highlighted by the exposure by the Daily Telegraph of several MPs’ misuse of the parliamentary expenses scheme – actions which led to a number of resignations from ministerial posts and the curtailment of several MPs’ careers. In the last decade, Parliament has tried to bring some clarity to the regulation of members’ conduct. The Committee on Standards in Public Life (the Nolan Committee) was established in 1994 to examine issues relating to conflicts of interest and the receipt of money for carrying out parliamentary duties.38 In response to the report of the Nolan Committee, the House set up the Select Committee on Standards in Public Life. Following the recommendation of the Select Committee, in 1996 the Privileges Committee and the Members’ Interests Committee were merged to form the Committee on Standards and Privileges. This action dovetailed the concern (Members’ conduct) with the means of regulation (privilege). Since 2003, this Committee has not had a Government majority and has been chaired by an opposition MP to facilitate the impartiality of its investigations and determinations.39 36   While this might seem a unique occurrence, in December 2007 John Darwin apparently came back from the dead five years after having faked his own death in a canoeing accident: ‘Canoe couple remanded in custody’, BBC News Online (18 January 2008). 37   House of Commons, The Chiltern Hundreds (House of Commons, London, 2004) 5. The Chiltern Hundreds is an ancient paid office of the Crown, appointment to which contravenes the rules of eligibility for parliamentary membership and thus automatically disqualifies the Member. 38   On the Nolan Committee and subsequent developments, see S Child, Politico’s Guide to Parliament, 2nd edn (Politico’s Publishing, London, 2002) 265–300. See also C Nicholls QC et al, Corruption and Misuse of Public Office (Oxford University Press, Oxford, 2006) 296–307. 39   Blackburn and Kennon, above n 18, 618. Nonetheless, criticisms of the Committee and its workings have not been completely allayed. In particular, concerns have been raised that the operations of the Committee do not comply with the ECHR’s Art 6 ECHR, which provides that ‘In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing before an independent and impartial tribunal established by law.’ See G Drewry and D Oliver, ‘Parliament and the law relating to Parliamentary Standards’ in O Gay and P Leopold (eds), Conduct Unbecoming (Politico’s, London, 2004) 200–09. Although the Human Rights Act 1998 exempts Parliament from complying with the ECHR, the Joint Committee on Parliamentary Privilege, above n12 accepted that investigations into breaches of privilege needed rethinking to comply with natural justice concerns under the ECHR. See



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The Committee is guided by the Members’ Code of Conduct, which holds members to seven principles of conduct identified by the Nolan Committee: selflessness; integrity; objectivity; accountability; openness; honesty; and leadership.40 These would seem wide-ranging enough to encompass Parliament’s desire not to be brought into disrepute by its individual Members’ conduct. The Code also encompasses failures to register interests such as those contained on the Members’ Register of Interests which may conflict with a representative’s loyalties to his parliamentary duties. The Register is updated at each Parliament and contains among its categories of interests details of Members’ paid and unpaid activities, donations, sponsorships, gifts, overseas visits, and non-residential land and property. Investigations by the Committee may be preceded by a preliminary investigation by the Parliamentary Commissioner for Standards, an officer of Parliament charged with inquiring into and reporting on complaints about MPs.

The MPs’ expenses scandal and the Government response This reasonably settled state of internal regulation of MPs’ conduct was put sharply in focus by the reforms of the expenses regime that swiftly followed on the heels of the news that broke in 2009, that many MPs had misused the expenses and allowances system. In a flurry of activity, no doubt in an effort to be seen to be responsive to the public anger over this misuse – in many cases calculated and/or extravagant – of public monies, immediate changes were made to the range of claimable expenses41; revisions to the financial interests aspects of the Code of Conduct were put in place; and a new registration system for Members’ second jobs was introduced.42 The Reform of the House of Commons Committee was set up to look at ways in which Parliament’s role might be strengthened.43 A review of the expenses system itself was started by the Committee on Standards in Public Life,44 with Sir Christopher Kelly as Chair, and the Members Estimates Committee appointed Sir Thomas Legg to investigate the question of what might need to be paid back from the last four years’ of expenses payments.45

O Gay, ‘The investigations and appeals process in the Commons since 1995’ in Gay and Leopold (eds), above, 155. The Joint Committee proposed certain minimum standards of fairness to be applied by Privileges Committees, including a statement of the allegations against the Member, the opportunity to obtain legal advice and be heard in person, and to call and examine witnesses. 40   Cm 2850-1. On 10 June 2009, the Prime Minister announced to the House of Commons his intention to place the Code of Conduct on a statutory footing. For the fate of this proposal, see the text at ‘The MPs’ expenses scandal and the Government response’ below. 41   Speaker, Hansard HC, 19 May 2009, col 1421. 42   Resolution of the House of Commons, Hansard HC, 30 April 2009, col 1063. 43   Resolution of the House of Commons, Hansard HC, 20 July 2009, col 689. 44   Committee on Standards on Public Life, ‘CSPL to Bring Forward Review of MPs’ Allowances’ (Press Release, 31 March 2009). 45   Members Estimates Committee, ‘Review of Second Home Claims Begins’ (Press Release No 2, 1 July 2009).

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The Parliamentary Standards Bill This was not the end of matters however. The Government decided that rather more drastic reform was needed at the systemic level to regulate Members when it came to the question of allowances and expenses. This reform took the form of the Parliamentary Standards Bill. The expenses scandal provides us with an opportun­ ity to re-think our conceptions of our representatives and what we should be able to expect from them46; but in this part, we revisit, via this latest statutory development, the issue of who should have oversight, and ultimate control, over their conduct. This battle was neatly illustrated by the legislative journey of the Parliamentary Standards Bill into an Act. The major reform of the Bill as introduced was to establish a body external to Parliament, to be known as the Independent Parliamentary Standards Authority (IPSA).47 It was to have five members, one of whom was to be a qualified auditor, one a judge or former judge, and one a former member of the House of Commons. The IPSA was to be responsible for the regulation and administration of MPs’ salaries, allowances and financial interests.48 It was also to be responsible for preparing the rules on financial interests.49 The Bill further provided that the House of Commons was to continue to have a Code of Conduct which would incorporate the Nolan Principles referred to above.50 The Bill also created the position of the Commissioner for Parliamentary Investigations, who would be charged with investigating breaches of the rules relating to allowances and financial interests.51 Following an investigation and report by the Commissioner, sanctions were placed at the IPSA’s disposal, including the repayment of allowances incorrectly paid or directing that a Member’s entry in the register of financial interests be amended.52 The IPSA could also make a recommendation to Parliament’s Committee on Standards and Privileges that the Committee exercise its disciplinary powers against a Member.53 The same clause also listed some of the sanctions 46   During the Second Reading of the Bill, speakers did just that: see Frank Field, Hansard HC, 29 June 2009, col 76: ‘The Bill will make a fundamental change to representation as the British public have seen it in the past. . . . The concept of representative government means various things, but partly that in some genuine way this House should represent the people whom we are elected to serve, in the sense that we should somehow mirror them.’ See also Natascha Engel, Hansard HC, 29 June 2009, col 92: ‘What has got us into this mess in the first place was our failure to recognise that, as many other Members have pointed out, what we do here is representation. . . . If Parliament is about anything, it is about representing people in constituencies in the United Kingdom. We should be talking to them about what we do, but we should also be hearing from them what they want us to do.’; Adam Afriye, Hansard HC, 29 June 2009, col 103: ‘We are elected representatives of the people. We are here because our constituents chose us to represent their interests and to represent the nation on their behalf.’ 47   Parliamentary Standards Bill 2009, clause 1. 48   Ibid, clauses 2–4. 49   Ibid, clause 5. 50   Ibid, clause 6. 51   Ibid, clause 7. 52   Ibid, clause 8. 53   Ibid.



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the Standards and Privileges Committee could impose on a Member, namely the withholding of salary, suspension or expulsion from the House. To underscore the seriousness with which the expenses scandal was viewed, clause 9 of the Bill created three new criminal offences that applied to MPs: a) knowingly providing false or misleading information in a claim for an allowance; b) failing to comply with the rules on registration; and c) breaching the rules against paid advocacy. Clause 10 of the Bill carved out an exemption from parliamentary privilege, namely Article IX of the Bill of Rights, in adducing evidence in relation to those offences. It also provided that the IPSA and the Commissioner were exempt from the restrictions of privilege when carrying out their functions. The overall thrust of the Bill – the end of self-regulation in relation to expenses – was not opposed by the House of Commons.54 But the move from internal to external regulation raised a question, perhaps unanticipated during the drafting, of major constitutional importance: What impact would the creation of the IPSA and associated powers have on parliamentary privilege? This was not the only concern expressed over the Bill: reservations were noted over the very fast passage of the Bill through Parliament. It was introduced on 23 June and received the Royal Assent on 31 July. Comments were made by those both inside and outside Parliament that this urgency was not appropriate for legislation of this constitutional significance.55 Also under scrutiny were the provisions in the Bill relating to IPSA investigations, with Parliament’s Joint Committee on Human Rights reporting that it believed that they offended the right to a fair hearing under Article 6 ECHR56 (the Bill was later amended to create greater rights for those under investigation57). The creation of new criminal offences applying only to MPs was criticised on the basis that sufficient sanctions already existed in the criminal law, and as a breach of the rule of law, treating MPs differently by subjecting them to a lesser penalty than that imposed for the same or similar offences because of their status.58 Unease was also expressed over the Government’s

  Indeed, the Bill itself had been created by a cross-party committee.   See House of Lords Select Committee on the Constitution, 17th Report (6 July 2009) para 1: ‘We are particularly concerned by the hasty manner in which policy-making has taken place, with negligible public consultation, and the subsequent “fast-tracking” through Parliament of a bill which will have major constitutional implications.’ And at para 20, their Lordships made their position very clear, stating: ‘This is no way to legislate on matters which raise complex constitutional and legal issues.’ The Joint Committee on Human Rights, 19th Report (30 June 2009) para 1.2, commented ‘This legislative timetable makes it impossible for Committees such as ours to perform our important role of subjecting Government Bills to careful scrutiny and reporting to Parliament to inform its debate.’ See also the evidence of Professor Dawn Oliver, UCL, and Professor Patricia Leopold, University of Reading, to the Commons Justice Committee, below. 56   Joint Committee on Human Rights, above n 55, paras 1.11 et seq. 57   Parliamentary Standards Act 2009, s 9(11) and (12). 58   House of Lords Select Committee on the Constitution, 18th Report (8 July 2009) paras 38–39. 54 55

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stated intention to apply the Bill to the House of Lords in due course,59 notwithstanding that each House is independently self-regulating. Parliamentary privilege and the Bill in the Commons Notwithstanding these other constitutional flaws, it was the impact on parliament­ ary privilege that occupied most of the debates and was responsible for the majority of changes to the Bill. At first the Government chose to dismiss the idea that privilege was in fact rele­ vant, the Leader of the House saying that: . . . parliamentary privilege is not an issue in that Bill. . . . Essentially, the Parliamentary Standards Bill sets up an authority to deal with our allowances to ensure that they are established and administered independently . . . It will not trample on the question of privilege.60

This assurance did not convince the Commons’ Justice Committee. It sought evid­ ence from the Clerk of the House on the Bill, producing a report including that evidence on 1 July.61 The Clerk’s position was sharply opposed to that of the Government, calling out clauses 6, 8 and 10 in particular as ‘upsetting the essential comity established between Parliament and the Courts’.62 Clause 6, with its reference to the incorporation of the Nolan Principles into any parliamentary Code of Conduct, created a risk of litigation over whether the Principles were so incorporated. As the Code is currently created by resolution, any litigation over the Code would necessarily call into question ‘proceedings in Parliament’, contrary to Article IX of the Bill of Rights.63 The Clerk posited that a court might even find that Parliament was under a duty to adopt an amending resolution – thus directly infringing on Parliament’s right to conduct its own affairs free from interference from the judiciary.64 In response, despite tabling a memorandum to the Justice Committee from the Ministry of Justice asserting that the risk of litigation was low, the Government put out a statement that it would not be pursuing clause 6, and would in fact support its removal from the Bill.65 Parliament thus scored a victory for self-regulation early on in proceedings. Clause 8 was also problematic. In the Clerk’s opinion, as it made the question of Parliament’s disciplinary powers a matter of statute rather than privilege, it opened 59  ‘Proposals for Fundamental Reform of the Parliamentary Allowances System’ (19 May 2009), available online at . See also Rt Hon Jack Straw, Hansard HC, 2nd Reading debate 29 June 2009, col 47. 60   Rt Hon Harriet Harman, Hansard HC, 25 June 2009, col 950. 61   House of Commons Justice Committee, 11th Report (1 July 2009). This was the same date as the first day of Committee debate, and in fact the Clerk’s memo was released to parliamentarians on 30 June. 62   Ibid, Ev 11, para 1. 63   Ibid, para 8. 64   Ibid. 65   House of Commons Justice Committee, above n 61, Ev 13, Memorandum from Rt Hon Jack Straw, Minister of Justice: ‘[W]e are content to remove clause 6 from the Bill.’



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up Parliament to a direction from the courts to exercise its powers of discipline and sanction in a way which might inhibit its ability to use the full range of its powers.66 Clause 10 permitted evidence from parliamentary proceedings to be admitted in proceedings related to the newly-created offences. This was a direct and wide exception to Article IX of the Bill of Rights, permitting ‘the words of Members generally, the evidence given by witnesses (including non-Members) before committees, and advice given by House officials on questions, amendments and other House business [to be] admitted as evidence in criminal proceedings’.67 Such a clause, in the Clerk’s opinion, would have a two-pronged negative effect: it would have a chilling effect on Members’ freedom of speech, and it would hamper the workings of the House by acting as a restraint on officials’ ability to advise Members.68 Clause 10 did not survive the Second Reading debate, being negatived when put to the vote by 250:247. Unfortunately, the urgency of the legislative timetable did not permit any debate on clause 10. However, it is not difficult to imagine what might have been said. Freedom of speech is Parliament’s principal privilege, enjoyed by Parliament as a whole but for the benefit of their constituents, and is jealously guarded. The Government deferred to the Commons’ views, and made it clear that it would not try to reintroduce the clause into the Lords. It likely would have faced a difficult time if it had, as the House of Lords also showed itself to be unhappy with the idea that balance of parliamentary privilege might be disturbed. Parliamentary privilege and the Bill in the Lords While the Bill did not extend to the House of Lords, and notwithstanding the removal of two offending clauses during the Commons stages, their Lordships were also engaged with the impact of the Bill on parliamentary privilege. The House of Lords Constitution Committee invited the Clerk of the Parliaments to comment on what implications the Bill might have for privilege in the Lords. It was noted that there still remained the potential for a clash between Parliament and the courts at several points, particularly in relation to the way the new Commissioner and the IPSA might exercise their powers, as it was not clear whether these would be ‘proceedings in Parliament’ or not.69 Their Lordships cautioned that if the courts were to accept jurisdiction over these sorts of matters, this ‘would bring about a change in the borderline between Parliament and the Courts’.70 To this end, the House of Lords removed the requirement in the IPSA’s membership clause that one member be a judge. Former judges were acceptable, but to have a serving judge on a body dealing with parliamentary matters was thought to be too close to the accepted boundary between Parliament and the courts.71   Ibid, Ev 11, paras 15 and 16.   Ibid, para 17. 68   Ibid. 69   House of Lords Select Committee on the Constitution, above n 58, para 23. 70   Ibid, para 23. 71   See Lord Bach, Hansard HL, 1st day Committee Debates 14 July 2009, col 1073: ‘I agree with the noble and learned Lords, Lord Woolf and Lord Mackay of Clashfern, that it would be a mistake to have 66 67

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Clause 8 (clause 7 in the House of Lords) was amended to remove the requirement that the Commissioner report to the IPSA on the outcome of an investi­ gation, replacing it with a requirement for the Commissioner to report to the Committee on Standards and Privileges. Their Lordships also diluted the recommendatory power to the Committee on Standards and Privileges to one of referral.72 These were key amendments, maintaining Parliament’s ability to discipline its own members, just as it had for centuries before. As noted earlier, gone from the Bill were the clause 10 exemptions from Article IX of the Bill of Rights; in their place the House of Lords inserted a strong reminder that Parliament was not prepared to give up its privilege of exclusive jurisdiction. Section 1 of the subsequent Act takes the form of an ouster clause, stating: Nothing in this Act shall be construed by an court in the United Kingdom as affecting Article IX of the Bill of Rights 1689.73

Their Lordships also removed two of the offences introduced by clause 9: paid advocacy and failing to register an interest – these simply could not be pursued effectively once the clause 10 carve-out from Article IX had been removed. Their Lordships also took care to make sure that it was clear that the Bill did not cover the House of Lords, other than in certain procedural capacities.74 If their Lordships were to agree to a change in the way they regulate themselves, it was not to be done by a side-wind. Finally, to address the many concerns expressed about the fast-tracked nature of the Bill, the House of Lords introduced a partial renewal clause into the Bill.75 This provided that certain provisions of the Act relating to the establishment of the IPSA and the Commissioner, as well as some of their functions, would cease to have effect two years after section 8 (that being the section relating to the MPs’ code of conduct on financial interests) came into force, unless renewed by Ministerial Order. The Bill was reported back the Commons on 21 July. In an hour’s debate, the Commons accepted all of the amendments inserted by the Lords,76 and the Bill received the Royal Assent on the same day.

a serving judge sitting on IPSA, not just because they are busy people in any event but because in principle it would not be appropriate.’ 72   Parliamentary Standards Act 2009, s 9(4), (6) and (8) provide that this referral power may be activated where there is a finding that an MP has been paid an allowance she should not have been paid; where an MP has not complied with the code on financial interests; or where the MP has failed to supply the Commissioner with information which is reasonably required for the investigation. 73   Ibid, s 1. 74   Ibid, s 2. 75   Ibid, s 15. Nevertheless, the Government continued to maintain that fast-tracking was the right option. See House of Lords Select Committee on the Constitution, 22nd Report (2 November 2009) Appendix I: Letter of Rt Hon Jack Straw MP. 76   Division of the House of Commons, Hansard HC, 21 July 2009, col 788.



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The Parliamentary Standards Act The Act that eventually entered the statute books was quite different in form and character from the legislation initially introduced six weeks earlier. While the office of the IPSA survived, as did the position of the Commissioner for Parliamentary Investigations (renamed the Compliance Officer for the IPSA), their roles were now less far-reaching. The IPSA was still to pay MPs’ salaries, draw up and administer their allowances, and prepare and maintain a code relating to MPs’ financial interests. The Commissioner was still responsible for conducting investigations in relation to payments of allowances or the registration of financial interests. The major reforms shifting the administrative and some regulatory powers in relation to expenses and allowances to an independent body outside Parliament were achieved. But gone were the recommendatory powers of the IPSA and the Commissioner that could have drawn the courts into questioning whether and how the Commons should exercise its disciplinary powers. Gone too was the clause that would have lifted the protection of Article IX of the Bill of Rights from Members and staff in prosecutions for financial offences. In the final analysis, while Parliament was prepared to admit that the scheme of self-regulation of expenses had come to the end of its life, it was not prepared to hand over control of MPs’ conduct or of specific aspects of parliamentary affairs more generally to the judiciary as the Bill had originally envisaged would happen. The removal or dilution of practically every clause in the Bill that might have the potential to shift the locus of control illustrates this plainly. The long-established boundaries between Parliament and the courts were kept in place. Parliament was to maintain overall control over the fate of its Members. The journey of the Parliamentary Standards Act 2009 re-highlights many of the problems considered earlier when discussing those attempts by the judiciary to be involved in the affairs of Parliament. Disciplining MPs, whether it be for party disloyalty, general misbehaviour or financial impropriety, inevitably involves problems of a political nature which the judiciary are not well placed to address. It draws the judiciary into making political judgements which are, in the end, for the electorate to make. The judiciary would also have been limited to working with the terms of the statute. Parliamentary privilege, on the other hand, is flexible. As the past record reveals, it is able to address the myriad varieties of representatives’ misconduct. Moreover, it does not raise the spectre of unelected judges deciding what an elected Parliament should do. Legislation concerning the conduct of MPs is very problematic from a constitutional perspective, because any attempt to legislate with regard to what MPs may or may not do, or even to regulate around the edges of this field, raises the question of the proper relationship between Parliament and the courts, and the balance of power in the constitution. Unless and until Parliament relinquishes and/or extinguishes its rights of exclusive cognisance, the boundaries and terms of this relationship are destined to remain under the control of Parliament. And while this is not inconceivable, Parliament having done so in relation to disputed

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elections, the time when that might be seen as a real possibility is many years away.77

II.  Addressing Unworthy Conduct in Other Ways As illustrated by the expulsion cases (see section I.B. above), privilege has proven itself to be flexible in judging the ability of representatives in carrying out their duties. The fact that having one’s seat vacated is no bar to standing again78 (unless one is also disqualified) also indicates that Parliament is mindful of the electorate’s ultimate position as the determiner of the House’s make-up. The power of expulsion gives Parliament the ability to respond when a representative does something previously out of the realms of contemplation and not covered by any disqualification provision or, nowadays, the Members’ Code of Conduct. Privilege can deal with any situation, from blasphemy to treason to financial impropriety. The privilege of expulsion is a residual power of last resort and, mindful of this, the Commons has used it sparingly. However, the MPs’ expenses scandal was well outside the remit of parliamentary privilege: many MPs were involved in what appeared to be a systemic misuse of funds, rather than the individual cases of misconduct of the past, and it would have been inappropriate for Parliament to be seen to be disciplining its own members when the institution itself was under a cloud. In the 2010 election campaign, the Conservatives, Labour and the Liberal Democrats each put forward proposals in their manifestos for a form of sanction known as the recall election.

A.  The Recall Election Recall elections are sometimes seen as form of direct democracy, and thus as incompatible with a system of representative democracy. However, this is a constraint created by a particular view of how a representative should behave; as its use in various democracies shows, it is not a legal restriction on the introduction of recall elections. Conversely, recall elections may be viewed as an additional corrective device within a system of representative democracy, to be employed where 77   Indeed, during the debates, Members of both Houses made reference to the ECtHR decision of A v UK [2002] ECHR 811 as indicative of judicial respect for Art IX at the highest levels. In that case, where an MP had referred to a constituent and her family as ‘neighbours from hell’ the Court upheld Article IX as a legitimate restriction on the constituent’s inability to bring a defamation suit. The Court noted that ‘the parliamentary immunity enjoyed by the MP in the present case pursued the legitimate aims of protecting free speech in Parliament and maintaining the separation of powers between the legislature and the judiciary.’ 78   This is well illustrated by the Bradlaugh case; see also the case of John Wilkes, as discussed in G Palmer ‘Adam Clayton Powell and John Wilkes: An Analogue from England for the Men in the Marble Palace’ (1971) 56 University of Iowa Law Review 725. 



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other remedies such as regular elections or disqualification provisions are not available. As Thomas Cronin has commented, ‘voters have generally preferred to reserve the recall for its original intended use (to weed out malfeasance and corruption) and to settle political questions at regular elections’.79 The recall is a device premised on the delegate theory of representation. Consequently, a delegate who does not pay attention to the wishes of the electorate risks not being able to continue in the role. So, should representatives fail to meet the standards required of them or to speak properly on behalf of their constituents (without substituting too much of their own discretion), they can be ‘recalled’ and replaced with another.80 Recall elections extend the boundaries of the delegate theory of representation in two ways. First, in an electoral system involving the possibility of a recall, the judging of the representative and the consequent ties of accountability are always active, rather than just at the single moment of the election. Secondly, the representative’s security of office is also weakened by this model, as a seat could be lost at any stage. Both of these factors have the potential to affect the representative’s behaviour during office. This does not always mean that the ever-present shadow of a recall election will act as a negative internal constraint on the Member’s conduct; it might also mean that a Member seeks the approval of her constituents before acting, or communicates more frequently or in more depth with constituents about her activities.

B.  The Practice of the Recall The recall has a history of several thousand years. It is said to have first been practised in ancient Rome, when one tribune member put forward a bill deposing another which was then endorsed by the voters.81 In the common law world, it seems that the recall was first mentioned by the Levellers, the English political reform movement, which included it in their manifesto entitled Agreement of the People.82 It also found favour with Karl Marx, who spoke of its use during the Paris Commune with approval in The Civil War in France.83 Despite this long history, the recall is not a frequent feature of western democratic systems.84 Countries using the recall (at various levels of government) include Venezuela, Switzerland, the Philippines, Argentina and several states of 79   T Cronin, Direct Democracy: The Politics of Initiative, Referendum and Recall (Harvard University Press, Cambridge, Mass, 1989) 143. 80   Here I have focused only on the type of recall election where the recall can be initiated and decided on by the people. In some States the recall is made by branch of government, usually the legislature. 81   JF Zimmerman, The Recall: Tribunal of the People (Praeger, Westport, 1997) 6. 82   John Lilburne et al, An Agreement of the Free People of England (May 1649), Art XXIX. 83   K Marx, ‘The Civil War in France’ (1871) in H Draper (ed), Karl Marx and Frederick Engels: Writings on the Paris Commune (Monthly Review Press, New York, 1971) 74. 84   The Communist nations of North Korea, China, Vietnam and Cuba all have provisions for recall in their constitutions. See Venice Commission, Report on the Imperative Mandate and Similar Practices (Venice, June 2009).

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the United States, where probably its most high-profile use is in California. The recall was the device that saw Arnold Schwarzenegger take the governorship of California in 2003, after Governor Gray Davis was subject to a successful recall election following a petition signed by 1.66 million voters calling for his removal from office. In the Commonwealth, the recall is employed only in the province of British Columbia. In British Columbia, the Recall and Initiative Act 1995 provides that voters can petition for the removal of a member of the provincial Legislative Assembly on any grounds. The petition will be successful (and the recall immediately effective) should it be signed by 40 per cent of the voters who were registered in the Member’s electoral district at the last election. Sixty days are allowed for the collection of the signatures. A recall petition cannot be conducted in the first 18 months following a Member’s election. Should the UK join British Columbia in its use of the recall, the British version, as expected to be legislated for in the 2011–12 parliamentary session, will allow ‘voters to force a by-election where an MP is found to have engaged in serious wrongdoing and having had a petition calling for a by-election signed by 10% of his or her constituents’.85 In December 2011 the Recall of MPs draft Bill and accompanying White Paper were issued. Although the details of how the British version of the recall election are still undetermined, the next section considers some of the issues with recall elections parliamentarians and interested parties will need to examine in light of the current proposals.

C.  Issues with the Recall The first issue in recall design is the question of how to structure the process of removing a representative from office. British Columbia appears to be unique in having the representative lose his seat upon a successful recall petition. A by-­ election is then held to replace the deposed Member. This process has been criticised, not least by Elections BC, the electoral body responsible for administering the British Columbia process, since ‘any petition process will inherently lack the formality, rigor and safeguards appropriate to such a serious consequence [the loss of a seat]’.86 To avoid these issues, safeguard the integrity of the recall process and improve voter confidence, Elections BC has recommended that a multi-step process, as seen in other jurisdictions, be adopted.87 The multi-step process, as practised elsewhere, sees a separation of the petition stage from the recall election. Some jurisdictions, such as California, hold a combined recall and successor ballot, while others hold two ballots at different intervals: one ballot on the question of recalling a particular representative, and then a 85   Conservative and Liberal Democrat parties, The Coalition: our programme for government (Cabinet Office, London, May 2010) 27. 86   Elections BC, Report of the Chief Electoral Officer on the Recall Process in British Columbia (Elections BC, Victoria, November 2003) 15. 87   Ibid, 16.



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second ballot at a later date on who should be the representative’s successor. The latter approach has the disadvantages of adding cost and time to the process, with the added risk of creating voter ennui along the way as the ballots proceed. This is the process provided for in the UK draft Bill. Voters will have eight weeks after a petition has been initiated to sign the petition, and if the threshold is reached, the MP in question’s seat will automatically be vacated and a by-election (in which that MP may be able to stand) will be held. There is no international consensus as to whether there ought to be grounds for a recall election. Some would say that any restriction infringes a voter’s political rights, the expression of which should be unfettered, while others wish to protect representatives from malicious petitions or attempts from disgruntled voters to re-run an election that did not go their way. In British Columbia, proponents of a recall petition need not put forward any reasons why a representative should lose her seat. A similar situation applies in some states of the US, while in others, proponents of a recall petition need to frame their objections within certain statutory grounds. For example, in Alaska these are lack of fitness, incompetence, neglect of duties or corruption;88 in Kansas they are conviction for a felony, misconduct in office, incompetence or failure to perform duties prescribed by law;89 and in Rhode Island they are indictment for a felony, conviction for a misdemeanour or being found in violation of the ethics code by an ethics commission.90 In the UK, the expectation is that a recall petition will be activated where there is ‘serious wrongdoing’. Although the approach in the draft bill is to avoid defining this term in statute, what might be covered by this reference? The Recall of MPs draft bill sets forth two situations where a recall petition might be triggered. The first option occurs when an MP is convicted of an offence in the UK and receives a custodial sentence of 12 months or less. This ties into the provision in the Representation of the People Act 1981 where automatic disqualification of an MP follows upon a custodial sentence of 12 months or more. The second situation arises when the House of Commons makes a resolution that the MP should be subject to a recall petition. This scenario is designed to allow the Comons to use its privilege of self-regulation without concerns about judicial oversight or interference, and to keep the use of the recall petition within the confines of political conduct rather than political popularity. Previous cases of misconduct resulting in expulsion and suspension provide us with some useful precedents for the House of Commons’ use of this power. A breach of the Code of Conduct or an adverse finding from the Privileges Committee following an IPSA investigation would be other possible reasons for recall. Clearly misconduct of a financial nature is most likely to be one of the more frequent problems but, as we have seen, MPs have shown themselves to behave sometimes in quite unpredictable ways. A recall election might have proved a useful option in   Alaska Statutes, Title XV, c 45, § 510.   Kansas Statutes, c 25-4302. 90   Constitution of the State of Rhode Island, Art IV, § 1. 88 89

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the case of the New Zealand MP David Garrett, who, while he had broken no laws, fell short of generally-accepted standards of behaviour when he admitted using the identity of a dead child to obtain a passport some years before entering Parliament.91 Should such a sentence be passed or resolution be made, the Speaker of the House of Commons will notify the returning officer of the relevant constituency to open a recall petition. A further option mooted in the White Paper is to empower constituents to petition the House of Commons to move to the full petition stage where serious wrongdoing had occurred. This was omitted from the draft bill on the basis that it would require either a statutory definition of serious wrongdoing, or for the House of Commons to make an independent assessment of the MP’s conduct, thus lengthening the process and associated costs. The persuasiveness of these points is not immediately clear. Given that the recall petition was proposed as a way of delivering more control over representatives’ conduct to voters, are these sufficient justifications for excluding them from the process at this stage? Allowing the House of Commons to retain control over whether a recall petition should be initiated will likely do nothing to assuage the concerns over parliamentary self-interest that led to the enactment of the Parliamentary Standards Act 2009. It is also not obvious that an increase in the time and costs associated with recall elections warrants striking the balance of power between voters and Parliament in this way. Requiring reasons can send an early signal that frivolous or vexatious petitions will not be entertained (although of course such petitions are unlikely to proceed to a recall election, they can still take up administrative time and money). In requiring reasons to be given for triggering a petition for the recall of a representative, the framers of any such restriction need to bear in mind two points: a) how much to define the restriction (and thereby enhance or weaken the representative’s security of office – or put otherwise, how strong the ties of accountability between voters and representatives should be); and b) whether the courts should be allowed any jurisdiction over the question of whether the restriction applies. On the latter question the current draft bill deals with this issue by avoiding a statutory definition of ‘serious wrongdoing’ and making use of the privilege of self-regulation; for additional security, I favour the use of an ouster clause, as with the Parliamentary Standards Act since inviting courts to consider the suitability of representatives to continue in office by permitting them to decide whether the grounds are satisfied brings the courts too close to the boundary between judicial matters which they might legitimately consider, and political matters which are more properly the preserve of the people. This approach would be especially salient if a recall election were to be premised on a finding under privilege that an MP had fallen short of expected standards of conduct. 91   ‘Garrett: “It is untenable for me to remain”’, NZ Herald, 23 September 2010. He resigned from his party and then Parliament in quick succession.

Conclusion 149 In all jurisdictions there is a minimum number of voters needed to express their desire for a recall election before it can occur. Thresholds vary, but they generally fall in the range of 12–25 per cent of voters within the relevant constituency.92 (British Columbia and Kansas are unusual in requiring 40 per cent). The UK draft bill sets the figure at 10 per cent. Which form the eventual legislation on recall elections will take will be interesting to see; in particular, where will the balance of power between representatives and the people be set, and what exactly will be the misconduct that will trigger a recall? Regardless of the answers, the institution of recall elections is one of the most exciting developments in electoral legislation for many years, and the final form of the legislation will be eagerly awaited.

III. Conclusion Most Members of Parliament leave of their own accord at the end of their political career, or have their parliamentary career ended for them at the ballot box. It is unusual for an MP to be removed by his or her peers, but it can happen, and as the fate of the Parliamentary Standards Bill in the House of Commons and the House of Lords shows, Parliament still jealously guards its ability to regulate its own affairs, not least the determination of its composition. Furthermore, the history of the modern Parliament’s treatment of expulsion cases reveals that Parliament has shown itself able to transcend party lines in making these decisions. But the events that led to the enactment of the Parliamentary Standards Act 2009 were also notable for their role in driving political parties to devise an alternative way to remove misbehaving MPs. The recall election, promised by all three major parties in the 2010 campaign, and to be realised in a Recall of MPs Bill under the Conservative-Liberal Democrat Coalition Government at some point during the current parliamentary term, represents a significant shift in the ages-old means of using parliamentary privilege to deal with errant MPs: the electorate’s power over representatives will not end at the moment of election but will, both in theory (as under the ideas of promissory accountability) and in practice, last the entirety of the parliamentary term.

92   An exception is Switzerland, which requires an absolute number of voters in a canton (ranging from 30,000 in Berne to 1,000 in Schaffhausen), rather than a percentage: Venice Commission, above n 84.

7 Reconceptualising and Reforming Electoral Law In chapter four we referred to and thanked those who were ‘touchy, vindictive, or litigious enough’ to challenge the outcome of an election. To that we should add our thanks to those who objected to other aspects of election law they thought unjust, or who simply fell foul of existing laws surrounding the election of MPs. To the likes of Matthew de Cranthorn, Garry Allighan, Tony Benn, Patrick Jepson and Robert Watkins, we have much to be grateful for. Their efforts have seen the law challenged, clarified, muddied, reformed, taken in new directions and back again. In their attempts to be elected or remain so, they have provided us, perhaps unwittingly in some instances, with some of the case studies needed to examine the multifaceted aspects of how parliamentary candidacy and membership are regulated. In chapters three to six, we looked in some depth at the moments of eligibility, nomination, candidate selection, disputed election and removal from Parliament, and considered some of the legal problems which had arisen, calling in aid suggestions from other jurisdictions, human rights provisions or proposing reforms to bring the law into line with the real nature of the issue. Now we reflect on the three questions posed in the introductory chapter: the role of law in the process of electing a representative; what this research has revealed about the nature of the relevant law; and what the implications are in thinking about this aspect of election law in this way. In short, what can be said about the past and future of achieving representation through the medium of law?

I.  The Nature of Achieving Parliamentary Representation through Law A recurring theme which has arisen during the course of analysing the material uncovered and presented in the preceding chapters is a question about the true nature of electoral law. How do we think of it, and more importantly, how should we think of it? The historical investigation has revealed that electoral law, outside the issue of conducting the actual election itself, has mostly been treated and so structured as



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a form of private law. Although at some points of the electoral process are treated as public matters, this is not uniformly the case. This private law approach manifests itself in several ways. For example, in chapter four, even though the forum shifted from the courts to Parliament and back again, we saw how election petitions mirror a dispute between individuals, with the State providing little assist­ ance or involvement in the dispute. Nor is there any overarching State-provided means for the monitoring of corruption during elections, even though attacks on electoral integrity undermine the very foundations of representative democracy. In chapter five, the legal conception of how candidate selection could be litigated remains set very firmly in a private individualistic mode: political parties are viewed either as clubs or as employers, rather than conduits of public power. In a departure from that view, this book argues that electoral law should rightly be seen as coming within public law, for several reasons. The first is a practical one, focusing on the reality of the situation. Electoral law, as repeatedly highlighted at each stage of candidature, and self-evidently during parliamentary membership, is concerned with political processes and outcomes. There are few areas regulated by law that could be said to be closer to public affairs than elections and representation. Electoral law regulates the distribution of political power in society. Decisions at any stage of the election process can affect who might be elected to Parliament, which could have flow-on effects for government formation, policy development and the legislative programme. Electoral law is at the fundament of power. Despite occupying such a central role in our constitutional system, at this point it should be conceded that election law is still to come wholly to terms with the political subject matter it regulates. The very many different ways of looking at political representation evident in political theory have not been fully embraced or responded to by the law. Tracing the development of political thinking over the centuries has revealed the many and varied views on the representative: from the ascending and descending theories of power, the delegate and trustee roles, identity representation and party representation all in evidence. However, when we look at legal pronouncements on representation in the form of the old writs, the thinking of jurists or case law, we see that representation is still very much thought of as a choice between delegate or trustee roles, with the latter, Burkean view being preferred. An additional interest of the law is the representative’s character and competency, as illustrated by the writs’ request for ‘sufficient and discreet’ members to serve, jurists’ concerns that representatives be incorruptible, or the various requirements in the eligibility provisions concerned with ensuring members are suitable for office in a variety of ways, or Parliament’s concern with the worthiness of its members. The way in which the law regulates representation is individualistic rather than seeing the representative as part of a wider system. This disjuncture has contributed to the perception that representation – and therefore its regulation – is essentially a private matter, with the consequence that the State is kept at a distance. So, for example, when representatives are thought of primarily as representatives of, and accountable to, an agglomeration of individuals

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within a defined geographic area, it is unsurprising that, for instance, when political parties make changes to effect their identity representation goals, as with the Labour Party’s all-women shortlists that triggered the litigation discussed in chapter five, the law experienced a state of confusion before reverting back to the view that parties are private associations and their affairs were to be litigated accordingly. This shortness of focus has inhibited a closer look at what representatives are and their place in the political system, and has thus stymied the taking into account the insights of political theory and the developments of political practice. If these political matters are to be swept to one side, it should at least be only after they have been subject to proper deliberation, rather than they be kept at the periphery of legal consideration through inadvertent legal short-sightedness or historical accident. The second justification for placing representation law in the public law arena is a legal one. In recent years, the law has moved closer to placing electoral law and its actors within the framework of State oversight and involvement. We have seen this most clearly in the increased regulation of party finances and party registration requirements. Parties also receive benefits in kind from the State in the form of free broadcasting for their campaign messages. It also exists where government departments pay the insurance policies of regional returning officers. This process of public law integration is not yet as advanced as it could be. Nonetheless, the fact that this integration has happened indicates that electoral law is moving closer to being part of the public realm rather than counter-intuitively distancing itself from the arm of the State. In addition to these domestic developments, electoral law in the form of the duty to hold free elections and the encompassed right of candidacy is now also enshrined in the ECHR, where a number of cases have shed light on the meaning of representation and the representative’s functions. This too illustrates how the law of electing and being elected is being given status and meaning at some of the highest levels. Lastly, electoral law is best seen as public in nature from a conceptual perspective. Public law concerns the position of the State, its functions, the relationship between different branches of government in the form of constitutional principles and conventions, and often, the relationship between the State and the individual in the form of human rights. These are also the concerns of candidacy and membership law. The law of representation intersects with the concerns of public law at several points. The concerns expressed in recent ECHR case law on P1-3 over a potential candidate’s ability to undermine the integrity and functioning of the constitutional system were given quite some weight in evaluating restrictions on candidacy. Chapter three investigated candidate eligibility provisions, chief amongst which is the House of Commons Disqualification Act 1975. A strong thread running through this statute is the disqualification from standing of those involved in the extra-parliamentary executive or judicial branches of government; in other words, the need to maintain a strict separation of personnel between the legislative



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branch and these other two. Also important in the history of eligibility law are concerns to establish the efficacy of Parliament, the sovereign legal and political power in the nation. Furthermore, many points of electoral law involve questions of human rights, particularly those rights deemed fundamental for participation in the political process. In chapter two we saw how the content of the terms ‘representative’ or ‘candidate’ has been filled in with reference to representatives’ ability to exercise their rights of freedom of expression on behalf of their constituents. In chapter three, the analysis of how low the bar should be set for eligibility to stand for election implicates not only the right to stand for election, but also voters’ freedom of choice over those vying to become their representative. Also salient, at the microlevel of specific restrictions on candidature, are non-discrimination rights: restrictions involving religion and age have recently been removed in the House of Commons. Lastly, freedom of association and expression concerns, both central to the fulfilment of political identity and action, arise not only when a political party is making decisions over whom it may select as a candidate, as discussed in chapter five; they also come up when looking at parties’ abilities to reconfigure themselves or free themselves of troublesome members during the parliamentary term. Taking into account the combined weight of these factors – practical, legal, and conceptual – it is suggested that the old way of looking at the law of representation is no longer appropriate. Becoming elected is no longer about claiming the seat as an inheritance or familial right; nor are its disputes or its regulation a matter of individual interest only. The integrity of the electoral system and its central role in the constitution are overwhelmingly matters of public interest and importance. The opening chapter of this book asked what the nature of electoral law was. Loughlin’s position that public law is a unique field of law can be applied to electoral law – or, as Mr Justice Gould said, over 300 years ago, this is its own ‘particular cunning’.

II.  New Directions for Candidacy and Membership Law? Since this book has highlighted the disconnected nature of this area of law, and at the same time argued that parliamentary candidacy and membership law belongs within public not private law, we cannot now leave matters halfway; some solutions must be proposed. My starting point is that the State needs to take on more responsibility for electoral law. Moreover, it needs to do so in a systematic way to avoid adding to the already fragmented state of the law.

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A.  A new Speaker’s Conference The traditional forum for considering reforms of electoral law is the Speaker’s Conference. Parliament is an especially apt place – both physically and symbolic­ ally – for a reconsideration of this area of law, because Parliament is the hoped-for destination of most candidates, and the place where they hope their eventual membership will be a productive and long-lasting one. However, a Speaker’s Conference should not confine itself to hearing only the views of MPs or prospective MPs – many more are touched by or are interested in this area of the law. Particularly helpful would be the insights of those who have to administer electoral law, and those who make it their profession to think about it. A Speaker’s Conference also has the benefit that engaging in a first principles review of electoral law would provide a useful opportunity for MPs to redeem themselves in the public eye following the exposure of many Members’ misuse of the parliamentary expenses regime. It is noteworthy that reforms to both candidate selection processes and the voting system itself have been proposed as a way of restoring trust in this area, but in my opinion something more is required than change to parts of the system without considering the whole. Moreover, this type of review, evidence-based and unhurried, is preferable to continuing the pattern of ad hoc and crisis-driven change that we have seen follow on from the MPs’ expenses scandal.1 The Speaker’s Conference was revived in 2008 to examine issues of identity representation, but it is capable of a much bolder and more fundamental task. What is needed is a more comprehensive and principled overview. The first thing any body which has to reflect on electoral law must do is to address the context of candidacy and membership. This means thinking about these forms of political and legal activity as this book suggests, as the subjects of public law, even going so far as to consider whether political parties and their role in representation and political life more generally should be acknowledged formally in legislation. It also means engaging with the political world in which these activities take place. This means thinking beyond our conceptions of representation as a geographically-based activity, with constituents existing only within those physical boundaries; it means examining the different ways in which representation is achieved. The impact of identity representation and party representation must also be examined to see if they can inform legal reform as well as political developments. This is an opportunity for Parliament to consider the factors by which it is brought into being. Attention also needs to be paid to the increasing importance of human rights law and its impact on candidacy and membership. If this is taken on board then the law can move forward with a more modern and well-rounded conception of the area it is regulating. Even if examined and then discarded, at least we would have the comfort of knowing that the basis of legal 1   See, eg, the Parliamentary Standards Act 2009, which was on the statute books within weeks of its first reading and was subject to much critique and consequently change during its passage through Parliament.



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reform is premised on deliberately narrower thinking about representation rather than an accidental divergence or historical lagging from its political context. Such an approach would do much to legitimise any reforms proposed.

Consolidation/systematisation of electoral law The law of representation is piecemeal in nature. Thought should be given to bringing together these connected areas into one place, either within the Representation of the People Act, or within a separate statute dealing with candidacy and membership issues, covering the stages of eligibility, nomination, candidate selection and parliamentary membership. They are linked together in practice and the law should reflect that fact.

Consolidation of eligibility law In particular, attention needs to be paid to candidate eligibility law – this area would benefit from the bringing together in one place of candidate qualifications, disqualifications and the means for dealing with queries over eligibility. The remaining common law eligibility rules should be made statutory, as in the case of mental health eligibility, or discarded, as with the ignored disability disqualification. This would bring more clarity to this area of candidacy law. Furthermore, as part of this exercise, thought needs to be given as to whether the existing eligibility rules are satisfactory. In chapter three, a number of inconsistencies in the present law were revealed and various reforms proposed. It was argued that the prohibition on public servant candidature should be relaxed in line with the New Zealand model. There is also the question of whether it is right to allow candidacies from non-British citizens, or members of a foreign legislature, given the importance of avoiding conflicts of interest and maintaining national loyalty evident in the history of eligibility rules. Moreover, whether residency in the constituency one wishes to stand for should be required for candidates, as it is with voters, should also be re-examined.

The role of the Electoral Commission Central to any review of candidacy and membership law must be a rethinking of the role of the Electoral Commission. If the State, in the form of Parliament and the legal system, is to acknowledge the public nature of representation law, then it follows that it would not be inappropriate for involvement in this area to be re-located from the private law arena to the public and placed in the hands of the Electoral Commission. This body already administers and monitors the financial aspects of electoral probity; its remit could be expanded to cover other aspects as well. Two interconnected areas particularly warrant reconsideration. The first is electoral corruption, the second is election petitions. For some time, a consensus existed that corruption was no longer an issue in elections. However, some high-profile cases and recent research have shown that corruption is plaguing elections again. The State has a strong interest in ensuring

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that the election outcome is legitimate, so it should be proactive in doing so. Remedying problems should not be left in the hands of individuals to ferret out and bring to the law’s attention for resolution. Since petitions are an indirect means of exposing and punishing corruption, it is proposed that the system of commissions of inquiry into electoral corruption which existed until 1969 be restored and the work be allocated to the Electoral Commission. As part of this reform, the Commission should be able to bring prosecutions against those it investigates for electoral malpractice. Also important is the role of ensuring that the outcome of an election is the right one. But at present, challenging an election is in the hands of individuals and treated as if it were a private concern. It is proposed that a public interest petitioner position should be established, and that that role be taken on by the Electoral Commission. Useful models exist for this in the electoral field in Australia, and in the UK, in the equalities jurisdiction.

C.  Other reforms Nominations A Speaker’s Conference provides an ideal opportunity to provide clarity to some uncertainties in the law. For example, I would encourage the Conference to refute the persisting view that a returning officer has a residual common law power to refuse nomination. As well as this point, there is one small area of nomination law in need of further clarification: how is a returning officer to judge which candidate descriptors are ‘obscene, racist or an incitement to crime’ and which are legitimate political stances?

Candidate selection litigation The change suggested here is not so much a legislative one as a conceptual shift, in line with developments in political thinking and practice. If we accept that the activities of political parties in selecting candidates to contest elections are closely linked to the formation of Parliament, then it should make sense to treat their disputes in this regard as matters of public law. In such cases then, recourse can be had to the rules of public law in deciding these issues, with one major advantage being that both parties and their disputants would be able to draw on a rich bed of rights and freedoms law to argue their cases, rather than a strict interpretation of the party rulebook. While the Speaker’s Conference may not agree with this conclusion, the issue should nonetheless be discussed, given the amount of conceptual confusion in this area of the law of late.

Petitions The election petition system has been largely untouched since the Victorian reforms. At that point in history, parties were fledgling players in the electoral



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contest, and the main concern was to eliminate the corruption which had plagued both the election itself and the deciding of disputed elections by Parliament. These days, elections are contested in the main by parties; but it seems that corruption is on the rise again. The changes which are put forward below are designed to address both these phenomena. The first point for reform is the issue of the parties to a petition. As well as the new role suggested for the Electoral Commission, alternatively, or in addition, the returning officer of the relevant constituency should also be required to appear at a petition hearing. Political parties, given their role on the electoral scene, should also be able to act as petitioners. Next is the question of accessibility to the petition process – if these suggestions prove unpalatable then legal aid should be provided more readily so that petitions can more easily be brought by those wishing to challenge the outcome. Furthermore, the amount required as security for costs should be lowered in the interests of improving access to justice. Lastly, in the case of petitions themselves, it is also worth bearing in mind that petitions might now be brought on human rights grounds. The Speaker’s Conference would be the ideal place to make these points clear. To bring these reforms to fruition will require much work and, most of all, patience. Paradoxically, electoral law is rarely a priority for those who owe their place in Parliament to it. It is for this reason that electoral law has developed at a very slow pace over the centuries of its existence, and reform has come usually only when the system is close to breaking down or is overtaken by political events. We should not wait for that moment. The business of putting our representatives in Parliament and keeping them there until we decide on others to represent us is deserving of sustained reflection and principled reform.

BIBLIOGRAPHY K Alderman, ‘Stranger than Fiction? The Selection of the Conservative and Labour London Mayoral Candidates’ (2000) 53 Parliamentary Affairs 737 R Ali and C O’Cinneide, Our House? Race and representation in British politics (Institute for Public Policy, London, 2002) L Alston (ed), De Republica Anglorum: a discourse on the Commonwealth of England (Cambridge University Press, Cambridge, 1906) WR Anson, The Law and Custom of the Constitution: vol 1 Parliament, 5th edn (Clarendon Press, Oxford, 1922) D Ashton and PW Reid, Ashton and Reid on Club Law (Jordans, London, 2005) D Avnon, ‘Parties Laws in Democratic Systems of Government’ (1995) 1(2) Journal of Legislative Studies 283 W Bagehot, The English Constitution (Oxford University Press, London, 1867) G Baker, ‘Revisiting the Concept of Representation’ (2006) 59(1) Parliamentary Affairs 155 T Ball, James Mill Political Writings (Cambridge University Press, Cambridge, 1992) HW Ballantine, Blackstone’s Commentaries (Blackstone Institute, Chicago, Ill, 1914) A Barker, ‘Disqualification from the House – the “Reverse” System’ (1958) 12(3) Parliamentary Affairs 469 E Barker (ed), Social Contract – Essays by Locke, Hume and Rousseau (Oxford University Press, London, 1960) S Barnea, ‘Reforming Candidate Selection Methods’ (2007) 13(3) Party Politics 375 BBC, ‘1981: Hunger striker elected MP’, BBC On This Day (10 April 1981). ——, ‘Vote 2001 Results and Constituencies’, BBC News Online (14 August 2001) ——, ‘Apologies for “idiots” election ban’, BBC News Online (4 April 2007) ——, ‘Canoe couple remanded in custody’ BBC News Online (18 January 2008) J Beatson, S Grosz et al, Human Rights: Judicial Protection in the United Kingdom (Sweet & Maxwell, London, 2008) SH Beer, ‘The Representation of Interests in British Government: Historical Background’ (1957) 2(3) American Political Science Review 613 S Bennett, Australia’s Political Parties: More Regulation? (Australian Parliamentary Library Research Paper, Canberra, 2002) G Beyer, ‘Valedictory speech’ (NZ House of Representatives, Wellington, 14 February 2007) I van Biezen and J Hopkin (eds), Devolution and Electoral Politics (Manchester University Press, Manchester, 2006) AH Birch, Representative and Responsible Government (Allen & Unwin, London, 1964) ——, Representation (Macmillan Press, London, 1972) R Blackburn (ed), Rights of Citizenship (Mansell Publishing, London, 1993) ——, The Electoral System in Britain (Macmillan, London, 1995) R Blackburn and A Kennon, Griffith and Ryle on Parliament, 2nd edn (Sweet & Maxwell, Singapore, 2002)

160

Bibliography

N Bobbio, The Age of Rights (trans A Cameron) (Polity Press, Cambridge, 1996) J Boston et al, New Zealand under MMP (Auckland University Press, Auckland, 1996) J Booth, ‘Labour sets up discipline panel to deselect MPs over expenses scandal’, The Times (19 May 2009) D Boothroyd, ‘Members expelled from the House of Commons since the Restoration’ (2005) http://www.election.demon.co.uk/expulsions.html S Bowler, ‘Voter Perceptions and Party Strategies’ (1990) 23(1) Comparative Politics 61 J Bowring (ed), Works of Jeremy Bentham Vol IX (Edinburgh, William Tait, 1843) J Bradbury et al, ‘Candidate Selection, Devolution and Modernization: The Selection of Labour Party Candidates for the 1999 Scottish Parliament and Welsh Assembly Elections’ (2000) 10 British Elections and Parties Review 151 G Brennan and A Hamlin, ‘On Political Representation’ (1999) 29 British Journal of Political Science 109 G Brown, ‘Statement on Constitutional Renewal’ (10 June 2009), http://webarchive. nationalarchives.gov.uk/20091115032548/number10.gov.uk/page19579 LF Brown, ‘Ideas of Representation From Elizabeth to Charles II’ (1939) 9 Journal of Modern History 23 N Busby, ‘Sex Equality in Political Candidature: Supply and Demand Factors and the Role of the Law’ (2003) 66 MLR 245 N Busby and R Smith, ‘Nothing to Fear? Equal Representation in the Scottish Parliament and the Fear of Legal Challenge’ (2000) 2 Mountbatten Journal of Legal Studies 33 A Butler and P Butler, The New Zealand Bill of Rights Act: a commentary (LexisNexis, Wellington, 2005) D Butler, The Electoral System in Britain 1918–1951 (Clarendon Press, Oxford, 1953) ——, ‘Electoral Reform’ (2004) 57(4) Parliamentary Affairs 734 D Butler, V Bogdanor and R Summers (eds), The Law, Politics, and the Constitution (Oxford University Press, Oxford, 1999) CG Bayne, ‘The First House of Commons of Queen Elizabeth’ (1908) 23 English Historical Review 455 E Campbell, ‘Expulsion of Members of Parliament’ (1971) 21 University of Toronto Law Journal 15 T Campbell, KD Ewing and A Tomkins (eds), Sceptical essays on human rights (Oxford University Press, Oxford, 2001) G Carney, Members of Parliament: law and ethics (Prospect Media, St Leonards, NSW, 2000) M Caul, ‘Political Parties and the Adoption of Candidate Gender Quotas: A Cross-National Analysis’ (2001) 4 Journal of Politics 1214 GL Cherry, ‘Influence of Irregularities in Contested Elections upon Election Policy during the Reign of William III’ (1955) XXVII Journal of Modern History 109 S Child, Politico’s Guide to Parliament, 2nd edn (Politico’s Publishing, London, 2002) MV Clarke, Medieval Representation and Consent (Longmans, Green & Co, London, 1936) R Clayton et al (eds), Parker’s Law and Conduct of Elections (LexisNexis, London, 1996) R Clayton and H Tomlinson, The Law of Human Rights, 2nd edn (Oxford University Press, Oxford, 2009) Codex Iuris Canonici (1983) E Coke, Institutes of the Laws of England (1644), vol 4 GDH Cole, Social Theory (Methuen, London, 1920) Collected Edition of the Travaux Préparatoires of the ECHR, Vol VIII (Martinus Nijhoff, Dordrecht, 1985)

Bibliography 161 Committee on Standards in Public Life (1994) Cm 2850-1 Committee on Standards on Public Life, ‘CSPL to Bring Forward Review of MPs’ Allowances’ (Press Release, 31 March 2009) Conclusions on Review of the Law Relating to Parliamentary Elections Cmnd 3717 (HMSO, London, 1968) Conference on Electoral Law Cmnd 3275 (HMSO, London, 1967) J Connif, ‘Burke, Bristol, and the Concept of Representation’ (1977) 30 Western Political Quarterly 329 JC Courtney, ‘Recognition of Canadian Political Parties in Parliament and in Law’ (1978) 11(1) Canadian Journal of Political Science 33 P Cowley and M Stuart, Leaving the Tories, Joining Labour: Notes on floor-crossers since 1997 (ERSC Research Paper, 17 January 2005) H Cox, Antient Parliamentary Elections (Longmans, London, 1868) T Cronin, Direct Democracy: The Politics of Initiative, Referendum and Recall (Harvard University Press, Cambridge, Mass, 1989) Crown Law Office, ‘Legal Advice: Consistency with the New Zealand Bill of Rights Act 1990: Electoral (Integrity) Amendment Bill’ (Crown Law Office, Wellington, 3 November 2005) RA Dahl, On Democracy (Yale University Press, New Haven, Conn, 1998) H Daubler-Gmelin and U Gacek, ‘Application to initiate a monitoring procedure to investigate electoral fraud in the United Kingdom’ (Council of Europe, Strasbourg, 22 January 2008) RG Davies and JH Denton (eds), The English Parliament in the Middle Ages (Manchester University Press, Manchester, 1981) Department for Communities and Local Government, A Framework for Fairness (June 2007) Department for Constitutional Affairs, Voting Rights of Convicted Prisoners Detained within the United Kingdom (December 2006) AV Dicey, Introduction to the Study of The Law of the Constitution, 8th edn (1915, rep Liberty Fund, Indianapolis, 1982) ‘Disqualification’ (1974) 230 Commons Journal 71 V Dodd, ‘Law change urged so Labour Party can have all-black shortlists’, Guardian, 3 September 2007 H Draper (ed), Karl Marx and Frederick Engels: Writings on the Paris Commune (Monthly Review Press, New York, 1971) M Duverger, Political Parties: Their Organization and Activity in the Modern State, 2nd edn (trans B and R North) (Methuen, London, 1959) JG Edwards, ‘The Emergence of Majority Rule in English Parliamentary Elections’ (1964) (5th series) Transactions of the Royal Historical Society 175 Elections BC, Report of the Chief Electoral Officer on the Recall Process in British Columbia (Elections BC, Victoria, November 2003) Electoral Commission, ‘Allegations of electoral malpractice at the 2008 elections in England and Wales’ (Electoral Commission, London, April 2009) ——, ‘Guidance notes on registering as a political party’ (Electoral Commission, London, 2006) K Elgar, ‘The legal standing of political parties’ (1997) Aug Australian Lawyer 12 GR Elton, The Parliament of England 1559–1581 (Cambridge University Press, Cambridge, 1986)

162

Bibliography

T Erskine May, Constitutional History of England, 7th edn (Longmans, Green & Co, London, 1882) H Eulau and PD Karps, ‘The Puzzle of Representation: Specifying Components of Responsiveness’ (1977) 2(3) Legislative Studies Quarterly 233 H Eulau et al, ‘The Role of the Representative: some empirical observations on the theory of Edmund Burke’ (1959) 53(3) American Political Science Review 742 KD Ewing, ‘Transparency, Accountability and Equality: The Political Parties, Elections and Referendums Act 2000’ [2001] PL 542 ——, The Cost of Democracy (Hart Publishing, Oxford, 2007) JA Fairlie, ‘The Nature of Political Representation, II’ (1940) 34(3) American Political Science Review 456 K Feiling, A history of the Tory party 1640–1714 (Clarendon Press, Oxford, 1924) Final Report of the Committee on Electoral Law Reform Cmd 7286 (HMSO, London, 1947) J Fisher, British Political Parties (Prentice Hall, London, 1996) Commissioner P Flynn, Question 96/C 305/07 (February 1996) ——, Question E-1556 (June 1998) JRS Forbes, Judicial Review of Political Parties (Australian Parliamentary Library Research Paper, Canberra, 1996) R Fralin, ‘The Evolution of Rousseau’s View of Representative Government’ (1978) 6(4) Political Theory 517 M Gallagher and M Marsh (eds), Candidate Selection in Comparative Perspective: The Secret Garden of Politics (Sage, London, 1988) O Gay, The House of Commons (Removal of Clergy Disqualification) Bill (House of Commons Library Research Paper, London, 2001) ——, Disqualification for membership of the House of Commons (House of Commons Standard Note, London, 13 October 2004) O Gay and P Leopold (eds), Conduct Unbecoming (Politico’s, London, 2004) A Geddis, ‘Gang Aft A-Gley: New Zealand’s Attempt To Combat “Party Hopping” By Elected Representatives’ (2002) 1(4) Election Law Journal 557 C Given-Wilson, The Parliament Rolls of Medieval England 1275-1504 (Boydell & Brewer, Woodbridge, 2005) PGW Glare (ed), Oxford Latin Dictionary (Clarendon Press, Oxford, 1982) N Gordon, ‘The Constitutional Right to Candidacy’ (1976) 91(3) Political Science Quarterly 471 P Goren, ‘Party Identification and Core Political Values’ (2005) 49(4) American Journal of Political Science 881 T Grew, ‘Estonian gay activist to stand for parliament’, Pink News Online (6 December 2006) A Gutmann (ed), Multiculturalism: Examining the ‘Politics of Recognition’ (Princeton University Press, Princeton, NJ, 1994) A Gutmann and D Thompson, Democracy and Disagreement (Harvard University Press, Cambridge, Mass, 1997) Lord Hailsham, ‘Richard Dimbleby Lecture’ (21 October 1976) The Listener 496, http:// www.bbc.co.uk/programmes/p00fr9gh. Hansard Society, Report on Electoral Reform (Hansard Society, London, June 1976) Hatsell’s Precedents I (Hansard, London, 1818) DJ Harris, M O’Boyle and C Warbrick, Law of the European Convention on Human Rights (Butterworths, London, 1995)

Bibliography 163 GL Haskins, ‘Parliament in the Later Middle Ages’ (1947) 52 American Historical Review 667 D Hayes, ‘Candidate Qualities through a Partisan Lens: A Theory of Trait Ownership’ (2005) 49(4) American Journal of Political Science 908 RY Hazan and G Rahat, Democracy within Parties (Oxford University Press, Oxford, 2010) LM Helmore, Corrupt and Illegal Practices (Routledge, London, 1967) D Hirst, ‘Elections and the Privileges of the House of Commons in the early Seventeenth Century: Confrontation or Compromise?’ (1975) XVIII Historical Journal 851 O Hood Phillips, ‘Parliamentary Privilege: the case of Mr WJ Brown’ (1947) 10(4) MLR 420 House of Commons, Disciplinary and Penal Powers of the House (House of Commons, London, 2003) House of Commons ‘Members/Disqualification/Offices of Profit under the Crown’ (HC/ CL/CH/2/2/22, London, 1956–January 1977) ——, The Chiltern Hundreds (House of Commons, London, 2004) House of Commons Justice Committee, 11th Report (1 July 2009) House of Lords Select Committee on the Constitution, 17th Report (6 July 2009) ——,18th Report (8 July 2009) ——, 22nd Report (2 November 2009) International IDEA, ‘World Pie Chart by Electoral System Type’ (IDEA, June 2005) Lord Jenkins, Report of the Independent Commission on the Voting System (HMSO, London, 1998) I Jennings, The Law and the Constitution, 5th edn (Hodder & Stoughton, London, 1959) G Johns, ‘Clarke versus Australian Labor Party’ (2000) 32(1) Australian Journal of Political Science 137 ——, ‘Desirability of Regulating Political Parties’ (2001) 8(4) Agenda 291 ——,  ‘Political Parties: From Private to Public’ (1999) 37(2) Commonwealth and Comparative Politics 89 Joint Committee on Human Rights, 19th Report (30 June 2009) Joint Committee on Parliamentary Privilege, Parliamentary Privilege First Report (TSO, London, 1999) P Joseph, Constitutional and Administrative Law in New Zealand, 2nd edn (Brookers, Wellington, 2001) D Judge, Representation (Routledge, London, 1999) PM Kamath, ‘Politics of Defection in India in the 1980s’ (1985) 25(10) Asian Survey 1039 RS Katz, ‘The Problem of Candidate Selection and Models of Party Democracy’ (2001) 7(3) Party Politics 277 MF Keeler, ‘The Committee for Privileges of the House of Commons 1604–10 and 1614’ (1994) 13(2) Parliamentary History 147 H Kelsen, General Theory of Law and State (Harvard University Press, Cambridge, Mass, 1949) MA Kishlansky, Parliamentary Selection: Social and Political Choice in Early Modern England (Cambridge University Press, Cambridge, 1986) K Kollman, JH Miller and SE Page, ‘Political Parties and Electoral Landscapes’ 28(1) (1998) British Journal of Political Science 139 RW Krouse, ‘Two Concepts of Representation: James and John Stuart Mill’ (1982) 44 Journal of Politics 509 P Langford (ed), The Writings and Speeches of Edmund Burke, Vol III (Clarendon Press, Oxford, 1996)

164

Bibliography

H Lardy, ‘Democracy by Default: The Representation of the People Act 2000’ (2001) 64 MLR 63 ——, ‘Prisoner Disenfranchisement: Constitutional Rights and Wrongs’ [2002] PL 524 P Laslett (ed), Locke: Two Treatises of Government (Cambridge University Press, Cambridge, 1988) JL Lawless, ‘Politics of Presence? Congresswomen and Symbolic Representation’ (2004) 57(1) Political Research Quarterly 81 A Lester and D Oliver (eds), Constitutional Law and Human Rights (Butterworths, London, 1997) Lord Lester, Hansard HL, 9 July 2001, col 991 ——, Hansard HL, 20 December 2001, col 400 Lord Lester of Herne Hill QC and D Pannick QC (eds), Human Rights Law and Practice, 2nd edn (LexisNexis, London, 2004) Letter from the Speaker, Cmnd 2880 (HMSO, London, 1965) CT Lewis and C Short, A Latin Dictionary (Clarendon Press, Oxford, 1879) AD Lindsay, John Stuart Mill: Utilitarianism: Liberty: Representative Government (JM Dent, London, 1962) S Lindsay, ‘Jurisdiction to Review Expulsion from a Political Party’ (1987) 16 Melbourne University Law Review 326 M Loughlin, The Idea of Public Law (Oxford University Press, Oxford, 2004) DH Lowenstein, ‘Election law as a subject – a subjective account’ (2002) 32 Loyola of Los Angeles Law Review 1199 A Lyon, Constitutional History of the United Kingdom (Cavendish Publishing, London, 2003) J Maddicott, ‘The Earliest Known Knights of the Shire’ (1999) 18 Parliamentary History 109 J Maingot, Parliamentary Privilege in Canada, 2nd edn (House of Commons and McGillQueen’s University Press, Montreal, 1997) FW Maitland, Constitutional History of England (Cambridge University Press, Cambridge, 1908) DJ McCrone and JH Kuklinski, ‘The Delegate Theory of Representation’ (1979) 23(2) American Journal of Political Science 278 CH McIlwain, The High Court of Parliament and its Supremacy (Yale University Press, New Haven, Conn, 1910, rep 2004) W McKay (ed), Erskine May’s Parliamentary Practice, 23rd edn (LexisNexis, London, 2004) M McKisack, Parliamentary Representation of English Boroughs in the Middle Ages (Oxford University Press, Oxford, 1932) B Manin, The Principles of Representative Government (Cambridge University Press, Cambridge, 1997) J Mansbridge, ‘Rethinking Representation’ (2003) 97(4) American Political Science Review 515 AP Martinich, Hobbes Leviathan (Broadview Press, Peterborough, Ont, 2002) Members Estimates Committee, ‘Review of Second Home Claims Begins’ (Press Release No 2, 1 July 2009). Ministry of Justice, The Governance of Britain – Review of Voting Systems: The Experience of New Voting Systems in the United Kingdom since 1997 (TSO, London, 2008) ——, Voting Rights of Convicted Prisoners Detained within the United Kingdom (Consultation Paper CP6/09, Ministry of Justice, London, April 2009) D Monks, Practical Elections Administration (Shaw and Sons Ltd, Crayford, Kent, 2008)

Bibliography 165 R Morris and D Monks, Running Elections 2007 (Solace Enterprises, London, 2007) C Morton (ed), Whitelocke’s Notes Uppon the King’s Writt For Choosing Members of Parliament (London, 1766) vol 1 ‘Motion for MP’s Expulsion’, The Times, 15 December 1954 RC Munden, ‘The Defeat of Sir John Fortescue: Court versus County at the Hustings?’ (1978) 93 English Historical Review 811 JE Neale, Elizabeth I and her Parliaments 1584–1601 (Jonathan Cape, London, 1957 ——, ‘Three Elizabethan Elections’ (1931) 46 English Historical Review 209 ——, ‘More Elizabethan Elections’ (1946) 61 English Historical Review 18 P Norris (ed), Passages to Power (Cambridge University Press, Cambridge, 1997) P Norton, ‘The Qualifying Age for Candidature in British Elections’ [1980] PL 66 NZ Justice and Electoral Select Committee, Report on the Electoral (Integrity) Amendment Bill 2006 (House of Representatives, Wellington, 2006) NZ Labour Party, ‘Confidence and Supply Agreement with New Zealand First’ (Office of the Prime Minister, Wellington, 17 October 2005) C Nicholls QC et al, Corruption and Misuse of Public Office (Oxford University Press, Oxford, 2006) C O’Leary, The Elimination of Corrupt Practices in British Elections 1868–1911 (Clarendon Press, Oxford, 1962) Office of the Prime Minister, ‘PM announces election date’ (Wellington, 11 June 2002) D Oliver, ‘The Frontiers of the State: Public Authorities and Public Functions under the Human Rights Act’ [2000] PL 476 ——, ‘Functions of a Public Nature under the Human Rights Act’ [2004] PL 329 C Orey and RCA White, European Convention on Human Rights, 3rd edn (Oxford University Press, Oxford, 2002) G Orr, ‘The Cinderella Status of Electoral Law as a Field of Study in Australia’ (1998) 7(2) Griffith Law Review 166 ——, ‘Overseeing the Gatekeepers’ (2001) 12 Public Law Review 89 ——, ‘The law comes to the party: the continuing juridification of political parties in Australia’ (2002) 3(3) Constitutional Law and Policy Review 41 G Orr, B Mercurio and G Williams, Realising Democracy (Federation Press, Sydney, 2003) G Palmer, ‘Adam Clayton Powell and John Wilkes: An Analogue from England for the Men in the Marble Palace’ (1971) 56 University of Iowa Law Review 725 ——, New Zealand’s Constitution in Crisis (John McIndoe, Dunedin, 1992) G Palmer and M Palmer, Bridled Power, 4th edn (Oxford University Press, Melbourne, 2004) P Pennings and RY Hazan (eds), ‘Democratizing Candidate Selection’ (2001) 7(3) Party Politics J Perkins and DL Fowlkes, ‘Opinion Representation versus Social Representation; or Why Women Can’t Run as Women and Win’ (1980) 74 American Political Science Review 92 A Phillips, The Politics of Presence (Clarendon Press, Oxford, 1995) JA Phillips, Electoral Behaviour in Unreformed England (Princeton University Press, Princeton, 1982) A Phillips Griffiths, ‘How Can One Person Represent Another?’ (1960) 34 Proceedings of the Aristotelian Society (supp vol) 187 Sir Hayden Phillips, Strengthening Democracy: Fair and Sustainable Funding of Political Parties (TSO, London, 2007) HF Pitkin, The Concept of Representation (University of California Press, Berkeley, 1967)

166

Bibliography

Lord Plant, Hansard HL, 27 March 2001, col 214 G Post, ‘A Roman legal theory of consent, quod omnes tangit in medieval representation’ (1950) Wisconsin Law Review 66 Bridget Prentice MP, Hansard HC, 16 January 2007, col 1108W. ——, Hansard HC, 23 January 2007, col 1628W. R Price (ed), Parker’s Law and Conduct of Elections Issue 22 (LexisNexis, London 2006) R Price, ‘Election Fraud has increased since postal ballot reforms, says watchdog’, The Telegraph, 9 February 2009 W Priest, ‘Judicial corruption in early Modern England’ (1991) 133 Past & Present 67 Privileges Committee, Report on the question of privilege referred on 22 July 1997 relating to the status of Manu Alamein Kopu as a member of Parliament (NZ House of Representatives, Wellington, September 1997) L Radice, E Vallance and V Willis, Member of Parliament, 2nd edn (Macmillan, London, 1990) H Rawlings, Law and the Electoral Process (Sweet & Maxwell, London, 1988) Records of Returns to Parliaments of England (House of Commons, London, 1878) A Reeve and A Ware, Electoral Systems (Routledge, London, 1992) Report from the Committee on Privileges (Allighan Garry, MP) (1946, House of Commons, London) Report of the Select Committee on Offices or Places of Profit under the Crown (House of Commons, London, 1941) Richard Commission, Powers and Electoral Arrangements of the National Assembly for Wales (Commission on the Powers and Electoral Arrangements of the National Assembly for Wales, Cardiff, March 2004) HG Richardson ‘John of Gaunt’ (1938) 22 Bulletin of the John Rylands Library 175 R Ridell et al, Report of the Commission on Candidate Selection (Electoral Reform Society, London, 2003) L Riess, The History of the English Electoral Law in the Middle Ages (trans K Wood-Legh) (Cambridge University Press, Cambridge, 1940) G Robins, ‘The Right of Prisoners to Vote: A Review of Prisoner Disenfranchisement in New Zealand’ (2006) 6(4) New Zealand Journal of Public and International Law 165. M Robinson (ed), Language and the Law (William S Hein & Co, Buffalo, NY, 2003) M Robinton, ‘Parliamentary Privilege and Political Morality in Britain, 1939–1957’ (1958) 73(2) Political Science Quarterly 179 R Rogowski, ‘Representation in Political Theory and in Law’ (1981) 91 Ethics 395 R Rose (ed), International Encyclopedia of Elections (CQ Press, Washington, DC, 2000) F Rosen, Jeremy Bentham and Representative Democracy (Clarendon Press, Oxford, 1983) M Rush, The Role of the Member of Parliament since 1868 (Oxford University Press, Oxford, 2001) M Russell, Women’s Representation in UK Politics: What can be done within the Law? (Constitution Unit, London, 2000) ——, The Women’s Representation Bill: Making it Happen (Constitution Unit, London, 2001) R Salmond, ‘Choosing Candidates: Labour and National in 2002’ in J Boston et al, New Zealand Votes (Victoria University Press, Wellington, 2003) P Schaff and H Wace (eds), Nicene and Post-Nicene Fathers: Leo the Great; Gregory the Great (Hendrickson, Peabody, Mass, 1995)

Bibliography 167 JA Schlesinger, ‘Conceptual Approaches to Political Parties’ (1986) 19(4) American Political Science Association 860 CJ Schneider, ‘Political Parties and the German Basic Law of 1949’ (1957) 10 Western Political Quarterly 527 D Sewell, Catholics (Penguin, London, 2002) P Seyd, ‘In Praise of Party’ (1998) 51(2) Parliamentary Affairs 198 RL Sharwood, ‘Banardiston v Soame: a Restoration Drama’ (1964) 4 Melbourne University Law Review 502 C Short, ‘Women and the Labour Party’ (1996) 49(1) Parliamentary Affairs 17 J Simpson (ed), Oxford English Dictionary, 2nd edn (Oxford University Press, Oxford, 1989) Q Skinner, ‘Hobbes on Representation’ (2003) 13(2) European Journal of Philosophy 155 EA Smith, ‘Bribery and Disenfranchisement: Wallingford Elections, 1820–1832’ (1960) 75 English Historical Review 618 SA de Smith, ‘House of Commons Disqualifications Act, 1957’ (1957) 20(5) MLR 492 D Spafford, ‘Mill’s Majority Principle’ (1985) 28(3) Canadian Journal of Political Science 600 Special Report from the Select Committee on the House of Commons Disqualifications Bill (House of Commons, London, 26 July 1956) Speaker’s Conference (on Parliamentary Representation), Interim Report (House of Commons, London, July 2009) Speaker’s Conference (on Parliamentary Representation), Final Report (House of Commons, London, Janaury 2010) M Stenton and S Lees, Who’s Who of British Members of Parliament, Vol II 1919–1945 (Harvester Press, Brighton, 1979) J Stewart, ‘A Banana Republic? The Investigation into Electoral Fraud by the Birmingham Election Court’ (2006) 59(4) Parliamentary Affairs 654 Jack Straw, The Governance of Britain (Cm 7170, July 2007) J Squires, ‘Quotas for Women: Fair Representation’ (1996) 49(1) Parliamentary Affairs 71 MM Taylor, ‘Parliamentary Elections’ (1940) 18 Bulletin of the Institute of Historical Research 21 A Tomkins, Our Republican Constitution (Hart Publishing, Oxford, 2005) W Ullman, Principles of Government and Politics in the Middle Ages (Methuen & Co, London, 1961) N Urbinati, ‘Representation as Advocacy’ (2000) 28(6) Political Theory 758 J Valliant, Dyer’s English King’s Bench Reports (1688) (London, Butterworth, 1794) Venice Commission, Report on the Imperative Mandate and Similar Practices (Venice, June 2009) JC Wahlke, ‘Policy Demands and System Support: The Role of the Represented’ (1971) 1 British Journal of Political Science 271 A Walker and E Wood, The Parliamentary Oath (House of Commons Library Research Paper, London, 14 February 2000) J Warburton, Unincorporated Associations: Law and Practice, 2nd edn (Sweet & Maxwell, London, 1992) N Ward, ‘The Basis of Representation in the House of Commons’ (1949) 15(4) Canadian Journal of Economics and Political Science 477 B Watt, UK Election Law: a critical examination (Glasshouse Press, London, 2006) MP Wattenberg, ‘Do Voters Really Care About Political Parties Anymore?’ (1987) 9(2) Political Behavior 114

168

Bibliography

A Weale, ‘Representation, Individualism, and Collectivism’ (1981) 91 Ethics 457 JC Wedgewood, History of Parliament 1439–1509 Register (HMSO, London, 1938) S Whetnall, ‘Three Counts and a Wedding: the Winchester Election Saga’ (1998) Arena 14 S Wilks-Heeg, ‘Purity of Elections in the UK’ (Joseph Rowntree Reform Trust, York, 2008) S Winchester, The Meaning of Everything (Oxford University Press, Oxford, 2003) C Wittke, The History of English Parliamentary Privilege (Da Capo Press, New York, 1970) K Wood-Legh, ‘Sheriffs, Lawyers and Belted Knights in the Parliaments of Edward III’ (1931) 46 Eng Historical Review 372 JF Zimmerman, The Recall: Tribunal of the People (Praeger, Westport, 1997)

INDEX accountability    candidate eligibility laws 41, 56    political parties 23–4, 108, 121    recall elections 145    representation theory 13–17, 23–6, 41, 56, 151–2 administrative errors 70, 72–3, 75–6, 88, 91–2, 99 age 43, 46, 47–9, 53, 56, 67, 153 Allighan, Garry 135, 150 all-women shortlists 20, 101–2, 105, 114, 152 anticipatory representation 14 appeals 84, 89–92 ascending theory of representation 11, 29, 151 Australia   candidate eligibility laws 53, 58, 60    candidate selection in courts, challenging 6, 102, 109–10, 115–22, 125   citizenship 60    club law model 117–19    composition privilege 132–3    employment model of challenge 115–16    foreign power, loyalty to a 53    petitions, costs of 98    political parties 108–10, 117–21, 122, 125    public interest petitioner, proposal for 156    public/private law 6, 117–20    public servants 60    regulation 120–1, 122, 125 authorisation theory of representation 12–14 Baker, Peter 135 bankrupts 45, 51 Benn, Tony 42, 150 Bentham, Jeremy 18, 31 Beudyn, Robert 69, 100 bias 113 Bill of Rights 1689 133, 139, 140–3 Birch, Anthony 10–12, 25 Blackburn, Robert 4, 46 Blackstone, William 29–32 Bradlaugh, James 133–4 branches of legislature, dual membership of 37, 51, 59, 67 bribery 77, 81, 83 British Columbia, recall elections in 146–7 broadcasting 121, 124–5, 152 Burke, Edmund 15–16, 18–19, 22, 25, 151 California, recall elections in 146–7 Canada 58, 60, 146–7

candidate eligibility laws 41–67    pre-1700s era 52–3    1700 and after 53–4    accountability 41, 56    age 43, 46, 47–9, 53, 56, 67, 153    Australia 53, 58, 60    bankrupts 45, 51    basis of eligibility 47–51, 56–60    branches of legislature, dual membership of 51, 59, 67    Canada 58, 60    characteristics and quality of representatives 41, 47–53    citizenship 43, 56, 58–9, 67, 155    clergy 46–7, 49, 54, 55, 67    common informer rule, abolition of 55    Commonwealth 43, 51, 56, 58–60, 67    conflicts of interest 41, 46, 50–1, 54–5, 59, 155    consolidation of electoral law 155–6    criminal convictions 42, 44–5, 56–7    Crown, separation of Parliament from the 52–4    definition of candidate 42–3    delegate theory of representation 41   deposits 60    disabled persons 43–4, 155    discrimination 4, 127–8    disqualification 41, 43–8, 53–61, 152–3, 155    Electoral Commission, role of 155–6    European Convention on Human Rights 4, 48–9, 57, 59, 67, 127–8    foreign legislatures, members of 46, 51, 53, 58–9, 67, 155    foreign power, loyalty to a 53, 58–9    history of eligibility laws 52–6    House of Commons 43–7, 50–6, 152–3    House of Lords 46, 51, 54, 59    Human Rights Act 1998 49    illegal election practices, persons convicted of 44–5, 56    image of representative bodies 48    inheritance of seats 153    Irish citizens 46, 51, 56, 58–9, 67    judicial independence 51, 54   language 127    legal focus of candidacy 41–3    local disqualifications 45    localised elections 56    medieval writs 52    mental capacity 43–4, 50, 58, 155    moment of eligibility 60–7    multi-constituency candidates 44, 46, 51

170

Index

candidate eligibility laws (cont.):    nationality 43, 46, 51, 53, 127, 155    New Zealand 53, 58–60, 155    nomination 5, 41, 43, 60–7, 155, 156    norms, exclusion of candidates with incompatible 48, 50, 51    Northern Ireland 56    occupational restrictions 29, 58    officeholders, position of 53–5    parliamentary privilege 52    peers 42, 45, 46, 67    personal and systemic integrity 51   petitions 88    political parties 60, 62–3    political theories of representation 41    prisoners 42, 44–5, 56–8    public servants 46, 58–60, 67, 155    reform 41, 46–7, 56–60, 67, 153–7    refugee communities 58    refusal of nomination 61–7   Register of Members’ Interests 50–1    registration to vote 56–7    religion 46–7, 49, 53–4, 55, 67, 153    remote representation 50    representation theory 40–1, 50, 56    residency requirements 56–8, 67, 155    reverse disqualification 55    Roman Catholics 47, 53    Second World War reforms 54–6    separation of powers 42, 51, 52–4, 58–9, 152–3    spoiler candidates/shams 63–6    territorial representation 56   treason 44–5    trustee theory of representation 41   under-representation 128    voting rights and right to stand as a candidate 48, 56–8    who may be a candidate 41–7 candidate selection in courts, challenging 101–29    all-women shortlists 101–2, 105    Australia 6, 102, 109–10, 115–22, 125    club law model of challenge 109–13, 116–21, 123–5, 128, 151–2    contract law 6, 109, 118, 120    employment law model of challenge 6, 114–17, 125–6, 128, 151    European Convention on Human Rights 125, 127–8, 129    freedom of association 128    gender 101–2, 105    identity representation 103, 105, 115    importance of selection 102–5    models of challenge 5–6, 102, 109–20    natural justice 109–13, 125, 129    New Zealand 110    Northern Ireland 111–13

  petitions 156–7    political parties 6, 101–13, 117–29, 156    professionalisation of politics 103, 128    public /private law 102–3, 117–29, 156    quasi-public law model of challenge 6, 117–28    race discrimination 114–16   reform 153–7    sex discrimination 101–2, 105, 114–16    shortlists101–2, 105, 114    Speaker’s Conference 156    United Kingdom 101–2, 120–8 candidates see candidate eligibility laws; candidate selection in courts, challenging candidature, right of 4, 34–9, 48, 57–9, 67, 99, 152–3 capacity 43–4, 50, 58, 155 characteristics of representatives 29–30, 36, 39–41, 47–53, 151 see also integrity of candidates citizenship 36, 38, 43, 56, 58–9, 67, 155 clergy 46–7, 49, 54, 55, 67 club law model 106–13, 116–21, 123–5, 128, 151–2 codes of conduct 137, 144 Coke, Edward 29–30, 32, 56 collective or corporatist representation 19, 23, 26 Commissioner for Parliamentary Investigations 138, 141–3 commissions of inquiry 156 Committee for Privileges and Returns 80–2 Committee of Privileges and Elections 69–70 Committee on Standards and Privileges 136–7, 142 common informer rule, abolition of 55 common law jurists 29–31, 40 Commonwealth 43, 51, 56, 58–60, 67, 146 see also individual countries composition privilege 2, 77–82, 85, 132–4, 144, 149 conduct of members 134–7, 144–9 conflicts of interest 37–41, 46, 50–1, 54–5, 59, 113, 132, 155 constitutional law 2, 152–3 contract 6, 17, 57, 107–10, 118, 120, 123, 125 controverted elections 68–100 see also petitions    access to justice 4, 97–9, 157    administrative errors 70, 72–3, 75–6, 88, 91–2, 99    Chancery, court of 74    Committee of Privileges and Elections (House of Commons) 69–70    composition privilege 77–80    concurrent jurisdictions 73–6    corruption 5, 70–2, 82–9, 94–6, 99–100, 155–6    county court elections 71–2, 99    courts 1, 5, 71–85, 88–92, 94, 99    early elections, challenging 71–6

Index 171    election committees 80–3    Election Court 88–92, 94, 95    Electoral Commission 69, 93–7, 100    exclusive jurisdiction of House of Commons 80–2    expenses fraud 92   finances 95–7   fines 72–5   forgery 86    fraud 86–7, 92–3, 95, 98   Grenville Act 81–3    historical development 5, 60, 69–70, 75–6, 80–6, 99    House of Commons 60, 69–70, 75–6, 80–5    ignoring disqualification 60    illegal election activity 68, 86–9, 91, 93–100, 155–6    investigatory role of Electoral Commission 94–7    judicial review 90–1    legal aid 98–9, 100    modern period 5, 86–99    multiple and concurrent jurisdictions 73–6    parliament for control over elections, struggle with 1, 5, 76–85, 99    political parties, rights of 97    Privy Council 60, 73    prosecutorial powers 96–7    public interest petitioner, proposal for 92–4, 100, 156    public or private petitions 92    reform 5–6, 69, 80, 85–6, 91–9   remedies 89–90   sheriffs 71–5   standing 91–2    Star Chamber 74–5    Victorian reforms 5, 82–6, 99    violence 71–2, 81 corruption    commissions of inquiry 156   controverted elections 5, 70–2, 82–9, 94–6, 99–100, 155–6    courts and Parliament, relationship between 81, 83–5    Electoral Commission 94–6, 155–6    House of Commons 81–5   penalties 84    petitions 84, 86–9, 94–6, 99, 151, 155–7    representation theory 31 county court elections 71–2, 99 courts see also candidate selection in courts, challenging; judiciary    Chancery, court of 74    composition privilege 77–80, 85    controverted elections 1, 5, 71–85, 88–92, 94, 99   corruption 81–5    county court elections 71–2, 99

   election committees 80–3    Election Court 88–92, 94, 95    exclusive jurisdiction 80–2    expenses scandal 140–4   expulsion 133–4   Grenville Act 81–3    multiple and concurrent jurisdictions 73–6    ouster clauses 142, 148    parliament and courts, relationship between 1, 5, 76–86, 99, 140–4    Parliamentary Elections Act 1868 85    Parliamentary Elections Court, proposal for 84–5   petitions 83–5    recall elections 148    representation theory 26–7, 31–4    transfer of jurisdiction 85 criminal offences see also corruption; illegal election practices   bribery 77, 81, 83    candidate eligibility laws, convictions and 42, 44–5, 56–7    custodial sentences 147    expenses scandal 139–40   fraud 86–7, 92–3, 95, 98    medieval writs 30    obscene, racist or incitement to crime, descriptions which are 66    recall elections 147    representation theory 30   treason 44–5   treating 81 de Cranthorn, Matthew 69–70, 73, 100, 150 definition of candidate 42–3 definition of electoral law 2 delegate theory of representation 5, 14–18, 24–34   accountability 17–18    candidate eligibility laws 41   contract 17    European Convention on Human Rights 38    identity representation 25    interests 15–17, 33, 38    political parties 24    relationship between represented and representatives 17    recall elections 145    religious orders 8–9    trustee theory 15–18, 134, 151 democracy 1, 7, 11, 17, 34, 37–8, 144–5 deposits 37, 60–1 descending theory of representation 11–12, 29, 151 Dicey, Albert Venn 29, 31 direct democracy 38 Director of Public Prosecutions (DPP) 95

172

Index

disabled persons   candidate eligibility laws 43–4, 155    mental capacity 43–4, 50, 58, 155 discipline 23–4, 105, 113, 117, 134, 138–44 discrimination   candidate eligibility laws 4, 127–8    Equality Act 2010 105, 121    European Convention on Human Rights 4, 127–8    gender 20, 101–2, 105, 114–16, 127–8, 152    identity representation 127–8    positive discrimination 121   race 114–16    women shortlists 20, 101–2, 105, 114, 152 disputed elections see controverted elections disqualification 2–6, 130–2    candidate eligibility laws 41, 43–8, 53–61, 152–3, 155    code of conduct 137, 144    Committee on Standards and Privileges 136–7    common law grounds 130–2    composition privilege 2, 132–4    conduct of members 132–7    conflicts of interest 132    controverted elections 60    courts and Parliament, relationship between 140–1, 143–4    criminal offences 139–40    expenses scandal 136, 137–44   grounds 130–2    House of Commons 130–2    ignoring disqualification 60, 131    list of disqualified persons 45    local disqualification 45    Nolan Committee 136–7, 138, 140    Parliamentary Commissioner for Standards 137    parliamentary privilege 132–44   petitions 132    Privy Council, Judicial Committee of the 130–2   Register of Members’ Interests 137    removal from Parliament 2, 5, 6, 130–2, 137–44, 149    reverse disqualification 55    sanctions 137, 138–40    Speaker’s Conference 21, 154    statutory provisions 2, 6, 43–7, 54–6, 59–61, 130–6, 147, 152    unworthiness for office, definition of 136 diversity 20–1, 48–9 divine right of kings 9, 11 early elections, challenging 71–6 election committees 80–3, 89 Election Court 88–92, 94, 95 election petitions see petitions Electoral Commission 69, 93–7, 100, 155–6

electoral law   consolidation/systemisation 155   definition 2    historical background 3   nature 3–5    public/private law 3, 151–3   purpose 1–2    reform and reconceptualisation 6, 150–7    representation theory 150–3 eligibility see candidate eligibility laws elites 17–19, 25 entry, powers of 95 errors 70, 72–3, 75–6, 88, 91–2, 99 European Convention on Human Rights   candidate eligibility laws 4, 48–9, 57, 59, 67, 127–8    candidate selection in courts, challenging 125, 127–8, 129    case law on representation 36–9    citizenship 36, 38    conflicts of interest 37, 38–9, 40    delegate theory 38    direct democracy, representation as substitute for 38    discrimination 4, 127–8    election, right to stand for 4, 34–9, 48, 57–9, 67, 99, 152–3    ethical and trustworthy persons, representatives as 36, 39    fair hearing, right to a 139    freedom of association 4, 49, 128    freedom of expression 34, 38, 48   Human Rights Act 1998 4    identity representation 38–9   interests 38    Irish legislators’ candidacy 59    language 36, 38    legal aid 99    limitations on representation 35–9    non-elected chambers 35    petitions 4, 157    prisoners’ right to vote 57    proportional representation 35, 38    proportionality 57, 128    public/private law 125, 127    representation theory 4, 34–40, 152–3    residency requirements 36, 38    serious participants 37    status must not undermine constitutional system 37    vote, right to 48, 57 evidence from parliamentary proceedings 141 Ewing, Keith 105–6 expenses scandal 13–14, 136, 137–44, 149    Bill of Rights 139, 140–3    disqualification 136, 137–44   fraud 92    parliamentary privilege 137–44, 149

Index 173    public trust 21    representation theory 32 expulsion from Parliament 117, 133–44 fair hearing, right to a 139 false statements 68 finances 95–7, 108, 121–5, 152 fines 72–5 foreign legislatures, members of 46, 51, 53, 58–9, 67, 155 foreign power, loyalty to a 53, 58–9 forgery 86 fraud 86–7, 92–3, 95, 98 freedom of association 4, 49, 128, 153 freedom of expression 34, 38, 48, 141, 153 gender 20, 101–2, 105, 114–16, 127–8, 152 General Committee of Elections 83 Germany 108 Grenville Act 81–3 Hobbes, Thomas 12–13, 25–6 homeless, voter registration and 57 House of Commons   candidate eligibility laws 43–7, 50–6, 152–3    candidate selection in courts, challenging 101–2, 105    Committee of Privileges and Elections 69–70    Committee for Privileges and Returns 80–2    Committee on Standards and Privileges 136–7, 142   composition privilege 80–2    controverted elections 60, 69–70, 75–6, 80–5   corruption 81–5    courts and Parliament, relationship between 76–85   disqualification 130–2   election committees 80–3, 89    exclusive jurisdiction 80–2   Grenville Act 81–3    House of Lords 59, 78–80, 83    Nolan Committee 136–8, 140    Parliamentary Commission for Standards 137    Parliamentary Standards Bill 140–1   petitions 82–3    recall elections 147–8   Register of Members’ Interests 50–1, 137   resolutions 147–8    Speaker’s Conference 20–1, 33, 154–6    treating, bribery and intimidation 81    women shortlists 101–2, 105 House of Lords   candidate eligibility laws 46, 51, 54, 59    courts and Parliament, relationship between 78–80, 83    expenses scandal 140, 141–2    House of Commons 59, 78–80, 83   judges 54

   parliamentary privilege 140, 141–2    Parliamentary Standards Bill 141–2    reforms to 46 human rights law see also European Convention on Human Rights    Human Rights Act 1998 4, 49    representation theory 4, 34–9, 40    Speaker’s Conference 154–5    Universal Declaration of Human Rights 34 identity representation 18–22, 26, 151–2    candidate selection in courts, challenging 103, 105, 115   diversity 20–1    elites, interests of 19    employment model of challenge 115    European Convention on Human Rights 38–9   identity of interests with community 18–20   interests 18–20   legitimacy 21    national interest 19    recognition, politics of 21    sex discrimination 127–8    shortlists 20, 152    social categories 20    Speaker’s Conference 20–1, 154    trustee theory of representation 25    virtual representation 22 illegal election practices   controverted elections 68, 86–9, 91, 93–100, 155–6    eligibility for candidacy of convicted persons 44–5, 56    petitions 68, 86–9, 91, 93–9 image and branding 23, 48 Independent Parliamentary Standards Authority (IPSA) 138–9, 142–3, 147 individualistic notion of representation 19–20, 22–3, 26, 151 inheritance of seats 153 inquisitorial process 89 integrity of candidates 13, 29–30, 50–1, 93, 137 intimidation 81 Ireland 46–7, 51, 56, 58–9, 67 Jepson, Patrick 101–2, 105, 109, 114–15, 150 Joseph Rowntree Trust 86–7, 98–9 judicial review 68, 90–1, 123 judiciary 51, 54, 61, 85 see also candidate selection in courts, challenging; courts language 23, 36, 38, 127 leaders 23 legal aid 36, 98–9, 100, 157 Legg Committee 137 legitimacy of state power 1–2 Locke, John 13, 15–16, 32 Loughlin, Martin 3, 153

174

Index

mandate, doctrine of 24, 32–3 mandate theory of representation see delegate theory of representation Marx, Karl 145 mass participation 17–18 media 23 medieval writs 27–9, 30, 39–40, 52 mental capacity 43–4, 50, 58, 155 Mill, James 18–19 Mill, John Stuart 19–20, 31 monitoring 69, 93–7 MPs’ expenses scandal see expenses scandal multi-constituency candidates 44, 46, 51 names 62–3, 65–7 national interest 13, 15, 17, 19 nationality 43, 46, 51, 53, 127, 155 natural justice 109–13, 125, 129 New Zealand   candidate eligibility laws 53, 58–60, 155    candidate selection in courts, challenging 110   citizenship 58   common law 4    First-Past-the-Post system 4–5    foreign legislatures, members of 58    foreign power, loyalty to a 53    petitions, costs of 98    political parties 107, 110    proportional representation 5    public/private law 124, 125, 127    public servants 59–60, 155 Nolan Committee 136–8, 140 nomination of candidates 60–7    candidate eligibility laws 5, 41, 43, 60–7    common law power of refusal 63–7, 156   deposits 60–1    judicial review 61    names 62–3, 65–6    obscene, racist or incitement to crime, descriptions which are 66    papers 60, 62–3, 88    political parties 60, 63–6   prisoners 61–2    reform 155, 156    refusal of nomination 61–3, 156    returning officers 61–7, 156    spoiler candidates/shams 63–6    statutory refusal 61–3 Northern Ireland 56, 111–13 oaths 133–4 obscene, racist or incitement to crime, candidate descriptions which are 66 occupational restrictions on candidates 29, 58 office-holders 53–5 ouster clauses 142, 148 outlaws 78

Parliament and courts, relationship between 1, 5, 76–86, 99, 140–4 Parliamentary Commissioner for Standards 137 Parliamentary Elections Act 1868 85 Parliamentary Elections Court, proposal for 84–5 parliamentary privilege    Australia 4    candidate eligibility laws 52   disqualification 132–44    expenses scandal 133–44, 149    expulsion from Parliament 133–44    freedom of expression 141    historical background 4    House of Lords 140, 141–2    New Zealand 4    Parliamentary Standards Act 2009 143–4    Parliamentary Standards Bill 138–42, 149    removal from Parliament 6, 132–44, 149    representation theory 33    unworthiness, definition of 134–7 Parliamentary Standards Act 2009 142–4, 148–9    Commissioner for Parliamentary Investigations 138, 141–3    evidence from parliamentary proceedings 141    fair hearing, right to a 139    freedom of speech, chilling effect on 141    House of Lords 140, 141–2    Independent Parliamentary Standards Authority 138–9, 142–3    Legg Committee 137    Parliamentary Standards Act 2009 142–4, 149    Parliamentary Standards Bill 138–42, 149    removal from Parliament 6, 137–44, 149 parties see political parties peers and candidate eligibility laws 42, 45, 46, 67 petitions   access to justice 4, 97–9, 157    administrative errors 88, 91–2   appeals 89–92   bribery 83    certification 89, 91, 95    candidate selection in courts, challenging 111–13    controverted elections 1, 5–6, 60, 68, 83, 86–100, 151,155–7    corruption 84, 86–9, 94–6, 99, 151, 155–7    cost of petitions 83, 97–9, 100, 157    courts and Parliament, relationship between 83–5    Director of Public Prosecutions 88, 89, 91, 95   disqualification 132    Election Court 88–91, 94    Electoral Commission 94–7, 155–7    eligibility disputes 88

Index 175    European Convention on Human Rights 4, 157    false statements 68    frivolous and vexatious petitions 83    Grenville Committees 83   grounds 87–8    House of Commons 82–3    illegal election practices 68, 86–9, 91, 93–9    investigatory role of Electoral Commission 94–7    judicial review 68, 90–1    legal aid 98–9, 100, 157   monitoring 93–7    nomination papers, acceptance of 88    parties to petitions 88    political parties 88, 92, 97, 157    Privy Council 73    public interest petitioner, proposal for 92–4, 100, 156    public/private law 6, 92    recall elections 146–7   recounts 88    reform 5–6, 82–3, 91–9   remedies 89–90    returning officers 88, 93, 97, 99, 148, 157    security for costs 98, 157   sovereign 73    standing 91–2, 97   statistics 86–7    Victorian reforms 82–3, 91 Pitkin, Hanna 10–11, 24 police 93 political parties 101–13    accountability 23–4, 108, 121    Australia 108, 109–10, 117–22, 125   bias 113    broadcasting 121, 124–5    candidate eligibility laws 60    candidate selection in courts, challenging 6, 101–13, 117–29, 156   club law model 106–13, 117–18, 121, 123    collective or corporatist representation 23    conflicts of interest 113    confusion with existing parties 63–6    contract 107, 109–10, 121, 122, 123, 125, 127    controverted elections 97    decisions in choosing candidates, judicial deference to parties’ 126–7    definition 108, 119   discipline 23–4   diversity 20    employment model 125–6   expulsion 117    finances 108, 121–2, 152    freedom of expression 153   Germany 108    historical background 23    image and branding 23

  language 23   leaders 23    legal status 105–9   loyalties 23–4    mandate, doctrine of 24   media 23    natural justice 109–13, 125    New Zealand 107, 110   nomination 60    Northern Ireland 111–13    officers, registration of 121    petitions 88, 92, 97, 157    Political Parties, Elections and Referendums Act 2000 121, 123    positive discrimination 121    proprietary interests 118    public/private law 6, 117–29, 156    public servants 59    quasi-public model of challenging selection 117–28    registration 121–2, 152    regulation 119–23, 125   religion 23    representative function 22–4, 25, 32, 108, 151    rules and constitutions 122, 126    socio-economic divisions, loyalties and 23    Speaker’s Conference 154    status of parties 121    statutory incorporation in United Kingdom 120–2      statutory recognition 119–20    trade union representatives 31–2    trustee theory of representation 24    United Kingdom 6, 120–8    voluntary associations 106–7, 110 positive discrimination 121 prisoners 42, 44–5, 56–8, 61–2 private law see public/private law privilege see composition privilege; parliamentary privilege Privy Council, Judicial Committee of the 60, 73, 77, 130–2 professionalisation of representation 103, 128 promissory representation 31, 35, 38 proportional representation 4–5, 35, 38 proportionality 35, 57, 128 prosecutorial powers 95–7 public interest petitioner, proposal for 92–4, 100, 156 public/private law   Australia 6, 117–20   broadcasting 124–5    candidate selection in courts, challenging 6, 103, 117–29, 156    club law model 124–5    contract 123, 125    Electoral Commission 155    electoral law 3, 151–3

176

Index

public/private law (cont.):    employment model 125–6    European Convention on Human Rights 125, 127   finances 124–5    judicial review 123    New Zealand 124, 125, 127      petitions 6, 92    political parties 6, 117–18, 120–9, 156    public function, definition of 124    quasi-public law model of challenging candidate selection 6, 117–28    representation theory 151–3    statutory incorporation in United Kingdom 120–2   transparency 124–5    United Kingdom 6, 120–8 public servants 46, 58–60, 67, 155 quality of representatives 29–30, 36, 39–41, 47–53, 151 see also integrity of candidates quasi-public law model of challenging candidate selection 6, 117–28 quod omnes tangit principle 11–12, 28 race discrimination 114–16 recall elections 6, 144–9 recognition, politics of 21 recounts 88 re-election 14 reform   candidate eligibility laws 41, 46–7, 56–60, 67, 153–7    consolidation/systemisation of electoral law 155    controverted elections 5–6, 69, 80, 85–6, 91–9    electoral law 6, 150–7    eligibility law, consolidation of 155–6    historical background 54–6    House of Lords 46    litigation on candidate selection 156–7    membership law 153–7   nominations 156    parliamentary representation through law, nature of achieving 150–3    petitions 5–6, 82–3, 91–9    representation theory 3, 31    Speaker’s Conference 20–1, 33, 154–6 Register of Members’ Interests 50–1, 137 registration 56–7, 121–2, 152 regulation 2, 27, 42, 119–22, 125 religion   candidate eligibility laws 46–7, 49, 53–4, 55, 67, 153    clergy 46–7, 49, 54, 55, 67    political parties 23    representative theory 23

   Roman Catholics 47, 53 remote representation 50 removal from parliament 130–49 see also disqualification    alternative ways of addressing unworthy conduct 144–9,    composition privilege 144    expenses scandal 6, 137–44, 149    expulsion from parliament, privilege of 133–44    parliamentary privilege 6, 132–44, 149    Parliamentary Standards Act 2009 143–4, 148    Parliamentary Standards Bill 138–42, 149    recall elections 6, 144–9    traditional means of removing representatives 130–44    unworthy conduct 134–7, 144–9 representation theory and the law 7–40    accountability theory 13–17, 23–6, 41, 56, 151–2    anticipatory representation 14    ascending theory 11, 29, 151    authorisation theory 12–14    case law 36–9    characteristics and qualities of representatives 29, 30, 36, 39–40, 151    citizenship 36, 38    collectivism 19, 23, 26    common law jurists 29–31, 40    compliance with instructions of constituents 15–17, 30–1    conflicts of jurisdiction 37, 38–9, 40   consent 11   corruption 31    courts, views of 26–7, 31–4    criminal past, persons with a 30    definitions 8–11, 24–5    delegate theory 5, 8–9, 14–18, 24–34, 38–9, 134, 151    democracy 1, 7, 11, 17, 34, 37–8, 144–5    descending theory 11–12, 29, 151    direct democracy, as substitute for 38    divine right of kings 9, 11    electoral law 150–3    eligibility 40–1, 50, 56    elite competence 17–18    employment model of challenging selection 126    European Convention on Human Rights 4, 34–40, 152–3    evaluation of representatives 14   expenses 32    freedom of expression 38, 153    full-line supply conundrum 13–14    functions of representation 38    historical background 11–12, 23, 27–31    human rights law 4, 34–9, 40

Index 177    identity representation 18–22, 26, 38–9, 115, 151–2, 154   independence 32–3    individualistic notion of representation 19–20, 22–3, 26, 151    interests 11, 15–18, 25, 31, 33, 38–9    jurisprudence of representation 26–39    language 23, 36, 38   lawyers 30    mandates 24, 32–3    mass participation 17–18    medieval writs 27–9, 30, 39–40    members of parliament, role of 33–4    monarchs 9, 11–13    national interests 13, 15, 17    parliamentary privilege 33    parliaments, views of 31–4    party representation 22–4, 25, 32, 151    political theories 5, 10–26, 39–41, 108   power 12–13    private matter, representation as a 151–2    promissory accountability 13, 17    proportional representation 31, 35, 38    public policy 32    public/private law 151–3   quod omnes tangit principle 11–12, 28    reform 3, 31, 150–3    relationship between represented and representatives 12–15, 17, 25–6, 39    remote representation 50    residency requirement 28, 36, 38    serious participants 37    status of representatives must not undermine constitutional system 37    territorial representation 15–16, 18, 27–30, 56, 128    trade union representatives 31–2    trustees, representatives as 5, 15–18, 24–9, 33–4, 39, 41, 134, 151    virtual representation 16, 25 residency requirements 28, 36, 38, 56–8, 67, 155 returning officers 45, 61–7, 88, 93, 97, 99, 148, 156–7 Roman Catholics 47, 53 Roman law 8–9, 145 rules and constitutions 122, 126

selection of candidates see candidate eligibility laws; candidate    selection in courts, challenging separation of powers 42, 51, 52–4, 58–9, 152–3 serious participants 37, 63–6 sex discrimination 20, 101–2, 105, 114–16, 127–8, 152 shortlists 20, 101–2, 105, 114, 152 social contract 12, 57 socio-economic divisions, loyalties and 23 sovereign 9, 11–13, 73 Speaker’s Conference 20–1, 33, 154–6 spoiler candidates/shams 63–6 Star Chamber 74–5 Stonehouse, John 136

sectional interests 17 security for costs 98, 157 Select Committee on Offices or Places of Profit 54–5

Watt, Bob 63–4 Whigs 15, 19, 30–3, 40 women’s shortlists 20, 101–2, 105, 114, 152

territorial representation 15–16, 18, 27–30, 56, 128 Thatcher, Margaret 63–6 trade union representatives 31–2 treason 44–5 treating 81 trustee theory of representation 5, 15–18, 24–9, 33–4, 39, 41, 134, 151 under-representation 128 United Kingdom    Australia 4–5    candidate selection in courts, challenging 101–2, 120–8    conflicts of interest 37    functions of representatives 38    Ireland 46–7, 56, 58–9, 67    New Zealand 4–5    political parties 120–8    public/private law 6, 120–8    statutory incorporation 120–2 Universal Declaration of Human Rights 34 unworthy conduct 134–7, 144–9 utilitarianism 18–19 violence 71–2, 81 virtual representation 16, 22, 25 voluntary associations, political parties as 106–7, 110 voting 48, 56–8