tim's experiment

As I said last week, there was once a polite convention that people did not discuss matters which were currently or imminently before the courts. However it seems that this has now wilted, if not died completely. Everyone from the Chief Executive down has expressed a view on whether it is lawful for a Returning Officer to disqualify a candidate on the grounds that he would if elected not be able to take the oath required of legislators, or if he took it would not mean it. Well returning officers have been around for a long time. I must admit also to having some dim memories from my student days of historical controversies concerning the taking of the parliamentary oath. So I have had a pleasant nostalgic visit to an old friend of student days, Costin and Watson’s “The Law and Working of the Constitution: Documents 1660-1914” as well as that indispensable aid to modern scholarship – Google.

The earliest relevant case I can find in any detail at all concerns one John Archdale, who was elected to the House of Commons in 1689. He was a Quaker, and consequently had a strong religious objection to oaths of any kind. He asked if he could affirm instead and the House of Commons, after debating the matter, refused. They ordered a new poll. Mr Archdale did not run again, but the law was changed soon afterwards to allow Protestants who had theological objections to oaths to affirm instead. The interesting thing about this from our point of view is that in 1689 Quakers followed a dress code as distinctive as that observed today by people like the Pennsylvania Dutch or ultra-Orthodox Jews. The returning officer must have been perfectly aware of Mr Archdale’s religion and its consequences. He was allowed to run anyway.

It seems – there is very little on this – that a member of the house called Woolaston was expelled in 1699  because he was a tax collector. He ran in the ensuing by-election and was re-elected by his constituents.

More interestingly in 1712 Robert Walpole was convicted of corruption in the matter of government contracts and expelled from the House of Commons. He ran in the ensuing election, won, and was again expelled. This time the Commons declared him ineligible to be a Member but he ran anyway, and lost. Once again it seems that the returning officer was not influenced by the certainty that a candidate would not, if elected, be able to take his seat. The setback did Walpole no harm – he went on to become a long-serving Prime Minister.

These are just the appetizers. We now come to the two main courses. The first concerned John Wilkes, a vociferous controversialist and journalist, who wrote a rude piece about the King’s Speech (which even in those days was written by the Prime Minister, but the King took the attack personally) and was convicted of seditious libel. Nevertheless he ran for the Middlesex constituency in 1768 and was elected. The following year the House of Commons voted to expel him on the grounds that he was a criminal currently serving his sentence, and ordered a new election. This was held the same month and Wilkes was elected again. He was again expelled, and again elected. The House then decided that he “was and is incapable of being elected a Member to serve in this present Parliament.”

There then ensued a major constitutional row. Lawyers conceded that the House had the right to expel members but maintained that it did not have the right to, in effect, order the electors to vote for someone else. The House of Lords was presented with a memorial signed by 42 peers stating that “we deem the power which the House of Commons have assumed to themselves, of creating an incapacity unknown to the law, and thereby depriving, in effect, all the electors of Great Britain of their valuable right of free election … a flagrant usurpation.” Their Lordships, in the end, decided to duck a confrontation with the Commons over the issue. But the 42 peers’ view triumphed in the end because in 1782 the House of Commons came round to the same opinion, and ordered that the records of the case be expunged from the records as “subversive of the rights of the whole body of electors”. The interesting thing about this conclusion is that it does not allow even the House of Commons, never mind the returning officer, to disqualify a candidate. His suitability, or honesty, is a matter for him and the electors alone.

The other historical landmark concerns Charles Bradlaugh, a 19th century dissident and trouble-maker He was an atheist and a republican, which were both more provocative stances then than they are now. A man with a highly developed taste for up-hill battles he also campaigned for women’s votes and the use of contraceptives. Bradlaugh was elected to the House of Commons in 1880 and applied to affirm, instead of taking the usual oath on the Bible. This was a facility already allowed in the courts to people of no religion, but the House of Commons, perhaps glad to find a reason to exclude a potential source of controversy, refused. Bradlaugh then agreed to take the oath. The House then decided that since he did not have the necessary religious belief it would be useless for him to take the oath, and refused to allow that either. Bradlaugh appealed to the courts, who ducked. The judges decided they had no jurisdiction. There was no attempt to disqualify him by anyone and he won four consecutive by-elections, until the House of Commons relented and allowed him to take the oath in 1886. Two years later the law was changed to allow MPs to affirm if they wished to. Three years after that Bradlaugh died. Mohandas Gandhi, then a young lawyer, attended his funeral. It’s a small world. Clearly at this point it was established law that a candidate was entitled to run even if he was demonstrably either unwilling to take the oath or unlikely to be allowed to do so.

The only more recent case which comes to mind is that of Lord Stansgate, later better known as Tony Benn. He was an MP – then going under the name of Anthony Wedgewood Benn – in 1961 when his father died and he inherited the title. There is a long-established rule that members of the House of Lords may not sit in the Commons. Benn complained bitterly that he did not wish to be a peer and did wish to stay in the Commons. The seat was declared vacant. He ran in the ensuing by-election and won. An election court then decided that his candidacy was void and awarded the seat to the runner-up. The government accepted that the situation was unsatisfactory and moved to change the law to allow hereditary peers to unpeer themselves. The “winner” occupying Benn’s seat promised that if the law on this matter was changed he would resign. It was and he did. From our point of view the interesting thing is again the role, or rather the non-role, of the returning officer. Benn was in a category explicitly barred by both statute and tradition from sitting in the House of Commons. He was nevertheless still allowed to run.

And it appears that in most places this is still the rule. It is not the job of the returning officer to consider whether the candidate is qualified or honest. The Electoral Commission which runs these matters in the UK produces a set of rules and requirements for returning officers. The commission does not have the gift of concise speech, but in one brief lurch into lucidity it summarises the duties of returning officers as:

• nominations
• the printing of the ballot papers
• the counting of votes cast in the election
• declaration of the result

Readers will have to take my word for it that in the lengthy section on nominations there is no provision for vetting or excluding candidates. On the contrary the “service expectations” explicitly urge returning officers to help and encourage candidates by, for example, allowing early “informal” submission of nominations so that any deficiencies can be remedied before the deadline.

This is so routine a matter that the similar guidelines issued in Edinburgh provide a summary as follows:

• setting up polling places
• providing staff to work at polling stations
• managing the postal voting process
• counting the votes
• declaring the results

With, you will notice, no mention of nominations at all.

I conclude that the law in England, and in Hong Kong at least until 1997, was that returning officers were not authorised and indeed not allowed to kick a candidate off the hustings for any reason. The right to vote was not to be curtailed by external restrictions on who electors could vote for, however ill-advised some choices might be. This is a very fundamental principle and I imagine judges will be reluctant to disturb it. Whether it has been overthrown by the various bits of Basic or Hong Kong Law now being cited by the government’s supporters is a matter for their Lordships. Do not, however, be deceived by suggestions that it is perfectly normal and natural for returning officers to vet the candidates. Not in our system it isn’t.