Saturday, 23 November 2019

Demises of the Crown and Elections


No one wants to think about it, London Bridge, that is. But the law must. One of the odder aspects of a demise of the Crown [1] only occurs if a General Election is underway at the time. And that is what we shall consider here.

A Bit of History

Originally, the King was seen as caput, principium, et finis of Parliament [2]. That is, a demise of the Crown would ipso facto put end to the sitting Parliament [3]. Not having a sitting Parliament when the succession might be contested, for example, as might have happened in the first decade of the eighteenth century if the Hanoverian succession was challenged, was seen as inexpedient, however.

So, in 1707, Parliament passed "An Act for the Security of Her Majesties Person and Government and of the Succession to the Crown of Great Britain in the Protestant Line", otherwise known as the Succession to the Crown Act 1707 [4]. Section IV of which (which we shall return to in a future blog to discuss its other effects) abolished the rule of law that Parliaments dissolve on a demise, viz.

The unamended version [5] of this Act then, instead, provided that a dissolution must follow within six months. This provision, for example, caused the highly consequential 1830 General Election which had a role in the Reform Bill Crisis [5bis].

Even this was seen as annoying by 1867, however. Although, obviously, there had been no demise related dissolutions since 1837 [6] the changing nature of Parliament and democracy made a forced dissolution undesirable. Therefore, section 51 of the Representation of the People Act 1867 [7] provided (from the Queen's Printer edition)

or as still in force today,

So now Parliaments continue without interruption on a demise of the Crown. But what happens if the demise occurs during the election campaign itself?

Demises during the Election

Originally, Parliamentary elections took ages [8]. And so many opportunities were provided for Returning Officers to delay or modify proceedings that no specific provision for dealing with public mourning on a demise was necessary. With the various reforms to the election process, culminating with the rules providing for a fixed day of polling across the whole country, some provision became necessary.

The 'computation of time' rule, which now finds itself as Rule 2 of the Parliamentary Election Rules [9] looks like it might provide an answer, viz. by declaring all days of public mourning to be dies non [10]. But what even is a day of public mourning? Instead for a demise of the Crown, a bespoke legislative provision is provided at section 20 of the Representation of the People Act 1985 (as inserted in place of the old section 20, which we will consider momentarily, by the Fixed-term Parliaments Act 2011), 



In effect this inserts 14 calendar days of dies non into the timetable on the day the demise occurs (except one situation) if it precedes polling day. The logic, of course, is that it is untenable to have an election campaign during the mourning and funeral processes of the late Sovereign. Of course, after polling day, Parliament can simply assemble and then decide what to do. Legislative provision is needed to alter the effect of the summoning proclamation and writs which would otherwise bear the 'wrong' date, but otherwise, despite a 14 day hole being carved out of it, the election will proceed as normal.

The previous situation was similar, but but because previously the date of dissolution was not fixed, being instead determined by proclamation, it was a bit more woolly,




In addition, the fixed date of dissolution provided for by section 3(1) of the Fixed-term Parliaments Act 2011 required the inserted version to include a provision to handle a demise close to the start of the campaign [11]. I assume to avoid prolonging the existence of a Parliament beyond the five-year mark accidentally, this provision, found at 20(7), simply pretends the demise happens on the day of dissolution. I.e. the fourteen dies non are inserted right at the start of the campaign.

Is fourteen days enough? If the leaked London Bridge materials are anything to go by, ten-ish days is the plan for mourning and a funeral, so yes. Fourteen calendar days has the advantage of keeping the election on a Thursday... or does it?

A Friday General Election?

The fourteen day rule above can, in two special situations, cause a Friday [12] General Election. And indeed, in theory could do so this year. Assuming a Thursday day of polling, there are only 'two' [13] dies non which can coincide (since the abolition of Maundy Thursday as a die non in 2006, about which I remain bitter) — Christmas and New Year, as we see in Rule 2,


(the repeal under F5 is Maundy Thursday, by the way, and the original version of this rule provided an even longer period)

Polling day this year is Thursday 12th December. If Her Majesty was, unfortunately, to die, 14 calendar days later would be Thursday 26th December, which as Boxing Day is a Bank Holiday, is declared to be a die non by Rule 2.

When is the next working day? Friday, 27th December. 

So, for the happiness of all our Christmases, let's pray Her Majesty continues!

Colophon

Acts of Parliament are available from legislation.gov.uk under the  Open Government Licence v3.0.

[1] Now, this isn't 'demise' as in decease, it is 'demise' in the Legal French sense of an transfer, deriving eventually from the Latin demitto, or 'send away from', from which we also obtain the English word 'demit' as in my oft used expression calling for someone to resign, 'they should demit office forthwith'.
[2] Blackstone, don't have a page number because I can't remember it and my PDF isn't OCRed so it isn't searchable.
[3] It also had the effect of staying all legal proceedings since the King was likewise the fount of justice, and also causing all of the civil service and household to demit their offices; these greatly unhelpful effects have likewise been abolished.
[4] 6° Ann. cap. 41
[5] I am indebted to Rich Greenhill for pointing this out.
[5bis] I note, as my coming, one day, blog on dissolution proclamations will observe that this necessitated no change in the wording of the proclamation to reflect the sudden reduction in the life of the Parliament — not unsurprisingly, in my opinion.
[6] The King died in June, Parliament continued to sit until Victoria prorogued and then dissolved it in mid-July
[7] 30° & 31° Vict. cap. 102; sometimes known as the 'Second Reform Act' or the 'Great Leap in the Dark'
[8] Actually, the process of election in any particular constituency was relatively zippy, but the overall process of a General Election was most certainly not.
[9] This is Schedule 1 to the Representation of the People Act 1983, from now on when I say Rule X, I mean these.
[10] It really irks me when people write 'a dies non', since dies is clearly plural, so it's "Monday is a die non", but "there are three dies non this week". The Romans had a lovely word, which is plural only, for a similar concept called nefasti, not that that matters. Rant over.
Addendum: it has been pointed out that this footnote is incorrect, mostly because Ben thought (and has thought for ages somehow) that dies was actually a first-declension noun with the stem die. But since eliminating this footnote would give me no way to include the nefasti point, it is staying with this note.
[11] Previously, I assume, the solution here would have just been to 'put off' the dissolution by a few weeks.
[12] Or, if Christmas was one weekday later this year, a Monday one...
[13] I say 'two' because it's really one set and one day: the set of Christmas Eve, Christmas Day, and Boxing Day; and New Year's Day — curiously New Year's Eve is not a die non.

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