Wednesday, 20 November 2019

Disqualifications, By-Elections, and Supersedeas


Yes, there is a general election going on. This article is not about those. Instead, let's consider what happens when an MP needs to be replaced while Parliament is sitting. Unsurprisingly this happens relatively often [1], the most recent occasion being in Brecon and Radnorshire on 1st August this year.

What happens less often is that after deciding that a by-election is needed, sometimes the Commons then realises one can't or shouldn't happen. For this we have to consider the extraordinarily exotic 'writ of supersedeas'.

But to get there, we first need to consider the concept of MPs resigning (they can't) and MPs engineering their own disqualification (which they can certainly do).

(The dissolution proclamation article really is coming, I just keep finding more!)

Resigning as an MP

Members of the House of Commons can't resign. This seems to have been, with some exceptions, the invariable practice of the House since time immemorial. This helpful factsheet [3] from the House of Commons notes that on the 2nd March 1623 [4] the House passed a resolution that "that a Man, after he is duly chosen, cannot relinquish". What is interesting, at least to me, about this is that this resolution appears in the Journals to be incidental to dealing with a controverted election in Southwark [5]


Now, straight off the bat, yes that is Sir Edward Coke, of Pleas of the Crown fame. Small world. The important thing here isn't whatever mess the burgesses of Southwark had got themselves into with their election, but that one of the contenders, Mr. Bromfeild, tried to essentially concede the seat to Mr. Mingy but the Commons were having none of this. I doubt they thought we would still be citing their consequential motion 396 years later though [6].

So, how does one cease to be an MP? Well, the only way in practice is to engineer one's own disqualification.

Disqualification

Broadly speaking, the reasons an MP can become disqualified have not changed much for centuries. Most of the following were originally by immemorial practice, now often (but not always) codified in various statutes, one can't become or remain an MP if one is
  1. Not an adult (originally twenty-one, lowered to eighteen by section 17 of the Electoral Administration Act 2006) 
  2. Not a British or Commonwealth citizen, originally the criteria was being a natural-born subject [7] per section III of the Act of Settlement 1701; this was softened to being a British or Commonwealth citizen by schedule 7 to the British Nationality Act 1981; and then slightly tightened to only allow Commonwealth citizens with indefinite leave to remain by section 18 of the Electoral Administration Act 2006 [8]
  3. Subject to a bankruptcy restrictions order or undertaking [9], now contained in section 426A of the Insolvency Act 1986 (historically the criterion was being an undischarged bankrupt)
  4. Being a member of the House of Lords — there is no statutory authority for this (except for Lords Spiritual), it having simply ever been the rule [10]
  5. Being imprisoned for more than one year per section 1 of the Representation of the People Act 1981 (except for high treason, where any imprisonment suffices, per section 2 of the Forfeiture Act 1870 [11])
  6. Holding a disqualifying office per the House of Commons Disqualification Act 1975 — the original prohibition was much more stringent and excluded any holder of any office of profit under the Crown, no matter how esoteric (we will return to this below).
Two other historical disqualifications are worth mentioning. The first was being an ordained member of the clergy. This was abolished by the (obviously named) House of Commons (Removal of Clergy Disqualification) Act 2001 [12]. The second was being detained in a mental hospital. This most recently found form in section 141 of the Mental Health Act 1983, and was repealed by section 1 of the Mental Health (Discrimination) Act 2013. Additionally, as highlighted in Bradlaugh's case, one was functionally unable to sit and vote if one couldn't or wouldn't take the oath, but merely not doing so does not of itself vacate one's seat.

(Note: here I omit any discussion of ways to accidentally, or forcibly [13], cease to be an MP but which have no continuing effect, like voting before taking the oath because they're simpler)

Offices of Profit

On the 30th December 1680, the Commons resolved that [14]


Various pieces of legislation were passed over the ensuing centuries regulating this, but the situation became that accepting any office of profit was instantly disqualifying. This obviously presented issues for Ministers, so a series of Acts provided first that they could continue to sit having submitted themselves to a by-election, then that such by-elections were only needed for new appointments more than nine months after a general election, and thereafter abolished. 

This eventually became utterly unworkable. For one, various totally innocent MPs who held esoteric minor offices could find themselves accidentally disqualified. But more serious, it was provided, eventually by the Representation of the People Act 1949 that any person could bring an action against an MP sitting whilst disqualified as a common informer (at least until the Common Informers Act 1951 abolished that). After some false starts and much tweaking, Parliament passed the House of Commons Disqualification Act 1975 to provide a comprehensive and complete list of disqualifying offices. Almost all of these are obvious (although the list is very, very, very, very, long [C1]) but two stand out in section 4


And this is the procedure we're going to consider going forth — although disqualification by other means proceeds in broadly the same way after the first step. Or at least we would stick to just this procedure if Ben had FOIAed the correct thing. But nothing much turns on that.

So, you want to resign as an MP?

We have noted that MPs can not resign. But if an MP were to intentionally accept a disqualifying office, say as Crown Steward and Bailiff of an obsolete manor in the Chilterns, that MP would ipso facto cease to be an MP — so there is a method. (I guess an MP could also engineer their own bankruptcy or imprisonment but that seems rather extreme)

For reasons that remain obscure [15] the Chancellor of the Exchequer appoints Crown Stewards and Bailiffs of either the Chiltern Hundreds or the Manor of Northstead. So to resign, MPs write to the Chancellor and ask to be appointed. Theoretically, this could be refused (and has been in the past, usually when an MP was facing some sort of Commons investigation into a controverted election and was trying to dodge it), but never has been in modern times. Her Majesty's Treasury will then cause a warrant in the following form to be issued, first for the Chiltern Hundreds

(This is the warrant appointing Chris Huhne as Crown Steward on 5th February 2013; sorry it's blurry, blame HM Treasury's scanners; obtained by the indefatigable Steve Elibank )



(This is the warrant appointing David Cameron as Crown Steward on 12th September 2016; this time procured by Ned Donovan and scanned somewhat more legibly)

These warrants display a rare outing of the Chancellor's full title as "Chancellor and Under-Treasurer of Her Majesty's Exchequer". In theory, once appointed, one remains a Crown Steward until either released (for example to run for Parliament again, e.g. as David Davies did in 2008) or until a successor is appointed. In Huhne's case we can see he is replacing Denis MacShane; in Cameron's case, and I know not why, his predecessor as Crown Steward, Huw Iranca-Davis, is not mentioned.

Once this warrant is signed by the Chancellor, the Speaker causes a entry to be made in the Votes & Proceedings, and ultimately the Commons Journals, that the member concerned has ceased to be an MP. However, this doesn't in and of itself cause a by-election. So, on 12th September 2016, in the Votes & Proceedings [16]



I pause here to note that the death of a member is noted immediately after prayers by the Speaker, and any statement he makes is recorded in the Journals, e.g. as happened on 27th February 2016 when Sir Gerald Kaufman died [17]

The Warrant

No election can occur until a writ is issued from the Crown Office to the relevant Returning Officer to cause it to happen. In a general election, by virtue of section 3(3) of the Fixed-term Parliaments Act 2011, this is entirely automatic. In a by-election it needs to be requested (modulo one case) by the House of Commons. By a weak convention, the motion for this — specifically a motion requesting the Speaker issue his warrant to the Clerk of the Crown in Chancery — is moved by a whip of the party the departing MP hails from. For example, on 27th June 2019 after Christopher Davies had been unseated by a recall petition [18] [19]


This motion is debatable (and has been in the past) and it has been held that negativing it prevents the 'writ being moved' again for the remainder of that session (the expedient of the previous question [20] has been resorted to to avoid this problem [20bis]).

The Speaker then sends a warrant to the Clerk of the Crown. Of which I have obtained a copy 
I meant to also get the 'disqualifying office' one but I forgot. For the decease of a member, see the Annexe at the end of this article. I rather like both the phrasing "By virtue of an Order of the House of Commons this day made" and "For which this shall be your sufficient warrant".

Recess Elections Act 1975

The Recess Elections Act 1975 provides a, in my humble opinion, Byzantine set of provisions permitting by-elections to be held without needing a motion in the Commons. Section 1(2) excludes the two Crown Steward 'offices' from its operation, but otherwise it applies to all deaths, disqualifying offices, and bankruptcies. If two MPs deliver to the Speaker during any recess a certificate in the form in Schedule, viz. something like


and the various procedural hoops about Gazetting the vacancy and so on are jumped through, the Speaker can issue his warrant and a writ of election will be issued. Historically, this procedure used to be used with reasonable frequency — it was common to see after any long recess the Speaker announcing a list of writs issued in the recess. In modern times it seems to be broadly neglected.

By way of conclusion for this section, the provision in section 4 for having between three and seven MPs exercise the Speaker's powers under the Act is wonderfully... odd...


(4(1) does hint at a seal used by the Speaker, which I would love to see)

Writ of Election

The form of the writ of election is provided by the appendix [21] to schedule 1 to the Representation of the People Act 1983 (no amendments of consequence have been made since 1983 so lets use the Queen's Printer edition of the Act since I prefer the formatting)


In the flesh they look like this. [22]

The actual process for sending the writs out is, naturally, itself a little odd, but I think I will save that for a more comprehensive "UK election oddities" article.

Supersedeas

What happens if the Commons don't want a by-election any more? Fear not, the British constitution has provided for this eventuality too [23]. The Commons can resolve to have Mr. Speaker ask the Clerk of the Crown in Chancery issue a 'writ of supersedeas' cancelling the by-election. Most recently (indeed the first time for over a century) this was done in 2017 to cancel the Manchester Gorton by-election due to the early General Election [24] [25]:



This was last resorted to in 1880, when the Hon. Henry Strutt became the second Lord Belper ("called up to the House of Peers", as the Journals will record) but it transpired he was slow sorting out the formalities [26]


The writ itself had been moved on the 6th [27]


The House tried again, more successfully, on the 12th July [28] (taken from the Journal because volume 254 of Hansard is missing online)


A supersedeas was also resorted to in 1851 when a writ of election was inadvertently issued when it was supposed that being appointing an ambassador was an office of profit (for some unclear reason, it wasn't) [29]


And in 1830 (although this says volume 1, it really means volume 1 of the third Hansard series, the curious might note that the sixth series began in March 1981) as a way of penalising corruption (I think) [30]


Final Observations 

Like a lot of the British constitution, the process of being disqualified from the Commons, and how one is replaced, is scattered through a myriad of documents spanning several centuries. However, one thing is not written down anywhere: no enactment provides authority for the Commons to order by-elections to occur, that's one of the those truly unwritten constitutional things. The same for writs of supersedeas.

Corrigenda

[C1] Originally here we had "and the online version is wrong!"; after a gentle prod from the National Archives and a quick check, it transpires the online list is correct and Ben was wrong. For what it is worth, historically, this wasn't true...

Colophon

The journals of the House of Commons (the very old ones) can be found on British History Online. Hansard, the (somewhat old) Journals, and the Votes & Proceedings are licensed under the Open Parliament License.

I am also eternally grateful to those who went before me with FOIA requests for things :-)


[1] Although it used to happen even more often; not only were there more deaths of MPs (well at least it seems there were) but in the nineteenth century the ministerial by-election [2] was still a thing
[2] I prefer the hyphen and I'm sticking to it. Manuals of Style be damned. Also footnoting a footnote.
[3] House of Commons Information Office, Procedure Series Factsheet P11, April 2011
[4] Old style; i.e. when the Julian calendar was used (not important here) and when the start of the year was Lady Day. I like this so I'm not "modernising" the date.
[5] House of Commons Journal, volume 1, 2nd March 1624
[6] By way of aside, until the nineteenth century, the Commons used to spend an incredible amount of time dealing with controverted elections.
[7] Not in the more modern very specific meaning of the term British Subject, on which nothing of consequence here turns
[8] Yes, a little convoluted this one!
[9] Or having a sequestered estate in Scotland
[10] Interestingly there is also no statutory authority for the prohibition on members of the House of Lords voting
[11] Until the Criminal Law Act 1967 amended it, a comparable prohibition was actually to be found in the Forfeiture Act 1870 too. Arguably, the 1981 Act 'put things back how it was'.
[12] This prohibition having been extended to the Church of Scotland by the House of Commons (Clergy Disqualification) Act 1801, now repealed.
[13] The two 'forced' methods are being expelled the House (now rare), or being unseated on a recall petition under the Recall of MPs Act 2015 (contrary to all expectations, not as rare as predicted!). Historically, one could also effectively demit office as MP for place X if elected to two or more places after one made their election for which one they wanted to sit for. As usual the Electoral Administration Act 2006 abolished this (boo!)
[14] House of Commons Journal, volume 9, 30th December 1680
[15] At least to me, though I'll throw in a bit of trivia as compensation: if the office of Chancellor of the Exchequer is vacant, the job would devolve on the Chief Baron of the Exchequer, which after the merger of all the various superior courts in the late nineteenth century combined with the Lord Chief Justice...
[16] Votes & Proceedings, number 35 of the session 2016-17, 12th September 2016
[17] Votes & Proceedings, number 155 of the session 2016-17, 27th February 2017
[18] I would have used a disqualifying office as the example here but for reasons that will rapidly become clear, this example is better. The process is identical though.
[19] Votes & Proceedings, number 321 of the session 2017-19, 27th June 2019
[20] A topic for another day, that.
[20bis] somewhere in this debate
[21] An appendix to a schedule is a bit perverse, but compared to the rest of election law this is pretty ordinary...
[22] If the Crown Office ever reply to my FOIA request, I will insert the actual Brecon & Radnorshire writ here...
[23] When I discovered this I was actually surprised, simply because this is the sort of lacuna one comes to expect in election law.
[24] Votes & Proceedings, number 138 of the session 2016-17, 20th April 2017
[25] Again, if the Crown Office stop ignoring me, I would have the text of the writ here. I will insert it one day, hopefully...
[26] House of Commons Debates, volume 253, column 1919, 8th July 1880
[27] House of Commons Debates, volume 253, column 1748, 6th July 1880
[28] Commons Journal, volume 135, page 294.
[29] House of Commons Debates, volume 114, column 14, 5th February 1851
[30] House of Commons Debates, volume 1, column 1217, 16th December 1830

Annexe

Form of the Speaker's warrant for a writ of election after the decease of a member:
(blame the House of Commons for the terrible scan)

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