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From ‘arms, malice, and menacing’ to the courts: disputed elections and the reform of the election petitions system

Published online by Cambridge University Press:  02 January 2018

Caroline Morris
Caroline Morris*
Affiliation:
Queen Mary, University of London
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Abstract

For almost as long as there have been elections, their outcomes have been disputed. Disgruntled candidates have tried many different avenues to right the wrongs of an election they consider they should have won. For several hundred years, jurisdiction over disputed elections was exercised by the Monarch personally, then by the courts, and then by Parliament until finally, in the 1860s, Parliament ceded its power to the courts in the form of the election petitions jurisdiction. This paper considers that history, examines the current system of election petitions, and proposes a number of reforms to this crucial aspect of British democracy.

Type
Research Article
Information
Legal Studies , Volume 32 , Issue 2 , June 2012 , pp. 226 - 254
Copyright
Copyright © Society of Legal Scholars 2012

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References

1. Watkins v Woolas[2010] EWHC 2702.

2. RPA, s 159(1).

3. Ibid, s 160(4) and (5).

4. R(Woolas) v Parliamentary Election Court for Oldham East and Saddleworth (Unreported, CO/11578/2010, 8 November 2010).

5. R(Woolas) v Parliamentary Election Court for Oldham East and Saddleworth[2010] EWHC 3169.

6. Neale, JE The Elizabethan House of Commons (London: Jonathan Cape, 1949) p 255 Google Scholar.

7. See Richardson, HG ‘John of Gaunt’ (1938) 22 BJRUL 175 Google Scholar at 190.

8. This episode is recorded in law French in Glanville, J Reports of Certain Cases Determined and Adjudged by the Commons in Parliament (London: S Baker & G Leigh, 1775) pp xi–xii Google Scholar. An English translation can be found in Riess, L [K Wood-Legh (transl)] The History of the English Electoral Law in the Middle Ages (Cambridge: Cambridge University Press, 1940) pp 52 Google Scholar and 57.

9. Glanville, above n 8, p 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 ( Maddicott, J ‘Parliament and the constituencies’ in Davies, RG and Denton, JH (eds) The English Parliament in the Middle Ages (Manchester: Manchester University Press, 1981) p 73 Google Scholar); 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) Bulletin of the Institute of Historical Research 21); and in 1404, the sheriff of Rutland had returned William Ondeby instead of Thomas Thorp (Rot Parl III, 530). 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, at 191); 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, p xiii).

10. Keeler, MF ‘the emergence of standing committees for privileges and returns’ (1982) 1 Parliamentary History 25 CrossRefGoogle Scholar at 39 fn 13.

11. Ibid.

12. See for example Cherry, GL ‘Influence of irregularities in contested elections upon election policy during the reign of William Iii’ (1955) XXVII J Mod Hist 109 CrossRefGoogle Scholar, cataloguing the prevalence of corrupt practices such as bribery, treating and intimidation in the later 1600s and 1700s.

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15. Oxford Case (1924) 7 O'M & H 49.

16. In re Bristol South East Election Petition[1964] 2 QB 257.

17. Malone v Oaten (1997). This case, although well-known, has not been reported, as the petition did not receive a full hearing before the court decided 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.

18. Riess, above n 8, p 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, 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: Wedgewood, JC History of Parliament 1439–1509 Register (London: HMSO, 1938) pp cviii–cx Google Scholar.

19. Riess, above n 8, p 17.

20. Sporadic returns for an earlier election in 1254 are also available: see J Maddicott ‘The earliest known Knights of the Shire’ (1999) Parliamentary History 109.

21. Cox, H Antient Parliamentary Elections (London: Longmans, 1868) p 90 Google Scholar.

22. See JG Edwards ‘The emergence of majority rule in English Parliamentary elections’ (1964) Trs Royal Historical Society 175 at 189–190.

23. See Kishlansky, MA Parliamentary Selection: Social and Political Choice in Early Modern England (Cambridge: Cambridge University Press, 1986) pp 33–37 CrossRefGoogle Scholar for examples of the range of procedures in use.

24. Freedom of Election Act 1275, 3 Ed I c 5.

25. See for example complaints about this in the Huntingdonshire county election of 1458, detailed in Cox, above n 21, p 117.

26. 7 Hen IV c 15.

27. Given that only about half a dozen names were ever appended, Cox, above n 21, p 125, considers that these were more likely to be a sample of the candidates' more eminent supporters rather than the total electorate.

28. Riess, above n 8, p 53.

29. 11 Hen IV c 1.

30. Electors of Knights of the Shires Act 1429, 8 Hen VI c 7.

31. 23 Hen VI c 14.

32. For an example of such a case, see Buckley v Thomas 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.

33. For example, 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, pp xvi–xvii.

34. Riess, above n 8, p 4.

35. See Wedgewood, above n 18, p 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.

36. See Hirst, D ‘Elections and the privileges of the House of Commons in the early seventeenth century: confrontation or compromise?’ (1975) XVIII Hist J 851 CrossRefGoogle Scholar at 860–861.

37. 7 Hen IV.

38. O'Leary, above n 13, p 7.

39. Cox, above n 21, p 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.

40. Neale, JE ‘Three Elizabethan elections’ (1931) 46 Eng Hist Rev 209 CrossRefGoogle Scholar.

41. Ibid, at 210.

42. Hirst, above n 36, at 858 fn 33.

43. Bronker's Case reported in Valliant, J Dyer's English King's Bench Reports (1688) (London: Butterworth, 1794) p 168b Google Scholar.

44. Neale, above n 6, p 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.

45. See Neale, above n 40, for reports of two cases in 1588 and another in 1601. See also Neale, JE ‘More Elizabethan elections’ (1946) 61 Eng Hist Rev 18 CrossRefGoogle Scholar, and Neale, above n 6, pp 265–271, reporting on another case from Chichester in 1586 and one from Gloucester in 1597, at pp 279–280.

46. Neale, above n 6, p 255. But see Hirst, above n 36, p 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 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.

47. Neale, above n 6, p 255. Some Star Chamber cases took years to resolve.

48. Kishlansky, above n 23, pp 17–18.

49. O'Leary, above n 13, p 7.

50. Hirst, above n 36, p 856.

51. See Neale, JE Elizabeth I and her Parliaments 1584–1601 (London: Jonathan Cape, 1957) pp 184–187 Google Scholar.

52. Attendance in Parliament Act 1514, 6 Hen VIII c 16.

53. See Elton, GR The Parliament of England 1559–1581 (Cambridge: Cambridge University Press, 1986) pp 338–341 CrossRefGoogle Scholar for a discussion of the evolution of this privilege.

54. Hatsell's Precedents I (London: Hansard, 1818) pp 80–81. Similar cases were recorded in 1575 (Commons Journals I, 104) and in 1580 (Commons Journals I, 122).

55. Keeler, above n 10, at 28.

56. Commons Journals I, p 63.

57. Keeler, above n 10, at 28.

58. Ibid.

59. Glanville, above n 8, p 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 Jan 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, p xlii.

60. Hirst, above n 36, at 855–861.

61. See in particular, Glanville, above n 8, pp 118–119 reporting the case of a disputed election for the borough of Monmouth: ‘…the 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’.

62. McIlwain, CH The High Court of Parliament and its Supremacy (New Haven: Yale University Press, 1910 Google Scholar, rep 2004).

63. Wittke, C The History of English Parliamentary Privilege (New York: Da Capo Press, 1970) p 56 Google Scholar.

64. (1604) St Tr 91.

65. 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: Munden, RC ‘the defeat of Sir John Fortescue: Court versus county at the Hustings?’ (1978) 93 Eng Hist Rev 811 CrossRefGoogle Scholar at 812.

66. Hirst, above n 36, at 851.

67. Ibid, at 856. Hirst notes that the Commons appears to have been more concerned with Chancery's jurisdiction than the Star Chamber's.

68. See the Monmouth case, reported in Glanville, above n 8, p 119.

69. (1674) Pollex 470; 86 ER 615.

70. Sharwood, RL ‘Banardiston v Soame: a restoration drama’ (1964) 4 Melb ULR 502 Google Scholar.

71. 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.

72. The Exchequer Chamber was established in 1585 as an appellate court from the King's Bench: Sharwood, above n 70, at 520.

73. (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 70, at 531–532.

74. Ibid, at 1094.

75. Ibid, at 1098.

76. Ibid, at 1109.

77. Cherry, above n 12, at 123.

78. Parliamentary Elections (Returns) Act 1695, s 1.

79. 7 Mod 14; (1702) 87 ER 1065. Similar comments were made in the great voting rights case of Ashby v White (1703) 2 Ld Raym 938 at 951, and in 1704, the House of Commons again passed a resolution asserting its sole right to determine disputed elections: Ashby v White (1703) 1 Bro 417 at 419.

80. Keeler, above n 10, at 37.

81. Ibid, at 26.

82. Keeler, MF ‘the committee for privileges of the House of Commons 1604–1610 and 1614’ (1994) 13 Parliamentary History 147 CrossRefGoogle Scholar at 153.

83. Ibid.

84. (1623) Commons Journal 677–678; (1623) Commons Journal 724.

85. Anson, WR The Law and Custom of the Constitution: vol 1 Parliament (Oxford: Clarendon Press, 5th edn, 1922) p 180 Google Scholar.

86. Feiling, K A History of the Tory Party 1640–1714 (Oxford: Clarendon Press, 1924) p 275 Google Scholar. Kishlansky, above n 23, pp 108–121 attributes this to the rise in significance of the Parliament during and after the English Civil War.

87. See Cherry, above n 12, for numerous examples of elections affected by corruption during this period.

88. 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, pp 198–199.

89. Cherry, above n 12, passim.

90. Parliamentary Elections Act (hereafter PEA) 1770, s 5.

91. Ibid, s 13.

92. Ibid, s 6.

93. Ibid, s 18.

94. Ibid, s 17.

95. Ibid, s 18.

96. Ibid.

97. Ibid, s 25.

98. Grego, J A History of Parliamentary Elections and Electioneering (London: Chatto and Windus, 1886) p 66 Google Scholar.

99. O'Leary, above n 13, p 20.

100. This appears to have been inspired by the system applied to Ireland by the Controverted Elections Act, 42 Geo III. 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).

101. O'Leary, above n 13, p 20.

102. 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.

103. 4 & 5 Vict c 58, s 30.

104. Ibid, s 22.

105. Ibid, s 43.

106. Ibid, s 78.

107. Ibid, s 74.

108. Ibid, s 76.

109. Ibid, s 84.

110. Bribery at Elections Act 1842, 5 & 6 Vict c 102, s 2.

111. Ibid, s 4.

112. Election Commissioners Act 1852, 15 & 16 Vict c 57, s 1.

113. Ibid.

114. Ibid, s 7.

115. O'Leary, above n 13, pp 32–33.

116. Ibid, p 35.

117. Ibid, p 36.

118. Ibid, p 37.

119. Ibid, p 37.

120. Ibid, pp 37–38.

121. Ibid, p 41.

122. 31 & 32 Vict c 125.

123. PEA 1868 s 2 applied the Act to Irish elections. Petitions were heard in the court of Common Pleas in Dublin. See O'Leary, above n 13, pp 49–56 for the details of each of the 34 English borough petitions brought after the 1868 election.

124. Some of this may have been attributable to the expense of bringing a petition: ibid, p 92.

125. Ibid, p 56.

126. Ibid, p 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.

127. O'Leary, above n 13, pp 107–108.

128. Ibid, p 181.

129. Butler, above n 14, p 173.

130. Wilks-Heeg, S Purity of Elections in the UK (York: Joseph Rowntree Reform Trust, 2008) pp 73–74 Google Scholar.

131. See Butler, above n 14, p 173, writing in 1999 that only two parliamentary petitions on the grounds of malpractice had succeeded since 1918.

132. 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) Parliamentary Affairs 654.

133. Wilks-Heeg, above n 130, pp 73–74.

134. Ibid, p 31.

135. Ibid, p 9 (with the exception of the City of London police).

136. 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.

137. The Rowntree Report quotes the former Chair of the Committee on Standards in Public Life as saying that the government appears to be ‘in denial’ about these concerns: Wilks-Heeg, above n 130, p 12. Although the government at a late stage in the debate made provision in the Political Parties and Elections Act for individual registration (ss 30 and 33), this will not be in place before 2015.

138. Ibid, p 5.

139. Representation of the People Act 1983, s 120(1).

140. Ibid, s 121(1).

141. Ibid, s 121(2).

142. [1995] 1 WLR 128 at [138].

143. (2006) EWHC 262.

144. RPA 1983, s 181(2).

145. Ibid, s 123(1).

146. Ibid.

147. Ibid, s 123(2).

148. Ibid, s 139(1).

149. Ibid, s 147. This provision is designed to prevent the parties deciding the outcome of the election informally among themselves.

150. Ibid, s 144(4).

151. 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.

152. Ibid, s 144(1).

153. Ibid, s 144(2).

154. 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: Helmore, LM Corrupt and Illegal Practices (London: Routledge & Paul, 1967) p 93 Google Scholar.

155. RPA 1983, s 144(7).

156. Ibid, s 144(4).

157. Ibid, s 160(3).

158. Ibid, s 146.

159. Ibid, s 157(1).

160. See Strickland v Grima[1930] AC 285 (PC Malta) on the interest in speedy resolution of disputed elections.

161. [1975] 1 WLR 1319 at 1323.

162. [1984] QB 68 at 88.

163. [1999] EWHC Admin 377 at [7].

164. [2010] EWCA Civ 859.

165. RPA 1949, s 110(2). Now s 123(2) RPA 1983.

166. Cripps, above n 162 at 87.

167. R(Woolas) v Parliamentary Election Court[2010] EWHC 3169 at [32].

168. Ibid.

169. Ibid, para 33.

170. Ibid, para 35.

171. Ibid, paras 40–42.

172. Ibid, paras 43–47. On the discussion of this issue in the Australian context, see Holmes v Angwin (1906) 4 CLR 297.

173. See O'Leary, above n 13, p 47.

174. RPA 1983, s 181(1).

175. Crown Prosecution Service ‘Election offences’, available at http://www.cps.gov.uk/legal/section12/chapter_i.html.

176. Attorney-General v Jones[1999] 3 WLR 444.

177. Home Office Final Report of the Committee on Electoral Law Reform Cm 7286 (London: HMSO, 1947) p 18.

178. Ibid.

179. (unreported, Slough, 18 May 2008) R.20.

180. Hussein v Khan, above n 143 at [64].

181. Ibid: commenting that the returning officer's attendance would be ‘invaluable if there is to be no public funding of Petitioners or Respondents’.

182. See Monks, D Practical Elections Administration (Crayford: Shaw & Sons, 2008) pp 101–103 Google Scholar.

183. Stewart, above n 132, at 666.

184. Commonwealth Electoral Act 1918 (Cwlth), s 359.

185. Ibid, s 357(1). This power relates to national parliamentary elections.

186. Ibid, s 357(1A).

187. If a model closer to home is thought more appropriate, the Electoral Commission's powers could 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 relevant to a matter in which the Commission has a function’. Under such a model, the Commission would be able to bring a case where the aim was to clarify the law or do so in the general public interest, and the costs would be borne by the state rather than an individual. I am grateful to one of the anonymous referees for elaborating on the implications of this suggestion.

188. Parliamentary Elections Act 1868, s 15.

189. Parliamentary Elections and Corrupt Practices Act 1879, s 12.

190. Representation of the People Act 1969.

191. R Price ‘Election fraud has increased since postal ballot reforms, says watchdog’Telegraph (9 February 2009). These concerns may be somewhat assuaged by the introduction of individual voter registration in the Political Parties and Elections Act.

192. Electoral Commission Allegations of Electoral Malpractice at the 2008 Elections in England and Wales (London: Electoral Commission, April 2009) p 4 Google Scholar. The Commission reported that 103 cases of electoral malpractice were recorded at the 2008 local elections: ibid, p 16.

193. Political Parties and Elections Act, s 2, inserting new Sch 19B into PPERA.

194. Political Parties and Elections Act, s 3, inserting new Sch 19C into PPERA.

195. 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, s 5); it has the power to provide advice and assistance to returning officers and electoral registration officers (PPERA, s 10); it sets performance standards for electoral officers (PPERA, s 9A and 9B); and it monitors party finances (PPERA, Pt III).

196. PPERA, Sch 1, para 2.

197. [2008] EWHC 1762 (Admin).

198. Ibid, para 14.

199. [2008] QB 775 at [25].

200. Political Parties and Elections Act, s 1(2).

201. Whether the Commission should or could take on a greater role with regard to elections more generally is an interesting question but one which is beyond the scope of this paper.

202. By extension, this would also include injunctive powers.

203. O'Leary, above n 13, p 202, citing the Law Journal.

204. Ibid, p 203.

205. Electoral Law Committee Cmnd 7286 (London: HMSO, 1947) p 18. The short time frame (21 days, or 28 in some cases, after the return is made) for bringing a petition may also have some impact. On this latter point, see Orr, G and Williams, G ‘Electoral challenges: judicial review of Parliamentary elections in Australia’ (2001) 23 Syd LR 54 Google Scholar at 74.

206. Letter from the Speaker Cmnd 2880 (London: HMSO, 1965) p 2.

207. Conference on Electoral Law Cmnd 3275 (London: HMSO, 1967) p 5.

208. Conclusions on Review of the Law Relating to Parliamentary Elections Cmnd 3717 (London: HMSO, 1968).

209. Morris, R and Monks, D Running Elections 2007 (London: Solace Enterprises, 2007) p 150 Google Scholar.

210. RPA 1983, s 136(2)(a).

211. Commonwealth Electoral Act 1918 (Cwlth), s 356.

212. Published in book form as Fraud at the Elections (Nottingham: Spokesman, 2005).

213. Ibid, para 320.

214. White, I Postal Voting and Electoral Fraud (London: House of Commons, 2007) p 10 Google Scholar.

215. Hussein v Khan, above n 143, para 9.

216. For examples of this occurring, see Monks, above n 182, pp 91–92.

217. Ibid, p 92.