What would be the legal position if a parliamentary candidate did not exist?
A non-existent candidate, yesterday.
This question is posed because of concerns currently expressed as to whether Reform Party candidates actually existed or not.
In this internet age, there will be suspicions that a person does not actually exist if they have no social media or other online presence. This sad fact probably tells us more about this internet age than it does about any (wise) person who has kept themselves offline.
A dishonestly presented fictional candidate would be such an extraordinary event at a general election that there must be a better explanation than it having happened. On this basis, this post makes no allegations of wrongdoing in any way. Instead, this post is for the public understanding of law.
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However, such fictional candidates are not without precedent.
One tweeter unearthed this example from 2017:
The BBC news report indicates that the defendant was convicted not of any offence under election law, but under the general fraud offence of using a false instrument with intent:
Another tweeter, however, has pointed out that there is a corresponding offence under section 65A(1)(a) of the Representation of the People Act 1983:
This provides that it is a corrupt practice if a person causes or permits to be included in a document delivered or otherwise furnished to a returning officer a statement of the name or home address of a candidate at the election which he knows to be false in any particular.
A person providing a name and address of somebody who does not exist would presumably be caught by this offence.
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The one “person” who cannot be prosecuted, of course, is the fictional candidate.
This is because they do not exist.
This is not just an amusing point, for much of the Representation of the People Act (understandably) presupposes the candidate does actually exist as a person. For example, here is the power for an election to be voided for general corruption:
Would this section (and other similar sections) still apply if there was not actually “any person” for the purpose of that clause?
The determination of that question would be an interesting judgment to read.
Would the lack of a person as a candidate be the basis for any election to be voided? If so, how? And, in what circumstances?
The wording of various provisions of the 1983 Act may have to have (non-existent) words implied in to them (“purposeful interpretation” as it is called) so as to deal with such a (non-existent) candidate.
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Another interesting point is that it seems that proof of identity for a candidate may be now practically at a lower threshold than for an elector.
Here is the Electoral Commission guidance for returning officers (hat-tip):
That footnote “2” in turn refers to a couple of cases.
Of the first case from 1977, Westlaw tells us that it is authority that where there is nothing on the face of the nomination paper to raise a doubt as to the identity of the nominee, a returning officer is not entitled to investigate the authenticity of the name appearing thereon before deciding whether to accept or reject it.
(The second case, from 1975, turns more on the wording of the sub-rules of a local government statute.)
If this 1977 case is authority for the general position stated by the commission then it does seem a remarkable discrepancy that a voter has to prove their identity whilst a candidate does not.
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The above post is based on research overnight, and on the help of other tweeters (which I gratefully acknowledge), as this simply is not part of my general constitutional law knowledge. It is not a question I have ever considered before.
As such, it would be wonderful if you would supplement (or correct) the above, if you have expertise in this area.
And, if you can, you do not need to prove your identity.
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The Members of the House of Commons as a result as much as anything else of judicial interventions in the late 18th Century reserves to itself the power to decide who does or does not sit in the Commons.
The Commons also, of course, passes laws on how local elections are conducted:
“To become nominated as a candidate you usually need to submit a completed set of nomination papers to your council by 4pm on the 19th working day before the election. However, please contact the Democratic Services team at your council to get the necessary paperwork, confirm the deadlines, and find out what help they can give you to submit your papers correctly.
You will need to get the signature of ten registered electors from the ward you wish to stand in. They must be of voting age and must appear on the local government electoral register that is in force on the 25th working day before the election. ”
https://www.local.gov.uk/be-councillor/becoming-councillor-0#7-how-do-i-become-a-councillor-
Often, it seems the Commons are more stringent about the processes involved in local elections and being a locally elected representative than they are about those applying to Members of the Commons.
It is two signatures required now, rather than 10, for a council election. A parliamentary candidate requires a nominator and seconder, plus a set of supporters – 10 I think. That is supposed to be a safeguard against fictitious or utterly unsupported candidates.
It would appear that if a returning officer knows for certain, from personal knowledge, that a candidate is not who he says he is, the returning officer MUST nevertheless disregard that information.
How else did you think someone like Count Binface ended up on the ballot?
Count Binface’s real name was read out at the Declaration, along with “commonly known as Count Binface”
Political parties are allocated fairly significant sums of public money based both on the number of MPs elected and on the number of votes they received nationally. That is to say, the parties benefit financially from standing candidates even if they lose – as long as the additional money is greater than the cost of standing them. This isn’t affected by political parties putting up paper candidates, but what if those candidates don’t exist? Standing fictional candidates at an election treats voters with contempt, but it has ongoing financial benefits to a political party that does this. I wonder if that raises further legal questions.
There are some constituencies in which you may put a red rosette (and to a lesser degree this year, a blue rosette) on a donkey and get it elected to Parliament.
Reform’s logo was on General Election ballot papers and people freely voted for it.
I would argue that if one or more candidates of a particular party do not exist that does not in any way invalidate the weight of a party’s vote share in an election.
Going by Twitter, that is an opinion not shared by all.
And some folk seem rather confused about the definition of a paper candidate.
I would use maths for this one:
Let candidate = x
Let votes = y
Short money and representation is a product of x and y. Where y = 0 (does not exist), then short money and representation is 0 as the product of a number and zero is always zero.
That seems a rather simple equation in comparison with how Short Money is calculated!
https://commonslibrary.parliament.uk/research-briefings/sn01663/
But the donkey would, I think, exist.
The obvious answer is that if the imaginary candidate hadn’t been on the ballot then the votes would have gone to somebody else or nobody. And people are electing a representative from their constituency to send to Westminster. The national vote share for a party may be interesting but it really has no relevance for a single member constituency model.
A name, imaginary or not, was on the ballot paper.
And given how few people may off the top of their heads name their sitting Member of Parliament, I would contend most people vote for the logo of the party on the ballot paper, not the name of the candidate.
Some people, who would rather Reform did not exist feel the party’s overall success at the General Election may be diminished by casting doubt on how some of their votes were won.
Quibbling over how votes may have been won is not a credible way to counter Reform’s political appeal to its growing number of supporters.
Incidentally, if you ever have the chance to attend an election count, ideally as a party worker you will see some curious comments written on ballot papers.
As a vote counter those comments made my night!
Hi, interesting comment.
I agree with your point about people voting for party logo.
Leaving aside the matter of Reform’s vote share (and I make no assumption about your views on that).
I would think (assume?) that most people who voted by logo, still had an implicit assumption that the person with their name next to the logo really existed? I obviously can’t prove that though.
Either way, if any party, whatever their political stances, fielded fictional candidates then that for me would be a serious matter that undermines the integrity of the whole system.
“I would argue that if one or more candidates of a particular party do not exist that does not in any way invalidate the weight of a party’s vote share in an election.”
I do not know what you mean by “weight” but in my opinion this is wrong. Non-existent candidates will materially and demonstrably affect the outcome of an election in that any votes they may garner are directly related to the amount of Short money their party may receive. In effect, they are committing fraud for financial gain.
Nobody votes for a party at an election, we vote for candidates. Your argument therefore is moot. Even a ‘paper candidate’ still exists, even if they don’t campaign. It is impossible to vote for someone who doesn’t exist & their agent as well as the electors signing their nomination papers should be considered for prosecution for fraud by false representation, or aiding & abetting it.
I seem to remember that there are rules in place to deal with the death of a candidate during an election, and that the election then has to be re-run. Can anything be inferred from that about a candidate who doesn’t exist at all?
It looks as though part of the “Short Money” calculation is £44.53 for every 200 votes cast for that party. If those votes were cast for a non-existent candidate, would that money be fraudulently obtained?
Without making any allegation against any particular party, that is an interesting question. There would be a possible issue of it being a parliamentary matter, but that defence did not work during the expenses scandal. So on the face of it, there would be scope for a fraud prosecution if sufficient intention could be shown – ie, bad faith, rather than say that party itself being misled by a “candidate”.
Knowing next to nothing about election law, I don’t know if this is somehow ruled out. But walking through the points to prove for section 2 of the Fraud Act 2006, one can envisage how a “fraud by false representation” indictment might be framed. Although the critical element would probably be making the connection between a given individual’s act (knowingly putting forward the fake candidate) and *that individual’s* intention to make a gain (ie the Short money arising from the candidate’s “existence”), rather than – as is perhaps more often the case – the dishonesty element being the linchpin. Somehow I don’t think it’d be hard to satisfy the Ivey v Genting test on this one.
It seems unnecessary to prove that the individual intended to make a gain as the Fraud Act 2006 2 (1) (b) (ii) says “to cause loss to another or to expose another to a risk of loss” and if someone or some party gets paid from public funds as a result of votes for a bogus candidate, that payment is a loss to the Treasury.
That’s why other possible offences might be less convenient to prosecute.
“Yesterday, upon the stair,
I met a man who wasn’t there!
He wasn’t there again today,
I wish, I wish he’d go away!”
While this unimaginable act clearly did not actually occur and perfectly reasonable explanations will undoubtedly be provided, or entirely properly refused,
are there any scams a Party of no particular part might engage in for monetary or personal* gain which we have not yet imagined, and if we imagine them is there anyone whose job includes looking to see if they have happened, and preventing them if they have not yet?
They’d be the Red Team in IT industry parlance, but here that colour might already be taken by a player.
* I’m assuming that political gain is fair game, and that if sufficient people stood to gain otherwise a conspiracy would be dangerously large.
I assume that the requirement for ten nominees, each registered to to vote in the constituency, was intended to prevent such occurrences.
In the case of a Phantom Candidate then those ten must also surely have committed an offence under Electoral or Criminal law?
The same must apply to the candidate’s Agent. Unless, of course, the candidate was acting as their own Agent.
I always thought that ‘losing your deposit’ was an irrecoverable loss. If your party actually gets money for every 200 people who vote for you, that’s quite a different scenario. Interesting.
Another fascinating comment that somebody posted on ‘X’ was this.
To be qualified to stand for election to Parliament, an individual must be (a) a British citizen, (b) a citizen of Ireland, or (c) an eligible citizen of the Commonwealth.
As the poster pointed out, if a candidate does not exist, they are obviously none of the above, and therefore not qualified to stand. Which begs the question, whose responsibility is it to assess a candidate’s qualification to stand – particularly as the Returning Officer is apparently expected to take the nomination at “face value”?
Gisela Stuart was a German, not a British citizen when she contested and won Birmingham Edgbaston for Labour at the 1997 General Election.
Stuart did have to become a British citizen to formally take up her seat in the House of Commons.
If I remember correctly back in the day when not all constituencies were contested on the same day in a General Election, it was not unknown for party grandees to contest more than one constituency to ensure they were returned to Parliament.
And it was only very recently that electoral law was changed so that an individual might not contest more than one seat in a General Election.
Theoretically, until the law was changed, an individual might have contested all of the seats at a General Election, assuming they could afford the deposit for each seat.
If you were a Conservative candidate and lost by a couple of hundred votes while a non-existent Reform candidate picked up more, you would have reasonable grounds to have the result voided. Those votes might have gone to you, otherwise.
But it is crazy that any respectable political party would allow any nominations to go forward in their name without thoroughly vetting the bona-fides and the political views of the nominee. They can hardly be serious if they don’t have so much as a photograph and a biography.
Of course Farage has already disowned the candidate selection process and came on board too late to be held accountable for it. How convenient. But could Reform be fined for electoral fraud? After all it is they who put forward the nominations.
“Came on board”.
No, he was throughout the owner, majority shareholder, and person with significant interest or control of the company which represents itself to be a Party.
In future, perhaps candidates could be required to deliver their registration papers in person, with their passport to prove their identity and nationality. It wouldn’t be much to ask.
My mother was a paper candidate in the past, but I can confirm she does exist, as do I.
There is one case of somebody being charged under s.65A of the Representation of the People Act 1983 after they nominated a mannequin for election – the Renee Slater case. Unfortunately this happened at a Scottish local election, and s.65A doesn’t apply to Scottish local elections; Slater should have been charged under s.65B. This caused the trial to collapse.
The Greenway-Stanley v Paterson case from 1977 involved a very underhand attempt by the returning officer for Dover to get rid of a council leader he was on bad terms with, by ruling Greenway-Stanley’s nomination invalid over the presence or absence of a hyphen in his surname. Dover council responded to the outcome of the court case by voting to dismiss the chief executive/returning officer, which IIRC led to further litigation over whether they were entitled to do that.