Thursday Law Report: MP was entitled to resume her seat

13 May 1999

Attorney General v Jones

Queen's Bench Division, Divisonal Court (Lord Justice Kennedy and Mr Justice Mitchell) 30 April 1999

A MEMBER of Parliament convicted in a criminal court of malpractice was entitled to resume his or her seat following a successful appeal against conviction if the seat had remained vacant.

The Attorney General, representing the Speaker and the authorities of the House of Commons, sought by way of originating summons the determination of the court on the question whether, the defendant having been duly elected to Parliament as member for Newark on 1 May 1997 and having been convicted of making a false declaration in connection with her election expenses contrary to section 82(6) of the Representation of the People Act 1983 on 19 March 1999, she was entitled, following the quashing of that conviction on 15 April 1999, no writ having been moved for a by-election in her seat, to resume that seat in Parliament.

Roy Amlot QC and Gavin Millar (Steele Shamash) for the defendant; Philip Sales (Treasury Solicitor) for the Attorney General.

Lord Justice Kennedy said that originally allegations of malpractice such as the offence now set out in section 82(6) of the 1983 Act were matters for the House of Commons, not for the courts, but over the last century Parliament had given the criminal courts jurisdiction in relation to allegations of corruption.

If an allegation of corruption was made the matter could now be considered by an election court established under the Act to which a parliamentary election petition was referred by the High Court; by the High Court itself if the case raised by the petition could conveniently be stated as a special case; or by a criminal court, as had happened in the present case.

The approach to the statute which counsel for the Attorney General had invited the court to adopt was that, when there was a conviction, so that section 173(a) of the Act operated to make the candidate "subject to the incapacities imposed by section 160(4)", those words triggered the whole of section 160(4). Thus for the time specified in the section the candidate was incapable of being elected to and sitting in the House of Commons and, if already elected, the candidate should vacate the seat from the date of conviction.

The vacation of the seat was, however, merely a machinery, a consequence of the conviction. If the conviction was overturned capacity to sit was restored, and the seat, if not already filled, ceased to be vacant. It was noteworthy that whereas the adverse report of an election court would, in many if not all cases, render an election void a conviction did not have that effect.

Justice required that when a conviction was set aside on appeal all penalties imposed at the time of the conviction should also, so far as possible, be set aside. It would require very clear statutory language to suggest otherwise and that was not to be found in section 160(4) or elsewhere in the 1983 Act.

Where there was a conviction of the type with which the present case was concerned there was not only a need to do justice to the individual but also to the electors she represented, and a need if possible to avoid the trauma and expense of a fresh election if there was no justification for that course.

The preferred approach gave rise to no difficulty even if a writ had been issued before an appeal was heard. If there had been no return to the election writ the successful appellant could simply resume his or her seat, and a warrant of supersedeas could be issued to withdraw the writ. If there had been a return to the writ then, when the appeal succeeded, there would be no vacant seat for the appellant to occupy, the appellant's former seat having been properly filled by someone else.

The situation which might arise if a member were convicted of corruption in relation to a seat other than his own did not cast any doubt upon the approach which the court considered to be correct. Accordingly the question posed would be answered in the affirmative.