Gordon G

Radio BBC

Navraj Singh Ghaleigh

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SSRN Electronic Journal

The Alleged Incapacities of Mr. Sheridan

This short note examines the rules on candidate disqualification that have arisen in the context on Mr Tommy Sheridan. What are the relevant rules of electoral law, how do they apply to Mr Sheridan’s circumstances and why are they so poorly understood

Ghaleigh, Navraj-Singh

Edinburgh Research Explorer

     Edinburgh Research Explorer                                      The Alleged Incapacities of Mr SheridanCitation for published version:Ghaleigh, N-S 2011, 'The Alleged Incapacities of Mr Sheridan' Edinburgh Law Review, vol. 15, pp. 243-46.DOI: 10.3366/elr.2011.0022Digital Object Identifier (DOI):10.3366/elr.2011.0022Link:Link to publication record in Edinburgh Research ExplorerDocument Version:Publisher's PDF, also known as Version of recordPublished In:Edinburgh Law ReviewPublisher Rights Statement:© Edinburgh Law Review Trust and the Contributors. Ghaleigh, N-S. (2011), "The Alleged Incapacities of MrSheridan", in Edinburgh Law Review. 15, p. 243-46. The final publication is available athttp://www.euppublishing.com/doi/abs/10.3366/elr.2011.0022General rightsCopyright for the publications made accessible via the Edinburgh Research Explorer is retained by the author(s)and / or other copyright owners and it is a condition of accessing these publications that users recognise andabide by the legal requirements associated with these rights.Take down policyThe University of Edinburgh has made every reasonable effort to ensure that Edinburgh Research Explorercontent complies with UK legislation. If you believe that the public display of this file breaches copyright pleasecontact openaccess@ed.ac.uk providing details, and we will remove access to the work immediately andinvestigate your claim.Download date: 05. Apr. 2019The Edinburgh Law Review 15.2 (2011): 243-274Edinburgh University Press© Edinburgh Law Review Trust and the Contributorswww.eupjournals.com/elrAnalysisEdinLR Vol 15 pp 243-246DOI: 10.3366/elr.2011.0022The Alleged Incapacities of Mr SheridanOn 26 January 2011 the former Scottish Socialist Party MSP Tommy Sheridan wassentenced to three years’ imprisonment for perjury.1 As a consequence was MrSheridan disqualified from membership of Parliament by virtue of his conviction,or by virtue of his imprisonment? Or neither? If disqualified, for how long? Andfrom which Parliament? Was there any prospect of his being a candidate in the 2011Scottish Parliament elections, due to take place a matter of months after sentencing?In attempting to answer such questions the BBC reported that as a consequenceof his conviction Sheridan “won’t be able to stand for the Scottish Parliament again”2whilst The Guardian claimed that “Sheridan’s conviction means that he will be unableto stand again for parliament”.3 Neither statement is correct and after (though notnecessarily because of) emails from this author, the BBC withdrew the claim fromsubsequent broadcasts and The Guardian website’s “article history” shows that asimilar modification was made to their story. What then are the relevant rules ofelectoral law, how do they apply to Mr Sheridan’s circumstances and why are theyso poorly understood?A. THE RULESAssuming no incapacity based on age or nationality,4 the starting point fordetermining whether an individual lacks capacity to stand as a candidate at anelection is the House of Commons Disqualification Act 1975. As is well known,this provides for the disqualification of certain serving public officials – judges, civilservants, members of the police and armed forces, etc5 – from membership of theCommons and, by virtue of the Scotland Act 1998, the Scottish Parliament.6 Clearly1 For the sentencing statement of Lord Bracadale, presiding, see http://www.scotland-judiciary.org.uk/8/709/HMA-v-THOMAS-SHERIDAN.2 BBC Radio 4, The World At One, 26 Jan 2011.3 “Tommy Sheridan sentenced to three years in prison”, The Guardian 26 Jan 2011.4 Electoral Administration Act 2006 Part 5.5 The “disqualifying offices” listed in Schedule 1 of the Act are regularly amended by Order in Council.6 “A person is disqualified from being a member of the [Scottish] Parliament if . . . he is disqualified . . .from being a member of the House of Commons or from sitting and voting in it.” Scotland Act 1998 s15(1)(b).243244 the edinburgh law review Vol 15 2011however, none of these disqualifications would apply to Mr Sheridan. We must lookelsewhere to determine his alleged incapacity.Further light may be thrown on the matter by reference to the great consolidatingmeasure of UK electoral law, the Representation of the People Act 1983.7 Inreproducing the electoral offences first introduced by the Corrupt and IllegalPractices Act 1883, it provides for a further category of the disqualified – thoseconvicted of “corrupt or illegal practices”. Corrupt practices are intentional crimessuch as personation,8 bribery,9 treating10 and unduly influencing others in the mannerof their voting11 whilst illegal practices do not require mens rea and include votingillegally,12 false statements as to candidates,13 disrupting election meetings14 andillegal practices in relation to election expenses.15 As arcane and diverse as this listmay be, it does not include the offence of perjury. The plain and ordinary meaning of“corrupt or illegal practices” is trumped by the statute’s use of it as a term of art. Assuch Mr Sheridan suffers no incapacity under the 1983 Act, though were he so to doit would extend up to ten years.16Oddly, it is neither the general law pertaining to MPs or elections that determinesin the first instance whether Mr Sheridan has capacity to stand in the forthcomingScottish Parliament elections. Instead one of the more ad hoc and ad hominem ofstatutes determines his near-term fate – the Representation of the People Act 1981.The briefest of Acts, this was the UK state’s response to the successful electionof the Irish Republican prisoner, Bobby Sands, to the seat of Fermanagh andSouth Tyrone at a by-election in 1981 on an extraordinary turnout of 86.9%. Anoutraged Westminster Parliament legislated with great speed to the effect that a“person found guilty of one or more offences . . . and sentenced or ordered to beimprisoned or detained indefinitely or for more than one year, shall be disqualifiedfor membership of the House of Commons while detained anywhere in the BritishIslands”.177 “The Representation of the People Act 1983 consolidates the Representation of the People Act 1949and various enactments amending it. That Act of 1949 was itself a consolidation of earlier legislation.A consolidation cannot alter the substance of the earlier law. Accordingly much of the 1983 Act derivesfrom legislation enacted in the nineteenth century.” R J Clayton (ed), Parker’s Law and Conduct ofElections, 2nd edn (1996) volume 1, paragraph 1.2.8 Representation of the People Act 1983 s 60.9 s 113.10 s 114. Treating consists of providing “any meat, drink [or] entertainment” to others for the purpose ofinfluencing their vote.11 s 115.12 s 61.13 s 106. For a recent and rare determination of an election being void following in breach of this provision,seeWatkins v Woolas [2010] EWHC 2702 (QB).14 s 92.15 s 73(6).16 s 159. The Election Court in Watkins v Woolas disqualified Mr Woolas for three years, a decisionupheld on appeal: [2010] EWHC 3169 (Admin).17 Representation of the People Act 1981 s 1. See also the discussion in B Dickson, The EuropeanConvention on Human Rights and the Conflict in Northern Ireland (2010) 308-309.Vol 15 2011 analysis 245This then is a basis on which Sheridan will likely be excluded from standing inthe Scottish Parliament elections of 2011. Having been sentenced for three yearsimprisonment and even taking account of the possibility of early release, Mr Sheridanwill be disqualified from standing for parliamentary election (Holyrood included)18until release. This does not of course guarantee Sheridan’s exclusion from the FourthScottish Parliament – a by-election after his release could provide the necessaryopportunity – but at present, the effect of disqualification would be to void anynomination of him as a member of the House whilst imprisoned.19There remains though a further ground for incapacity that, at the time of writing,very much hangs above Sheridan’s head – that relating to bankruptcy. The Sheridantrial was prompted by the News of the World newspaper alleging certain detailsabout Mr Sheridan’s private life. This led him to raise an action for defamationagainst the newspaper which, whilst initially successful, is at present being appealed.If successful, the News of the World will seek to recover its expenses. It is unclearwhether Mr Sheridan would have the funds to meet what is certain to be a six figureclaim, a likely consequence of which would be his sequestration. In that event a shiftto electoral law’s interstice with the law of insolvency is necessary. The Enterprise Act2002 amended the Insolvency Act 1986 such that “[w]here a court in . . . Scotlandawards sequestration of an individual’s estate, the individual is disqualified . . . forbeing elected to, or sitting or voting in, the House of Commons”.20 As this provisionhas parallel effect for the Scottish Parliament,21 there is the very real possibility ofMr Sheridan being disqualified in the event of an adverse expenses order arisingfrom the initial defamation action leading to his sequestration. The irony of thelaw of capitalism determining the law of democracy would not be one lost on MrSheridan. Any such disqualification would commence at the date of sequestrationand expire at its discharge, which in the ordinary run of affairs would be after oneyear.22 The exact timing of that sequence is at present unclear as Mr Sheridan’sappeal against the perjury conviction has sisted the News of the World’s own appealagainst the original defamation decision, thereby delaying any sequestration for anindeterminate period.B. CONCLUSIONThis brief tour of the highways and byways of electoral law leads to the obvious pointthat this is a highly fragmented body of law. That may be a matter of little concern tothat discrete and expert community of electoral lawyers and officials but the obscurity18 (n.6).19 Representation of the People Act 1981 s 2. In the original case, the 1981 Act had the effect of barringSands’ fellow ‘dirty protesters’ from standing in the by-election that followed his hunger-strike-induceddeath twenty six days after his own election to the Commons.20 Insolvency Act 1986 s 427.21 (n.6).22 Section 1 of the Bankruptcy and Diligence etc (Scotland) Act 2007 amends s 54(1) of the Bankruptcy(Scotland) Act 1985 by reducing the period of automatic discharge of the debtor from three years toone.246 the edinburgh law review Vol 15 2011of the regime has implications for the media’s and therefore the electorate’s ability tocomprehend a body of law that is eo ipso of central public concern. Current electorallaw resembles the state of its cousin, party finance law, prior its modernisationand systematisation in the form of the Political Parties Elections and ReferendumsAct 2000. Whatever that measure’s other substantive merits it has lent a degree ofcoherence and clarity to the law of party funding. Increased media and perhaps evenpopular understanding of the general principles has followed. Would that the samecould be said of electoral law. It is not an insignificant paradox that the law governingthe electorate’s choice of its representatives is almost entirely unknown to it, andpractically unknowable.Navraj Singh GhaleighUniversity of Edinburgh(The author thanks the blogger, Lallands Peat Worrier – http://lallandspeatworrier.blogspot.com/ – for the enquiry that prompted this note.)

The Alleged Incapacities of Mr Sheridan

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The Alleged Incapacities of Mr Sheridan

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