Vented ministers from sitting, and the uk Constitution would have

had a strict separation of powers. This part of the Act was repealed

by the Succession to the Crown Act 1707. However, there are limits

upon the number of ministers who can be members of the Com-

mons, thus giving the Commons a degree of independence. These are

as follows:

(i) Under the House of Commons (Disqualification) Act 1975 not

more than 95 ministers may sit and vote.

(ii) The Ministerial and Other Salaries Act 1975 (as amended) fixed

the salaries of the various grades of minister, and limits the num-

ber of paid ministers of the government to 83 plus about 30 other

specialised political office-holders such as whips; and also four

Law Officers. However, a government can increase its loyalists in

the House by appointing unpaid parliamentary secretaries.

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The Composition of Parliament and Parliamentary Elections

(iii) The House of Commons Disqualification Act 1975 debars certain

other holders of public office from sitting in the Commons. The

main examples are as follows:

. full-time judges of various kinds;

. regulators of privatised utilities;

. civil servants;

. members of the regular armed services and police (other than

specialised forces such as railway police);

. members of foreign legislatures. However, by virtue of the Dis-

qualification Act 2000, a member of the Irish legislature (the

Oireachtas) can be a member of the Commons;

. members of certain public boards and undertakings;

. holders of the offices of Steward or Bailiff of the Chiltern Hun-

dreds or of the Manor of Northstead. These are meaningless

titles in the gift of the Chancellor of the Exchequer. There are

no specific rules entitling MPs to resign or retire but a success-

ful application for one of these offices has the same effect.

In the event of a dispute about a disqualification the Judicial

Committee of the Privy Council may make a declaration on the

application of any person (s. 7). The House may also refer a matter to

the Privy Council for an opinion (Judicial Committee Act 1833 s. 4).

The House has the statutory power to disregard a disqualification if it

has been subsequently removed (for example, by the MP resigning

from a disqualifying post (s. 6 (2))).

11.4 The Electoral System

11.4.1 The purpose of elections

There is a divergence between the theory of the electoral process and

practical politics. The theoretical basis of democracy in the United

Kingdom is that the electorate chooses the legislature as an assembly

of representatives for each local community. The legislature in turn

chooses the executive. In reality the party political system encourages

voters to vote essentially for an executive. Coupled with the prime

minister’s conventional right to dissolve Parliament, this means that

effectively the executive controls and legitimates the legislature. Dicey,

however, believed that a ‘parliamentary executive must by the law of

its nature follow, or tend to follow, the lead of Parliament’ (1915,

p. 484). We can assess the electoral system only in relation to its aims.

246 General Principles of Constitutional and Administrative Law

Is it (a) to secure democratic local representation; or (b) to produce

effective government; or (c) to produce ‘accountable’ governments?

No electoral system has yet been thought up that successfully com-

bines all of these aims.

The European Convention on Human Rights (First Protocol Art. 3)

requires ‘free elections, at reasonable intervals by secret ballot, under

conditions which will ensure the free expression of the people in the

choice of the legislature’ but does not confer any specific right to vote.

This does not require any particular kind of voting system or method

of electoral boundaries, thus endorsing the principle that elections may

have different aims. An electoral system must not discriminate against

particular groups of citizens although a particular political party can-

not apparently challenge the electoral system on the basis that it is

at a disadvantage (see Lindsey v. UK (1979); Mathieu-Mohin v. Belgium

(1987); Liberal Party v. UK (1980)). The courts are likely to adopt a low

level of review in relation to electoral machinery because of sensitivity

to the separation of powers.

Election law is found primarily in the Representation of the People

Act 1983 and the Parliamentary Constituencies Act 1986. Impor-

tant changes were made by the Representation of the People Act 2000

and the Political Parties, Elections and Referendums Act 2000. This

chapter will assume that the relevant provisions of the Act are in force.

11.4.2 The Electoral Commission

The Electoral Commission was a response to the concerns of the Fifth

Report of the Committee on Standards in Public Life (Cmnd. 4057,

1998) relating to the financing of political parties. It was created by the

Political Parties, Elections and Referendums Act 2000 with a wide-

ranging remit to supervise the conduct of elections and the financial

affairs of political parties thereby bringing what had previously been

regarded as private concerns into the open. The Commission registers

political parties and keeps records of their accounts and of donations

to them. It reports and advises upon the conduct of elections and

referendums and provides for public access to information relating to

the financial affairs of political parties. It is empowered to facilitate

public education relating to current electoral systems in the UK and

the European Union. The Electoral Commission will also take over

the functions of the Boundary Commissions (below) in relation to par-

liamentary and local government constituencies. Finally the Electoral

Commission is empowered to arrange schemes for alternative methods

of voting such as for example making voting facilities available in

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The Composition of Parliament and Parliamentary Elections

shops or exrtending voting times. This applies at present only to local

government elections where some pilot schemes have already been

tried out (see www.norwich.gov.uk).

The Electoral Commission is appointed by the Queen on an Address

from the House of Commons which must have the support of the

Speaker after consultation with the party leaders (s. 3). Its members

must not be members, officers or employees of political parties or

holders of elective office. Nor must they have had such connections

or been registered party donors (below) within the last 10 years (s. 3 (4)).

The Electoral Commission is supplemented by an advisory Speaker’s

Committee which comprises relevant ministers and back-bench MPs

(s. 2) and an advisory Parliamentary Parties Panel comprising persons

appointed by the parties who must include at least two MPs (s. 4).

11.4.3 General elections and by-elections

A general election must be held after a new Parliament has been

summoned by royal proclamation. Writs are sent from the Crown

to designated returning officers in each constituency. The returning

officers are responsible for the election, but registration officers, who are

normally local authority chief executives, make the detailed arrange-

ments. There are detailed rules for designating returning officers, but

where a constituency is a whole county or a whole district the return-

ing officer is the sheriff of the county or the chairman of the district

council (s. 24 (1)). In England this is one of the few remaining duties of

the sheriff, who prior to Tudor times was the representative of the

Crown in local areas. A by-election takes place when there is an

individual vacancy in the House. The House itself decides whether to

fill the vacancy, and by convention the motion is proposed by the

party to which the former member belonged. Unfortunately there is no

time limit for this. When the House is not sitting the Speaker can issue

the writ (Recess Elections Act 1975).

11.4.4 Candidates

Subject to the disqualifications above anyone can stand for Parliament

who can provide a deposit of £500 (to be forfeit if one-twentieth of the

total vote is not won), and is supported by 10 signatures (Representa-

tion of the People Act 1983 Sched. 1). However, no one can be nomi-

nated unless their nomination paper states either that they stand in the

name of a qualifying registered party under Part II of the Political

Parties, Elections and Referendums Act 2000 or that they do not

248 General Principles of Constitutional and Administrative Law

purport to represent any party (s. 22). The latter applies to candidates

standing either as independents, or the Speaker seeking re-election or

if the nomination paper provides no description. For the purposes of

the Act a political party is any organisation or person that puts up

candidates for electoral office (s. 40). There can therefore be a one-

person party.

Each political party must be registered with the Electoral Commis-

sion. In order to qualify for registration the party must provide its

name, its headquarters address and the names of its leader, treasurer

and nominating officer although these can be the same person. It can

also provide the name of its campaign officer and if it does so the

campaign officer will have some of the responsibilities of the treasurer

(s. 25). It must also have a scheme approved by the Commission for

regulating its financial affairs. The Commission can refuse to register

a party on the following grounds: duplication of or confusion with

existing names, names having more than six words, names being

obscene or offensive or where publication would be an offence, names