Sanders and Another v Chichester and Another  November 11 (QBD)
DYSON J : We have to decide certain preliminary questions in an election petition stated by way of special case which arises out of the European Parliamentary Election for Devon and East Plymouth Constituency held on 9 June 1994. The constituency comprises 7 parliamentary constituencies, and an electorate of some 527,000. On 4 May 1994 the Second Respondent published Notice of the Election requiring nomination papers to be delivered by 4pm on 12 May 1994. On 11 May, the nomination paper of the First Petitioner with the description "Liberal Democrat" was delivered to the Deputy Acting Returning Officer, Elizabeth Tucker ("Mrs Tucker"). At approximately noon on 12 May, Mr Huggett delivered to Mrs Tucker his nomination paper with the description "Literal Democrat". Mrs Tucker held Mr Huggett's nomination paper to be valid because it was good in form and complied with the rules. On 12 May 1994, the Second Respondent published the Statement as to Persons Nominated and Notice of Poll, which included Mr Huggett with the description "Literal Democrat".
On 20 May, Sedley J refused the First Petitioner leave to apply for judicial review of the Second Respondent's decision that Mr Huggett's nomination paper was valid. He held that his jurisdiction was ousted by r 12(5) of Parliamentary Election Rules ("the Rules") in the Representation of the People Act 1983.... The basis of the application was that the description "Literal Democrat" in Mr Huggett's nomination paper was intended to confuse and mislead electors.
The ballot paper showed 8 candidates. The full names (in alphabetical order) and address of each candidate was given, as was his or her chosen description. On 13 June after a recount, the Second Respondent declared the First Respondent to be duly elected, and the number of votes recorded for each candidate to be as follows:
Chichester, Giles Conservative 74,953
Everard, John Independent 2,629
Edwards, Paul Green Party 11,172
Gilroy, Linda Labour 47,596
Huggett, Richard Literal Democrat 10,203
Morrish, David Liberal 14,621
Pringle, Andrew Natural Law Party 908
Sanders, Adrian Liberal Democrat 74,253
The descriptions given in the second column were those given in the nomination papers and which appeared on the ballot papers.
On 27 July 1994 we ordered by consent that the following preliminary questions be tried on a case stated:
(1) Whether the particulars of the candidate, Richard John Huggett ("Mr Huggett"), at the European Parliamentary Election for the Devon and East Plymouth Constituency ('the election") on his nomination paper were "not as required by law" within the meaning of Rule 12(2)(a) of the Parliamentary Election Rules ("the Rules") in Schedule 1 of the Representation of the Peoples Act 1983 ("the 1983 Act"), (as applied by the European Parliamentary Regulations 1986, Regulation 5 (1) and Schedule 1), on the basis that his description as "Literal Democrat" did not satisfy the requirements of r 6(3) of the Rules, namely that this description, together with his other particulars on the nomination paper, should be sufficient to identify him.
(2) Whether under r 12 of the Rules, and s 23(2) of the 1983 Act, and/or case law, 2 Respondent had a duty:
(i) to examine all nomination papers delivered to him in relation to the Election and decide whether the candidates named therein had been validly and lawfully nominated; and
(ii) if he decided that the particulars of any candidates were "not as required by law" within the meaning of r 12(2)(a) of the Rules, or were otherwise unlawful, to hold the nomination papers to be invalid; irrespective or whether or not objections were made of the relevant nomination paper.
Relevant Statutory Provisions.
The 1983 Act, as applied by European Parliamentary Election Regulations 1986 (as amended) contains the following provisions:
Section 23. Rules for parliamentary elections. ...
UNomination of Candidates
6.(1) Each candidate shall be nominated by a separate nomination paper in the form in the Appendix delivered -
(a) by the candidate himself, or
(b) by his proposer or seconder, to the returning officer at the place fixed for the purpose, but the paper may be so delivered on the candidate's behalf by his election agent if the agent's name and address have been previously given to the returning officer as required by s 67 of this Act or are so given at the time the paper is delivered.
(2) The nomination paper shall state the candidate's -
(a) full names
(b) home address in full, and
(c) if desired, description.
and the surname shall be placed first in the list of his names.
(3) The description, if any, shall not exceed 6 words in length, and need not refer to his rank, profession or calling so long as, with the candidate's other particulars, it is sufficient to identify him.
UDecisions as to the validity of nomination papers.
12.(1) Where a nomination paper and the candidate's consent to it are delivered and a deposit is made in accordance with these rules, the candidate shall be deemed to stand nominated unless and until -
(a) the returning officer decides that the nomination paper is invalid; or
(b) proof is given to the returning officer's satisfaction of the candidate's death; or
(c) the candidate withdraws.
(2) The returning officer is entitled to hold a nomination paper invalid only on one of the following grounds -
(a) that the particulars of the candidate or the persons subscribing the paper are not as required by law;
(b) that the paper is not subscribed as so required; and
(c) that the candidate is disqualified by the Representation of the People Act 1981 (which applies in respect of the office of representative to the European Parliament by virtue of para 5(1)(a) of Sch 1 to the Act of 1978).
(3) the returning officer shall give his decision on any objection to a nomination paper as soon as practicable after it is made.
(4) Where he decides that a nomination paper is invalid, he shall endorse and sign on the paper the fact and the reasons for his decision.
(5) The returning officer's decision that a nomination paper is valid shall be final and shall not be questioned in any proceeding whatsoever.
(6) Subject to paragraph (5) above nothing in this rule prevents the validity of a nomination being questioned on an election petition...
The First Question.
Mr Beloff submits that the particulars of Mr Huggett were "not as required by law" within the meaning of r 12(2)(a) of the Rules, on the basis that his description as "Literal Democrat" together with his other particulars on the nomination paper were not sufficient to identify him as required by r 6(3). He adopts the Oxford English Dictionary definition of "identify" as "ascertain or establish who...a given person is", and says that the act of identifying a person as A necessarily involves identifying him as someone other than B The purpose of requiring that the particulars must be sufficient to identify a candidate is to enable voters to select the candidate for whom they wish to vote. Particulars which confuse candidate A with candidate B as opposed to distinguishing the two candidates, are not sufficient to identify either of them. Viewed objectively, the description of Mr Huggett as "Literal Democrat" was confusing because it was likely to lead voters to believe that he was a Liberal Democrat, and probably the officially adopted Liberal Democrat party candidate. In practice voters were likely to be misled into voting for Mr Huggett, when they intended to vote for Mr Sanders.
It can be seen at once that the confusion for which Mr Beloff contends derives not from a consideration of Mr Huggett's nomination paper alone, but from an examination of that nomination paper and at least one other nomination paper. We say "at least one other nomination paper", because Mr Beloff has concentrated his argument on a comparison of the nomination papers of Mr Huggett and Mr Sanders. But if it is arguable that Mr Huggett's description of himself as "Literal Democrat" was potentially confusing with Mr Sanders' description of himself as a Liberal Democrat, it may also be argued that the descriptions of both were confusing or potentially confusing with that of Mr Morrish, who described himself as "The Liberal Party Candidate".
Mr Beloff draws attention to the fact that Mr Huggett's name comes earlier on the ballot paper than that of Mr Sanders, and submits that it must have been obvious to Mrs Tucker that some electors would put their cross against Mr Huggett's name without travelling further down the paper, mistakenly believing that they were voting for the official Liberal Democrat candidate. In effect, therefore, the confusion relied on is the mistaken belief that the description of Mr Huggett was as a Liberal Democrat, not as a Literal Democrat. Mr Beloff makes the point that the description "Literal Democrat" imitated the description "Liberal Democrat" in all but a single letter of a single word; out of 15 letters, one consonant had been changed; that consonant was in the middle, not at the end of the word; the only difference was the letter "t" instead of "b"; both letters were ascending; and both letters were similar in shape.
The true construction of r 6(3).
(1) The effect of r 6(2) and (3) is that the full names and home address are treated as being sufficient to identify the candidate. Only they are mandatory. This is fundamental. Mr Beloff makes the common sense point that voters in large constituencies in a modern democracy cannot be expected to vote for a name and address with which they are unfamiliar and that very few candidates are known to the electorate by name, still less by their address. The fact is, however, that the only minimum requirements for identification of a candidate on the nomination paper and thus on the ballot paper are his or her full names and home address. The description is optional. It follows that Parliament decided that the ballot paper is not the necessary medium for communicating to the electorate information about the attributes of the candidate, for example his age, political and other experience, political allegiance and so on. Parliament clearly thought that such information could and would be made available by other means during the election campaigns. The Rules do, however, prescribe that the description, if given, must with the candidate's other particulars (ie his full names and home address) be sufficient to identify him. The requirement that the optional description, when read with the candidate's full names and home address, shall be sufficient to identify him, implies that the full name and home address alone will always be regarded as sufficient to identify the candidate for the purposes of the Rules. This has been so since the passing of the Representation of the People Act 1969 (the "1969 Act"). Rule 7 (2) and (3) of the Second Schedule of the 1969 Act is in substantially the same terms as r 6(2) and (3) of the 1983 Rules. It was not, however, always so. The Parliamentary and Municipal Elections Act 1872 (by r 6 of 1 Schedule), the Representation of the People Act 1948 (by para 2(2) of the Third Schedule) and the Representation of the People Act 1949 (by para 7(2) of the Second Schedule) all required a candidate to give a description which went beyond giving his full names and address. Mr Beloff submits that it is "unreal" that Parliament should in 1969 for the first time have enacted that it was unnecessary to include a description in order to identify a candidate. It may be surprising to some that Parliament should have taken this step, but that it did so is in our opinion incontestable.
Since the 1969 Act, therefore, Parliament has not been troubled by matters such as the possibility (fanciful, no doubt) that there may be more than one candidate with the same full name living at the same address. It might be assumed that in such an event, one or more of the candidates would give a description which, with his full names and address, would be sufficient to identify him.
(2) The requirement in r 6(3) that the description, with the candidate's other particulars, shall be sufficient to identify him recognises the possibility that the description could remove what would otherwise be the sufficiency of the identification given by those other particulars. There are only two requirements of a description. First, it must not exceed six words in length. Secondly, it must together with the candidate's other particulars be sufficient to identify him. There is no requirement that the description be true, fair or not confusing, so long as with the other particulars, it is sufficient to identify the candidate.
(3) If it appears to the returning officer inter alia that the description, with the candidate's other particulars, is not sufficient to identify him, the returning officer is entitled, and indeed bound to hold a nomination paper invalid under r 12(2)(a), on the grounds that the particulars are not "as required by law". The returning officer is given no express power to investigate the validity of the description. Mr Beloff submits that there must be an ancillary power given to the returning officer, and a corresponding duty imposed upon him to examine the nomination paper in question and compare it with any other relevant information; and if necessary, in a case where a rival candidate asserts the same or similar description, to make enquiries of the candidates and their election agents to decide which candidate has the better claim to such a description where the returning officer has judged it to be confusing and insufficient to distinguish one candidate from another. We shall return to this argument later in this judgment. At this stage, we merely point out that if these powers exist under Rules, they must be implied.
With these descriptions in mind, we now turn to deal with Mr Beloff's argument. In the language of the Rules, the word "description" is something other than the full names and home address of candidate. It could be said as a matter of ordinary language that the candidate's full name and home address are part of his description. Rule 6 of the First Schedule of the 1872 Act treated the name and address of the candidate as part of his description. It is plain in our view that even if a person's description is regarded as something other than his name and address, it is capable of assisting in the identification of him. Suppose father and son, both living at the same address and bearing the same names, stand as candidates in an election. The only way in which they can be separately identified on paper is by some description. Accordingly, we accept that as a matter of fact a description may be necessary to provide sufficiency of identification. As we have already said, however, in enacting the Rules, Parliament did not see the necessity for description. Parliament decided that full names and address were sufficient to identify the candidate. Accordingly, the emphasis was entirely on the person and not the attributes of the candidate. The purpose of r 6(2) is to identify the candidate qua individual. The fact that some voters may be confused by a candidate's chosen words of description is irrelevant for the purpose of the Act and Rules, unless these words have obscured the identification given to the candidate by his full names and address. As Mr Straker submits, it is the names and address of the candidate that are of paramount importance in giving the candidate a sufficiency of identity: that is why compliance with the r 6(2)(c) is optional.
A question that arose in the course of argument was whether in the context of this case, Mr Huggett's description of himself as a "Literal Democrat" was more confusing than the description "Liberal Democrat" would have been. Mr Beloff submitted that it was, ie that using the language of r 6(3), the description "Literal Democrat" destroyed the sufficiency of the identification provided by his names and home address more comprehensively than the description "Liberal Democrat" would have done. The reason given by Mr Beloff was that it must have been obvious that Mr Huggett was using the description "Literal Democrat" deliberately in order to confuse the voters and mislead them into voting for him rather than Mr Sanders. In other words it was a spoiling tactic. Let us suppose that it was obvious that the choice of the description "Literal Democrat" was a spoiling tactic. We do not see how this renders that description more likely to confuse than the description "Liberal Democrat". The answer to the question whether the description with the names and address would be sufficient to identify Mr Huggett does not depend on the motive for the choice of description, but only on its effect. In any event, we do not see how, if Mr Huggett had chosen to describe himself as "Liberal Democrat", Mrs Tucker could have determined simply from examination of his nomination paper whether Mr Huggett was seeking to confuse the electorate as a spoiling tactic, or was genuinely describing himself as a supporter of the Liberal Democrat party. If a comparison is to be made between the potential confusion of the spoiler who describes himself as "Literal Democrat" and the spoiler who describes himself as "Liberal Democrat", surely the latter is more likely to confuse. It is reasonable to assume that most voters will read to the end of the ballot paper. Those wishing to vote for the Liberal Democrat party candidate, and who read to the end of the ballot paper are more likely to vote for Mr Sanders if Mr Huggett describes himself as "Literal Democrat" than if he describes himself "Liberal Democrat". ....
We accept that if on 12 May 1994, Mrs Tucker had addressed her mind to the point, she might well have thought that some voters would be confused by Mr Huggett's description of himself as "Literal Democrat". She would probably have thought that some voters would wonder whether "Literal" was a misprint for "Liberal", and that some might think that he was the official Liberal Democrat party candidate. It is a moot point how much intelligence and care the returning officer should impute to the electorate when they exercise their right to vote. There is room for a significant difference of view. Some will say that it is an insult to the intelligence of the electorate to assume that voters will not be able or willing to read the ballot paper carefully before casting their votes. Others will say that it is unrealistic to suppose that all voters will read the ballot paper carefully. We do not have to express a view on this subject. We have no doubt that even if it was or ought to have been apparent to the returning officer that some voters might be or were likely to be confused by Mr Huggett's description, the description did not remove the sufficiency of the identification of him given by his full names and home address. The description did not cast any doubt on the fact that Mr Huggett was who he said he was, namely Richard John Huggett and that he lived at the home address that he gave. The most that the description did was potentially to mislead some voters into thinking that he had some attribute which was exclusive to Mr Sanders, namely that he was the official Liberal Democrat party candidate.
Accordingly, the answer to the first question is that Mr Huggett's description did satisfy the requirements of r 6(3) of the Rules.
The powers and duties of the returning officer under the 1983 Act.
It will be necessary to consider the powers and duties of the returning officer when we deal with the second question. It is instructive, however, to test Mr Beloff's construction of r 6(3) by considering what Mrs Tucker could and should have done in a case such as the present case. We consider this issue first in relation to the Rules, and secondly in relation to s 23(2) of the 1983 Act.
(i) Under the Rules. In our view the Rules do not empower the returning officer to carry out the investigations of the kind suggested by Mr Beloff. In order to illustrate the point, we shall take the following example. Suppose three candidates describe themselves as "Liberal Democrat". Candidate A, whose nomination paper is the first to be delivered to the returning officer, is a member of the Liberal Democrat party, and was the previous officially adopted candidate. Candidate B, whose nomination paper is delivered next, is not a member of the Liberal Democrat party at all, but regards himself as both liberal and democratic. Candidate C, whose nomination paper is delivered very shortly before 4pm on the last day for delivery, is the officially adopted candidate of the Liberal Democrat party. If Mr Beloff's construction is correct, the description of candidate A would not be in breach of r 6(3) at the time of delivery of his own nomination paper. At most, it would be a description which was contingently or potentially confusing. We pause to observe that it is a strange notion that the description of candidate A, which taken with his full names and address is sufficient to identify him when it is given, should later cease to be sufficient to identify him because of a subsequent event for which he is not responsible, namely the delivery by another candidate of that candidate's nomination paper. When the nomination papers of candidates B and C are delivered, what does Mr Beloff say the returning officer can and should do? He says that the returning officer should look at the nomination papers of the candidates, and conduct a simple investigation to enable him to decide which candidate has the best claim to the description. Having identified that candidate, he should indicate to the others that unless they change their descriptions so that they cease to confuse, he will hold their nomination papers to be invalid. Mr Beloff accepts that the Rules do not empower the returning officer to conduct difficult investigations of the underlying facts or to make judgments of a politically sensitive nature. It is his case, however, that in the example under consideration the returning officer would have the power to carry out limited enquiries sufficient to enable him to decide which candidate has had the best claim to the description.
In our judgment, the returning officer has no such power, and can therefore have no such duty. ....
In our judgment, upon the true construction of r 12(2)(a) the returning officer is not entitled, when considering whether to hold a nomination paper invalid, to investigate the facts underlying the name, address or description of the candidate. The decision has to be taken by simply looking at the nomination paper of the candidate in question alone. ......
Our task has been to analyse the statutory provisions governing the conduct of elections. For the reasons that we have set out at some length, it is clear to us that contrary to what might be thought to be the popular view, Parliament has focused on certain minimum criteria for identifying candidates which do not include references to political parties, it being assumed that voters will learn all they need to know about the candidates during the election campaigns. It is also clear that the Rules do not prohibit candidates, (whether out of spite or a wicked sense of fun,) from describing themselves in a confusing way or indulging in spoiling tactics. As we have seen, Parliament considered these very matters at length and in detail during the debates on the Representation of the People Bill in December 1968. Parliament was so anxious to avoid returning officers becoming involved in what might be called "political controversy" that, as the Home Secretary said, it was prepared to take a risk that occasionally there would be misleading and confusing descriptions. It is not for us to say whether that political judgment of Parliament was wise. In other jurisdictions, such as New Zealand, the Commonwealth of Australia, the State of Queensland and the Republic of South Africa, a wholly different course has been adopted involving Electoral Commissions, a system of registration of political parties and a statutory provision limiting the ability of candidates to use the name of a political party. It may be in the light of the present case that Parliament will wish to consider again whether a similar regime should be adopted for the conduct of elections in the United Kingdom.