England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ELECTION COURT)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE SEDLEY)

		Royal Courts of Justice Strand London WC2
		11th November 1994

MR JUSTICE DYSON: This is the Judgment of the Court.

Introduction.

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 1983 Act") Sch 1, applied by the European Parliamentary Election Regulations 1986, reg 5 (1) and Sch 1. 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 Bryan.	The Conservative Party Candidate	74,953
Sanders, Adrian Mark.	Liberal Democrat Party Candidate.	74,253.
Gilroy, Linda Wade.	The Labour Party Candidate	47,596.
Morrish, David John.	The Liberal Party Candidate	14,621.
Edwards, Paul Anthony.	Green Party Candidate	11,172.
Huggett, Richard John.	Literal Democrat Party Candidate	10,203
Everard, John Algernon.	Independent Party Candidate	2,629
Pringle, Andrew James.	Natural Law Party Candidate	908

The descriptions given in the second column were those given in the nomination papers and which appeared on the ballot papers.

The Preliminary Questions.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.

(3) Whether 2 Respondent was in breach of his duty under r 12(2) of the Rules and s 23(2) of the 1983 Act, and/or case law, in failing to hold the nomination papers of Mr Huggett to be invalid.

(4) Whether the decision of 2 Respondent that the nomination paper of Mr Huggett was valid can be questioned on this Election Petition, having regard to r 12(5) and (6) of the Rules.

Relevant Statutory Provisions.(1) The 1983 Act, as applied by European Parliamentary Election Regulations 1986 (as amended) contains the following provisions:

Section 23. Rules for parliamentary elections.

(1) the proceedings at a parliamentary election shall be conducted in accordance with the Parliamentary Elections Rules, Sch 1 to this Act.

(2) It is the Returning Officer's general duty at a parliamentary election to do all such acts and things as may be necessary for effectually conducting the election in a manner provided by those parliamentary elections rules.

Section 120. Method of questioning parliamentary election.

(1) No parliamentary election and no return to Parliament shall be questioned except by a petition complaining of an undue election or undue return ("a parliamentary election petition") presented in accordance with this Part of this Act.

Section 157. Appeals and Jurisdiction.

(2) Subject to the provisions of this Act and the rules made under it, the principles, practice and rules on which election courts act in dealing with parliamentary election petitions shall be observed, so far as may be, by the High Court and election court in the case of European Parliamentary election petitions.

(2) The Parliamentary Election Rules in Sch 1 of the 1983 Act as applied by the European Parliamentary Elections Regulations 1986 (as amended) contain the following rules:

Part 1.

PROVISIONS AS TO TIME

Timetable

1.The proceedings at the election shall be conducted in accordance with the following table.

TIMETABLE

Proceeding Time

Publication of notice Not later than the of twenty- election fifth day before the date of the poll.

Delivery of nomination Between the hours of 10am papers and 4pm on any day after the date of the publication of the notice of election but not later than the nineteenth day before the date of the poll.

Delivery of notices Within the time for the delivery of withdrawals of of nomination papers at the candidature election.

The making of objections to nomination papers. During the hours allowed for delivery of nomination papers on the last day of their delivery and the hour following; but -

(a) no objection may be made in the afternoon of that last day except to a nomination paper delivered within 24 hours of the last time for its delivery, and in the case of a nomination paper so delivered no objection may be so made to the sufficiency or nature of the particulars of the candidate unless made at or immediately after the time of the delivery of the nomination paper; and

(b) the foregoing provisions do not apply to objections made in pursuance of r 15(2) below.

Publication of At the close of the time for statement of persons making objections to nominated nomination papers or as soon afterwards as any objections are disposed of.

... ...

PART II

STAGES COMMON TO CONTESTED AND UNCONTESTED ELECTIONS ISSUE OF WRIT AND NOTICE OF ELECTION

... ...

Notice of Election

5.(1)The Returning Officer shall publish notice of the election stating -

(a) the place and times at which nomination papers are to be delivered, and

(b) the date of the poll in the event of a contest, and the notice shall state that forms of nomination papers may be obtained at that place and those times.

...

NOMINATION.

Nomination 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.

(4) A nomination paper may consist of a single sheet, or of two or more sheets securely fastened together. Subscription of nomination paper

7.(1) The nomination paper shall be subscribed by two electors as proposer and seconder, and by 28 other electors assenting to the nomination.

Consent to nomination

8.(1) A person shall not be validly nominated unless his consent to nomination -

(a) is given in writing on or within one month before the day fixed as the last day for the delivery of the nomination papers,

(b) is attested by one witness, and

(c) is delivered at the place and within the time for delivery of nomination papers....

Deposit

9.(1) A person shall not be validly nominated unless the sum of #1000 is deposited by him or on his behalf with the Returning Officer at the place and during the time for delivery of nomination papers...

Place for delivery of nomination papers

10.(1) The returning officer shall fix the place in the European Parliamentary constituency at which nomination papers are to be delivered to him, and shall attend there during the time for their delivery and for the making of objections to them.

...

Right to attend nomination

11.(1) Except for the purpose of delivering a nomination paper or of assisting the returning officer, and subject to paragraph (4) below, no person is entitled to attend the proceedings during the time for delivery of nomination papers or for making objections to them unless he is -

(a) a person standing nominated as candidate, or

(b) the election agent, proposer or seconder of such a person; but where a candidate acts as his own election agent he may name one other person who shall be entitled to attend in place of his election agent.

(3) The right to attend conferred by this rule includes the right -

(a) to inspect, and

(b) object to the validity of, any nomination paper.

Decisions 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...

Publication of statement of persons nominated.

14.(1) The returning officer shall prepare and publish a statement showing the persons who have been and stand nominated and any other persons who have been nominated with the reason why they no longer stand nominated.

(2) The statement shall show the names, addresses and descriptions of the persons nominated as given in their nomination papers, together with the names of the persons subscribing these papers as proposer and seconder.

(3) The statement shall show the persons nominated arranged alphabetically in order of their surnames, and, if there are two or more of them with the same surname, of their other names...

Disqualification by Representation of the People Act 1981

15.(1) If it appears to the returning officer that any of the persons nominated might be disqualified by the Representation of the People Act 1981 he shall, as soon as practicable after the expiry of the time allowed for the delivery of nomination papers, prepare and publish a draft of the statement required under r 14 above.

(2) The draft shall be headed "Draft statement of persons nominated" and shall omit the names of the persons subscribing the papers but shall contain a notice stating that any person who wishes to object to the nomination of any candidate on the ground that he is disqualified for nomination under the Representation of the People Act 1981 may do so between the hours of 10 in the morning and 4 in the afternoon on the day and at the place specified in the notice; and the day so specified shall be the day next after the last day for the delivery of nomination papers...

PART III

CONTESTED ELECTIONS

GENERAL PROVISIONS

Poll to be taken by ballot

18. The votes at the poll shall be given by ballot, the result shall be ascertained by counting the votes given to each candidate and the candidate to whom the majority of votes have been given shall be declared to have been elected.

The ballot papers

19.(1) The ballot of every voter shall consist of a ballot paper, and the persons shown in the statement of persons nominated as standing nominated, and no others, shall be entitled to have their names inserted in the ballot paper.

(2) Every ballot paper shall be in the form in the Appendix, and shall be printed in accordance with the directions in that Appendix, and -

(a) shall contain the names and other particulars of the candidates as shown in the statement of the persons nominated;

...

(3) The order of the names in the ballot paper shall be the same as in the statement of persons nominated.

(3) s 1 of the Representation of the People Act 1981 provides that a person found guilty of one or more offences whether in the United Kingdom or elsewhere and whether before or after the passing of the Act and sentenced or ordered to be imprisoned or detained indefinitely, or for more than one year, is disqualified for membership of the House of Commons while detained anywhere in the British Isles or the Republic of Ireland in pursuance of the sentence or order, or while unlawfully at large at a time when he would otherwise be so detained.

Section 2(1) of the 1981 Act provides that if a person disqualified by the Act for membership of the House of Commons is elected to that House his election shall be void; and if such a person is nominated for election as a member of that House his nomination shall be void.

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).

We make the following comments:

(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".

Be that as it may, in our judgment if Mr Beloff wishes to complain of confusion, he must say that Mr Huggett in effect described himself as a "Liberal Democrat". If Mr Huggett's description was clearly seen or understood as "Literal Democrat", then there could be no confusion,

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. If the returning officer is required to conduct an investigation to establish which candidate has the best claim to the description, that will in most if not all cases require him to make findings as to the underlying facts, and often make judgments of a politically sensitive nature. Suppose that the returning officer has established the true facts in relation to candidate B and C By what criterion does he decide that candidate C has the stronger claim to describe himself as "Liberal Democrat"? Why should the returning officer tell candidate B that he will reject his nomination paper unless he changes the description to, say, "Liberal Democrat (unofficial)", rather than tell candidate C that he will reject his nomination paper unless he changes his description to , say, "Liberal Democrat (official)"? We can find no basis for construing r 12 (2)(a) as empowering the returning officer to conduct a limited factual investigation of the underlying facts, but which falls short of entering into what Mr Beloff rightly recognises as forbidden political territory.

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. The language of the Rules is drafted to distinguish between the nomination paper of a candidate and his nomination. Thus, for example, rr 8(1), 9(1) and 12(6) speak of "nomination"; whereas r 11(1)(3), 12(1)(a),(2)(3)(4) and (5) are concerned with a "nomination paper". The power under r 12(2)(a) is concerned with nomination papers.

The Courts have on a number of occasions stated that the duty of the returning officer under the predecessor rules of r 12(2) of the Rules did not require him to conduct any investigation of the underlying facts, but merely to look at and not beyond the face of the nomination paper itself. We have been referred to Pritchard v Bangor Corporation 1888, 13 App Cas 241, Watson v Ayton [1946] 1 KB 297, R v Election Court, ex parte Sheppard [1975] 2 All ER 723, [1975] 1 WLR 1319 and Greenway-Stanley v Patterson [1977] 2 All ER 663, 75 LGR 367. We shall quote from only the two most recent of these cases. In ex parte Sheppard, the question was whether the returning officer should have decided that the candidate's nomination paper was invalid, since the address stated on the paper was a false address. At page 1324D of the latter report, Lord Widgery CJ said:

"I take the view that the provision of subrule (2), to the effect that the returning officer can hold a nomination paper invalid only on the ground there specified, means that it is only to those grounds that the returning officer applies his mind when deciding whether to rule a nomination paper valid or not. Furthermore, as it seems to me, he must be looking to see if the paper is good in form. The returning officer cannot possibly be expected to know where every candidate lives and where everybody who has supported the candidate is to be found. Those are matters which are not for him to certify one way or the other. But what the returning officer must do in my judgment is to see that the form of the document is correct and that, where a home address is required, then there is an address purporting to be the home address of the person concerned. I do not think the returning officer's duties, or the consequence of his performance of those duties, goes beyond seeing that the form is correct on its face."

In Greenway-Stanley v Patterson, the petitioner contended that the surname shown as "Greenway-Stanley" on the nomination paper was false, since the candidate's true name was "Stanley", and that the returning officer should have held the nomination paper invalid on that account.In rejecting the argument, O'Connor J referred with approval to the passage from Lord Widgery's judgment to which we have just referred, and continued at page 669J:

"It is submitted by counsel for the returning officer that all the court was doing in that case was saying that there was no duty on the returning officer to do more than scrutinise the actual nomination papers but that if information came to his notice which showed that the candidate was disqualified, and patently disqualified, he would be entitled to reject the nomination paper. I do not agree with that submission. It seems to me that the returning officer's duty is confined to seeing that the nomination papers are in due form. Obviously that must include, if he so wishes, a check against the electoral roll because for example, the subscribers have to give their electoral roll numbers, and it would be perfectly proper for the returning officer to look at the electoral roll and if he finds a discrepancy to take action on it, and if it is not put right the paper on the face of it is invalid and it can be so declared; but it does not entitle him to embark on an enquiry as to the validity of the candidates's particulars which, on their face, are unobjectionable. There is good sense, in my judgment, in so holding because the time limits are necessarily fairly tight and there is no time or machinery to make the sort of enquiry which it is necessary to make in order to reach a decision by the closing date for nominations, and if an example is wanted of that no better example could be found than R v Election Court, ex parte Sheppard because the trial of the issue before the election court whether a correct home address had been given took four days, and it is obviously impossible to mount that sort of enquiry between the time when the nomination papers are lodged and the deadline for their reception. Also there is no machinery by which the returning officer could embark on such an enquiry. In my judgment not only is he under no duty to do so but the duty is that he should not do so and that he cannot embark on that sort of enquiry. That in fact is what he did in the present case and in my judgment, in any event, he arrived at a wholly wrong decision. It is something which is likely to happen because of the turmoil in which it is done. He himself was a busy man, carrying out his normal duties as the executive officer of the local authority, and as returning officer a part-time duty. The facts to which I have already referred disclose the sort of hurry and muddle which can occur and did occur."

This is the first case in which the court has had to decide the nature and extent of the powers of the returning officer in relation to holding a nomination paper invalid on the grounds of an alleged defective description. In principle, we hold that the powers of the returning officer to investigate underlying facts in relation to the question raised by r 12(2)(a) are the same whatever the alleged non-compliance with the requirements of law may be.

As O'Connor J pointed out, the Rules provide no machinery for an investigation of the type that Mr Beloff suggests would or might be necessary in order to enable the returning officer to reach a decision. The absence of machinery to facilitate an investigation of the underlying facts in relation to a breach of r 6(2)(3) is to be contrasted with the existence of such machinery where the possibility of disqualification and the invoking of r 12 (2)(c) arises. That machinery is contained in r 15. Mr Beloff makes the point that the r 15 machinery is not very effective. That may be so, although it should be borne in mind that the question whether a candidate is disqualified under s 1 of the Representation of the People Act 1981 is rarely likely to give rise to difficult questions of disputed fact. The important point, however, is that Parliament saw fit in relation to r 12(2)(c) to provide some machinery to assist the returning officer in reaching a decision.

As O'Connor J also pointed out, there is no time in which to make the sort of enquiries which it may be necessary to make in order to reach a decision by the closing date for nominations. We return to our earlier example where the nomination paper of candidate C is delivered very shortly before 4pm on the last day. It will be quite impossible for the returning officer to conduct any sort of investigation at that late stage. Even if it were possible, there would be no time for the unsuccessful candidates to change their descriptions and obtain ( as they would have to do) the fresh subscriptions of 28 subscribers before the expiry of the deadline. We do not consider that Parliament could have intended such situations to arise. They do not arise if the exercise of the returning officer is confined to a decision on the paper.

(ii) s 23(2) of the 1983 Act Mr Beloff emphasises the fact that the duty is a general duty to do all such acts and things as may be necessary for effectually conducting elections in the manner provided by the Rules. He further submits that the words "in the manner provided by" are wider than "in accordance with", which is the phrase used in s 23(1). This leads Mr Beloff to submit that the duty in s 23 (2) is wider than a duty simply to ensure that the election is conducted strictly in accordance with the Rules. As he put it, the returning officer is required to ensure that the election is conducted in accordance with the spirit and not merely the letter of the Rules. We accept that the purpose of s 23(2) is to empower the returning officer to do things which are not expressly provided for by the Rules or elsewhere in the statute if they are necessary for effectually conducting the election in the manner provided for by the Rules. It is directed to matters of detail which are not covered by the Rules or to be found elsewhere in the statute. Section 23 (2) is not, however, intended to detract from the main thrust of s 23(1). That sub-section contains the principal rule for the conduct of elections, which is that they are to be conducted in accordance with the Rules. In our judgment, it is inconceivable if Parliament had intended that the returning officer should conduct investigations of underlying facts of the kind envisaged by Mr Beloff's argument that it would not have so provided in the Rules, and would not have provided effective machinery to that end. The reasoning of O'Connor J in the Greenway-Stanley case in the passage which we have already cited applies with equal force to the issue when examined under s 23(2) of the 1983 Act as under the Rules.

Accordingly, we derive support for our conclusion as to the true construction of r 6(3) from the fact that the returning officer does not have the necessary power to conduct the kind of investigations and make the kind of decisions that would be required if practical effect is to be given to Mr Beloff's construction.

Hansard

For the reasons already given, we have reached a clear conclusion as to the true construction of r 6(3). If, however, we are wrong about that, then we are satisfied that at the very least the meaning of the sub-rule is ambiguous and/or obscure as to whether or not a description calculated to mislead electors is, with his other particulars, sufficient to identify the candidate who is using that description. On this hypothesis, therefore, it is necessary to consider whether we are permitted to find any illumination of this question in material contained in the reports of Hansard. We reject Mr Tugendhat's arguments that the effect of s 157(2) of the 1983 Act is that we can look at Hansard even if the conditions laid down by the House of Lords in Pepper v Hart [1993] AC 593, [1993] 1 All ER 42 are not satisfied.

We have earlier in this judgment set out s 157(2) of the 1983 Act as it applies to European Parliamentary Elections. It refers to election courts observing, so far as may be, the principles, practice and rules on which election courts act in dealing with Parliamentary Election petitions. It is therefore, necessary, to consider the effect of s 157(2) of the 1983 Act in so far as it applies to Parliamentary election petitions. It provides as follows:

Section 157. Appeals and Jurisdiction.

...

(2) Subject to the provisions of this Act and the rules made under it, the principles, practice and rules on which committees of the House of Commons used to act in dealing with election petitions shall be observed, so far as may be, by the High Court and election court in the case of election petitions, and in particular the principles and rules with regard to -

(a) agency,

(b) evidence,

(c) a scrutiny, and

(d) declaring any person elected in place of any other person declared not to have been duly elected, shall be observed, as far as may be, in the case of a petition questioning an election under the local government Act as in the case of a parliamentary election petition.

In our judgment, whatever the principles and practice on which committees of House of Commons used to act in dealing with election petitions (as to which we have no evidence), we are quite satisfied that we cannot interpret the 1983 Act other than by applying the ordinary rules of statutory interpretation. The reference in s 157(2)(b) to "evidence" does not permit this court to have regard to Hansard as an aid to statutory interpretation in circumstances in which it would not be permissable in any other court. The principles stated in Pepper -v- Hart are clear. In cases of ambiguity or obscurity, we may look at material containing a clear indication from Ministers directed to the matter in issue in order to resolve the ambiguity or illuminate the obscurity.

As Hansard records, in the debate in the House of Commons on 18 December 1968 over the Representation of the People Bill there was much discussion on the subject of political descriptions of candidates. Mr Hogg (as he then was) had proposed a rule entitling a duly nominated candidate to object to the description of another candidate on the grounds that his description was misleading and did not accurately describe him. Mr Callaghan (as he then was), the Home Secretary, in rejecting that proposal and putting forward a proposal that substantially reflects the Rules as finally enacted said inter alia:

"The scheme is simple - one describes oneself in any way one thinks appropriate......

It will not be the function of the returning officer to determine whether the descriptions included in the ballot paper are those which a candidate can properly claim to use. The reason for this is the desire and practice of all parties to avoid involving returning officers in questions which are essentially political.

Every case put forward has some difficulties and objections. The objection to this is clear. It is the prospect that some candidate might use descriptions to mislead electors. This is something that we shall have to take into account. In considering it I have had regard to past history and future prospects. If I may put it on the most pompous plane, it would show a lack of proper respect for our Parliamentary procedures if we proceeded on the view that candidates who were advancing themselves for selection by their fellow citizens for elevation to this House or to local government were likely to so misuse the procedure as to endeavour to deceive the electors about themselves.

I would hope that most people who stand for election would have a proper sense of responsibility. I agree that one cannot wholly rely on that. I do not think there is much in the argument that any political party will find a series of #150 deposits to put up so that they can nominate mischievous candidates on the other side. That is not the way we normally conduct our affairs, but it is a risk we will have to take in adopting a procedure of this sort.

The greatest difficulty is likely to come when one has a candidate who is slightly off-centre from his party and wants to claim the right to call himself by that party name. I would answer that by saying he can do that at the moment on everything but the ballot paper. He can do it in his address to the electors, in his window bills, in any election literature including his "election specials" that he cares to send round. So we are not removed from that danger at all, although obviously we are increasing it marginally by allowing such a misleading description, if it is misleading, to be included in the ballot paper........

Under the law there is no provision for considering the question of a misleading description at the stage of nomination. One reason is that the returning officer would not be able to deal with such an objection.....

There are also some practical objections to the right hon and learned Member's amendment. If there was agreement between the objector and the candidate in question to amend the description complained of, and they might come to an agreement after representations, there would have to be some procedure for notifying other candidates of the change, because they might feel that they had an interest in it too. They might object to the change of description. It might come too close to their own candidature to make it attractive to them. We would have to provide for them not to be deprived of their opportunity. It is at least possible to argue that if there is a change to be made the proposer and the other signatures on the nomination paper ought to be consulted before a change is made.....

I will not propose any machinery. What I am saying is that no machinery exists. If we were to adopt this proposal it would be necessary to write in some machinery I recommend that it is not worthwhile devising an intricate piece of machinery for this purpose. The overriding factor however is that it is undesirable that the returning officer should become involved in political controversy. The effect of the Amendment would clearly be to involve him. He would have to take some decisions.....

Having looked at this Amendment as fairly as I have looked at all the other proposals, I have reached the conclusion that although an element of risk is involved, if one takes account of the factors, if we start from the premise that it is a good thing to have a description on the ballot paper, either political or personal, we should leave it to the good sense of the candidate to decide how they should call themselves...."

When the matter was debated in the House of Lords, Lord Stonham, Minister of State, Home Office said:

"Consideration of this scheme in another place showed that its complexity made it undesirable even for Parliamentary elections, and for local government elections, where the need for Party labels on ballot papers is greatest it would be almost impossible. Accordingly, Clause 12, as it now appears, substitutes a very simple scheme which has been described as a "free for all", whereby subject to a statutory limit as to the number of words, the candidate may, if he wishes, include a reference to his political activities in the description on his nomination paper, which will then appear on the ballot paper. There are, it is true, possibilities of abuse and of awkward cases arising where two candidates lay claim to the same party label. On the whole however, the Government are prepared to trust the good sense of the majority of those taking part in political life, and think that the simplicity of the scheme now put forward, together with its applicability to local government elections, will be found to outweigh possible disadvantages....."

It is clear, therefore, that the possibility of misleading descriptions was considered in detail before the passing of the 1969 Act. The Government position was clearly stated by Mr Callaghan and Lord Stonham. A scheme for objection and the necessary accompanying machinery was considered and rejected. The possibility of abuse was understood and accepted with apparent equanimity. In our view, Mr Beloff's construction of r 6(3) is plainly inconsistent with the intention of Ministers as evinced during the debate on the 1969 Bill in Parliament. Accordingly, if we had been of the view that the meaning of r 6(3) was ambiguous or obscure we would have felt able to have recourse to Hansard to resolve the ambiguity or obscurity adversely to Mr Beloff's arguments.

The Second Question.

It is common ground that whatever the nature and scope of the returning officer's duty, he had such a duty irrespective of whether or not objections were made to the relevant nomination paper. Since this point is important and apparently has not been the subject of any previous authority we shall briefly state why we agree that the duty arises whether or not an objection has been made.

It is nowhere expressly provided in the 1983 Act that the making of an objection is a sine qua non of the returning officer's ability to determine the validity of a nomination paper. On the contrary, r 12(2) speaks of his entitlement to hold a nomination paper invalid. This means that a returning officer has an absolute right to hold a nomination paper invalid on a prescribed ground, whether or not an objection has been made by or on behalf of a candidate under r 11(1) and (3). Furthermore, neither r 12(1)(a) nor r 12(2) on their face requires an objection. Rule 12(3) refers to the procedure if an objection is made without suggesting that the returning officer's obligation to decide is contingent upon objection. Moreover, it would be absurd and manifestly contrary to policy if an objection was required when the nomination paper was patently defective. The making or otherwise of an objection is adventitious. Why should the requirements of the law be breached without sanction merely because someone has not been sufficiently astute or concerned to make an objection?

It was also common ground that the returning officer had a duty to examine all nomination papers delivered to him and decide whether the candidate's named therein had been validly and lawfully nominated. None of the grounds of invalidity in r 12(2) gives any discretion to a returning officer. The power to hold a nomination paper invalid is limited to the returning officer's finding of one or more of three grounds. Where it exists, it is necessarily coupled with a duty. It must follow that a returning officer is under a duty to hold a nomination paper invalid if he considers that there is a ground of invalidity.

Nor was there dispute that if a returning officer decided that the particulars of any candidate were "not as required by law" within the meaning of r 12(2)(a), he had a duty to hold the nomination paper to be invalid. The addition in the second question of the words " or were otherwise unlawful" raises a question of the scope of the duty. We do not consider that these words add anything to " not as required by law". In our judgment the words "not as required by law" in r 12(2)(a) are wider than "not in accordance with these rules".

Accordingly we answer the second question in the affirmative.

The Third Question

In the light of our answer to the first question, no breach of duty on the part of the returning officer could be founded on any failure of the description of Mr Huggett to comply with r 6(3).

Mr Beloff had a further argument that the particulars of Mr Huggett were "not as required by law". He submitted that Mr Huggett's nomination paper should have been rejected on the grounds that the description was an "abuse of the right of nomination" or an "obvious unreality". Mr Beloff relies on an obiter dictum of Wright J in Harford v Linskey [1899] 1 QB 852, 862 that:

"We do not understand it to be laid down in the Bangor case 1888 13 App Cas 241 that a nomination cannot ever be rejected except for informality in the form or presentation of it. If the nomination paper is, on the face of it, a mere abuse of the right of nomination or an obvious unreality, as, for instance, if it purported to nominate a woman or a deceased sovereign, there can be no doubt that it ought to be rejected, and no petition could be maintained in respect of its rejection".

That case concerned a municipal election under the Municipal Corporations Act 1882, Sch III Pt 2 applied by s 55. It is important to point out the statutory regime in force at that time did not limit the grounds on which a returning officer was entitled to reject a nomination paper. The language of r 12(2) of the 1983 Rules, however, is emphatic: "The returning officer is entitled to hold a nomination paper invalid only on one of the following grounds" (emphasis added). Mr Beloff says that the obiter dictum of Wright J has been followed in a number of cases. In Hobbs v Morey [1904] 1KB 74, the dictum was cited with approval. In Watson v Ayton [1946] KB 297, there was a neutral reference to the dictum. In Evans v Thomas [1962] 2 QB 350, [1962] 3 All ER 108, the dictum was applied. In none of these cases did the Rules expressly limit the right of the returning officer to hold a nomination paper invalid to certain specified grounds.

In R v Bennet ex parte Margaret Thatcher, an unreported decision of the Court of Appeal dated 3 June 1983, Stephenson LJ, having said that it was unnecessary in that case to decide whether the dictum of Wright J was correct, added:

"suffice it to say that Mr O'Connor has put before the court powerful arguments for submitting that what was stated obiter, and probably correctly stated obiter in 1899 no longer applies now that there are the very positive words in the 1st Schedule in Rule 12 sub rule (2) apparently limiting the grounds on which a returning officer is entitled to reject a nomination paper to those three which I have read".

In our judgment, the dictum of Wright J (at least in the terms in which he expressed it) does not apply to the conduct of elections under the current statutory regime. Candidates who give descriptions that are obscene, racist or an incitement to crime deliver particulars that are "not as required by law" because they contravene the law and/or will inevitably involve the returning officer in a breach of the law, not because they are an "abuse of the right to nomination".

There was discussion before us about the candidate who obviously gives a fictitious name and address such as "Mickey Mouse of Disneyland". The law has always treated sham documents and transactions as nullities. That would be a sufficient basis for holding the nomination paper to be invalid on the grounds that the particulars were not as required by law. Mr Beloff relies on the Margaret Thatcher decision itself. In that case, Mr Hanoman, who was living at 83, Northfield House, Peckham Park Road, London, SE15 changed his name by deed poll to Margaret Thatcher, and his address to "Downing Street Mansions at 83, Northfield House". He did this three days before the deadline for delivery of nomination papers. The returning officer gave four reasons for rejecting his nomination paper: "1. that it is an abuse of the right of nomination; 2. that it is an obvious unreality; 3. that the form of consent of candidate to nomination was not duly attested; 4. that the particulars of the candidate provided in the statutory documents was not as required by law". Mr Hanoman appealed against the refusal of the single judge refusing judicial review in respect of that decision. His appeal was dismissed. In our judgment, that authority does not assist Mr Beloff's argument. Having expressed considerable doubt as to the applicability of the dictum of Wright J, the Court of Appeal went on in the exercise of its discretion to refuse relief to the appellant on the grounds that his application constituted an abuse of process since he was seeking to confuse the electorate. It was a case where the candidate obviously intended to confuse the electorate. Eveleigh LJ (transcript at page 12E) referred to his "unlawful object of confusing the people and making the electoral process a farce". Nevertheless, the Court was at pains to reserve its opinion on the question whether the returning officer was entitled to reject the appellant's nomination paper on that ground.

Another case relied on by Mr Beloff is Patterson v Merrick and Hammond, an unreported decision of the Court of Appeal dated 2 November 1988. In that case, Rougier J had refused to discharge an injunction granted against the first defendant restraining him from describing himself as "the Official Byron Ward Conservative" in connection with a by-election which was to take place in the Byron Ward of Nottingham. There was another candidate who had described himself in his nomination paper as "the Official Conservative Party candidate". The plaintiff's appeal was unsuccessful. The extremely short judgment of the Court of Appeal does not indicate what cause of action was relied upon by the plaintiff to support his private law claim. We derive no assistance from this authority.

We would hold that there is no power in the returning officer to reject a nomination paper on any ground other than those stated in r 12(2)(a)(b) or (c), unless the nomination paper is manifestly a sham. The words "not as required by law" are sufficient to exclude descriptions which are illegal. The exclusion of sham nomination papers would deal with the example given by Wright J of the deceased sovereign.

If we are wrong, and the dictum of Wright J is still good law, we are nonetheless of the view that the returning officer was not in breach of duty in not rejecting Mr Huggett's nomination paper. The description was not an "obvious unreality". There is obviously nothing unreal in the political description that he used. Nor in our judgment was it an "abuse of the right to nomination". The description may have been calculated to mislead some of the voters. On the face of it, however, for the reasons already given, it was no more, but probably rather less likely to mislead than would have been the description "Liberal Democrat". There was no exclusive right in Mr Sanders to the description "Liberal Democrat". The description "Literal Democrat" was not an abuse of the right to nomination.

The Fourth Question.

Mr Beloff makes three submissions:

(i) r 12(5) means that the returning officer's decision is final only in relation to a challenge to the nomination paper in advance of an election; alternatively

(ii) whether a candidate's description, with his other particulars, is sufficient to identify him is a matter of substance and not just a matter of form, and the issue that arises goes to the validity of the nomination as well as to the validity of the nomination paper, so that r 12 (5) does not prevent a challenge under r 12 (6); alternatively

(iii) on the facts of this case the decision of Mrs Tucker was a nullity, so that on the principle enunciated in Anisminic Limited v Foreign Compensation Commission [1969] 2 AC 147, [1969] 1 All ER 208, the ouster provision in r 12(5) does not apply.

As regards the first submission, we simply say that it is impossible to interpret the words of the Rules so as to restrict the privative effect of r 12(5) to a challenge in advance of the election. Arguably, it may be reasonable to restrict its effect in the way suggested by Mr Beloff, but it is clear that Parliament has not chosen to do so.

As for his second submission, Mr Beloff is in a difficulty. His primary case is that the returning officer has the duty under r 12(2)(a) to hold invalid a nomination paper on the grounds that it contains a misleading description because of non-compliance with r 6(3). For the purposes of the fourth question we must assume that he is correct about that. The decision is as to the validity of the nomination paper, not as to the validity of the nomination. The relevant distinction, recognised by the Rules is between the validity of a nomination paper and the validity of a nomination. It is unhelpful to introduce a different distinction which is not recognised by the Rules, namely that between form and substance. Whether it is right to describe the decision as to the validity of Mr Huggett's nomination paper qua his description as one of form or substance can no doubt be debated, but it is irrelevant in the present context. Rule 12(5) clearly provides that the returning officer's decision that a nomination paper is valid shall be final and shall not be questioned in any proceeding whatsoever. Rule 12(6) provides that subject to r 12(5), nothing in r 12 prevents the validity of a nomination being questioned on an election petition. Thus it is not possible to challenge a decision as to the validity of the nomination paper in any proceedings (including an election petition). It is, however, possible on an election petition to challenge any decision that a nomination paper is invalid and also to challenge the validity of the nomination (as opposed to the validity of the nomination paper) on any ground whatsoever.

In our judgment, that this is the true meaning and effect of r 12(5) is clear. Mr Beloff points out that while r 12(2)(a) and (b) are concerned with what might loosely be described as matters of form, r 12(2)(c) is concerned with a matter of substance. A candidate either is or is not disqualified as a matter of ascertainable fact. He says: surely Parliament cannot have intended that an erroneous decision to hold the nomination paper of a disqualified candidate to be valid should be immune from challenge. The answer to this is provided by ss 1 and 2 of the Representation of the People Act 1981. In this special case, Parliament has contemplated the possibility of a candidate being elected despite his disqualification, and has provided that his nomination and election shall be void. There is no analogous provision in any statute to which our attention has been drawn in relation to candidates whose nomination papers should have been held to be invalid under r 12(2)(a) or (b).

We turn to Mr Beloff's third submission. In her affidavit sworn on 3 August 1994 Mrs Tucker says this at para 10:

"after the delivery of a nomination paper a check has to be made. The cash deposit has to be received and names and addresses of the assentors have to be checked against the electoral register. This exercise, which takes about 20 minutes, was done in respect of Mr Huggett's nomination paper. In addition I read the description ("Literal Democrat") back to him in order to confirm it as correct. He did so and spoke to the effect that he stood for the true meaning of democracy".

At para 22 she says:

"I have already referred to my dealings with Mr Huggett prior to the close of nominations. In particular how he never gave me any description for the purpose of the election other than "Literal Democrat".

That affidavit was sworn after the hearing before Sedley J., and after it was known that the petitioner was contending that there was a breach of Rule 6(3), because the description "Literal Democrat" was calculated to mislead voters into believing that Mr Huggett was the official Liberal Democrat candidate. Mrs Tucker does not assert in her affidavit that she applied her mind to the possibility of that confusion being generated by that description. We infer from her failure to refer to this against the background of the hearing before Sedley J. that she did not apply her mind to that possibility. This is hardly surprising, since it is her opinion that the returning officer must not do anything that "might be taken as implying a judgment on political matters" (paragraph 4 of her affidavit). We must remind ourselves that the fourth question only arises if, contrary to our view, Mr Beloff is successful on the first three questions. On this hypothesis, it would follow that Mrs Tucker's decision as to the validity of the nomination paper would have been fundamentally flawed. She would have failed to direct herself properly and failed to take something into account which she was required to take into account. Prima facie, therefore, the decision would have been a nullity as explained by Lord Reid in Anisminic at page 169F to 171G, and Rule 12(5) does not oust the jurisdiction of the court under Section 120 of the 1983 Act.

In answer to this, Mr Straker relies on R v Cornwall County Council ex parte Huntington, [1992] 3 All ER 566, and distinguishes Anisminic. In Anisminic, the ouster clause was in these terms: "the determination by the Commission of any application made to them under Act shall not be called in question in any court of law". Mr Straker submits that Anisminic was concerned with a total ouster clause, and that the position is different where (as in the present case) there is a whole scheme only part of which is the subject of an ouster clause. Put another way he says that the existence of Rule 12(6) which asserts the jurisdiction of the election court to certain elements of the whole scheme means that Rule 12(5) can be given full effect even where the decision of the returning officer as to the validity of a nomination paper is a nullity. We cannot accept this argument. In Ex parte Huntington, the relevant paragraph provided, so far as material:

"(1) If any person is aggrieved by an order which has taken effect and desires to question it's validity on the ground that it not within the powers of Section 53.... or that any of the requirements of this Schedule have not been complied with in relation to it, he may within 42 days from the date of publication of the notice under paragraph 11 make an application to the High Court under this paragraph....

(3) Except as provided by this paragraph the validity of an order shall not be questioned in any legal proceedings whatsoever".

As Mann LJ said at page 569D, this was a standard form of preclusive clause, whose " common features are the prescription of a opportunity to challenge on specified grounds and of the period within which that challenge can be made together with the proscription of any challenge outside that period". Such clauses are generally upheld by the courts and are regarded as distinguishable from the type of ouster clause considered in Anisminic. It will be seen crucially that in such clauses, the jurisdiction of the courts on the question at issue is not excluded altogether, but that any challenge must be made within a specified time limit. In the present case, if Mr Straker is right, the jurisdiction of the election court to impugn a decision of the returning officer to hold a nomination paper to be invalid is excluded altogether, even where the grounds relied on are a breach of duty in circumstances rendering the decision a nullity. We do not accept that the fact that the decision as to the validity of a nomination paper is merely part of a process is a good reason for holding that the Anisminic principle does not apply. That decision is a discrete part of that process whose consequences are of the utmost importance.

Our conclusion on the fourth question, therefore, is that if Mr Beloff had succeeded on the first three questions, we would have held that in the events that occurred the decision of the returning officer that the nomination paper of Mr Huggett was valid could have been questioned on this election petition under Rule 12(6) of the Rules.

Conclusions.In the result, we answer the four questions as follows:

(i) the particulars of Mr Huggett were "as required by law";

(ii) the second Respondent had such a duty;

(iii) the second Respondent was not in breach of his duty;

(iv) if the answers to questions (i) and (iii) had been to the contrary effect, then in the events that occurred, the decision of the second Respondent that the nomination paper of Mr Huggett was valid could be questioned on this Election Petition, despite Rule 12(5) of the Rules.

Perhaps Mr Lewis was right when he said that most people would say that most voters vote for a candidate because of the political party that he or she represents rather than on account of any personal characteristics. Furthermore, it might be thought obvious that the description "Literal Democrat" was calculated to confuse the voters and mislead supporters of Mr Sanders into thinking that Mr Huggett was Mr Sanders.

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.

Judgment accordingly