AuthorGeorge L Gretton,Greg Gordon,Navraj Singh Ghaleigh,Peter Duff,Jane Mair,Martin Hogg,Frankie McCarthy
Published date01 May 2011
Date01 May 2011
<p>On 26 January 2011 the former Scottish Socialist Party MSP Tommy Sheridan was sentenced to three years’ imprisonment for perjury.<xref ref-type="fn" rid="fn1-1"><sup>1</sup></xref><fn id="fn1-1"><label>1</label><p>For the sentencing statement of Lord Bracadale, presiding, see <ext-link ext-link-type="uri" xlink:href="http://www.scotland-judiciary.org.uk/8/709/HMA-v-THOMAS-SHERIDAN" xlink:type="simple"><italic>http://www.scotland-judiciary.org.uk/8/709/HMA-v-THOMAS-SHERIDAN</italic></ext-link>.</p></fn> As a consequence was Mr Sheridan disqualified from membership of Parliament by virtue of his conviction, or by virtue of his imprisonment? Or neither? If disqualified, for how long? And from which Parliament? Was there any prospect of his being a candidate in the 2011 Scottish Parliament elections, due to take place a matter of months after sentencing? In attempting to answer such questions the BBC reported that as a consequence of his conviction Sheridan “won't be able to stand for the Scottish Parliament again”<xref ref-type="fn" rid="fn1-2"><sup>2</sup></xref><fn id="fn1-2"><label>2</label><p>BBC Radio 4, <italic>The World At One</italic>, 26 Jan 2011.</p></fn> whilst <italic>The Guardian</italic> claimed that “Sheridan's conviction means that he will be unable to stand again for parliament”.<xref ref-type="fn" rid="fn1-3"><sup>3</sup></xref><fn id="fn1-3"><label>3</label><p>“Tommy Sheridan sentenced to three years in prison”, <italic>The Guardian</italic> 26 Jan 2011.</p></fn> Neither statement is correct and after (though not necessarily because of) emails from this author, the BBC withdrew the claim from subsequent broadcasts and <italic>The Guardian</italic> website's “article history” shows that a similar modification was made to their story. What then are the relevant rules of electoral law, how do they apply to Mr Sheridan's circumstances and why are they so poorly understood?</p> THE RULES

Assuming no incapacity based on age or nationality,4

Electoral Administration Act 2006 Part 5.

the starting point for determining whether an individual lacks capacity to stand as a candidate at an election is the House of Commons Disqualification Act 1975. As is well known, this provides for the disqualification of certain serving public officials – judges, civil servants, members of the police and armed forces, etc5

The “disqualifying offices” listed in Schedule 1 of the Act are regularly amended by Order in Council.

 – from membership of the Commons and, by virtue of the Scotland Act 1998, the Scottish Parliament.6

“A person is disqualified from being a member of the [Scottish] Parliament if … he is disqualified … from being a member of the House of Commons or from sitting and voting in it.” Scotland Act 1998 s 15(1)(b).

Clearly however, none of these disqualifications would apply to Mr Sheridan. We must look elsewhere to determine his alleged incapacity

Further light may be thrown on the matter by reference to the great consolidating measure of UK electoral law, the Representation of the People Act 1983.7

“The Representation of the People Act 1983 consolidates the Representation of the People Act 1949 and various enactments amending it. That Act of 1949 was...

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