R Cope v Returning Officer for the Basingstoke Parliamentary Constituency
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wilkie |
| Judgment Date | 28 July 2015 |
| Neutral Citation | [2015] EWHC 3958 (Admin) |
| Docket Number | CO/2052/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 July 2015 |
[2015] EWHC 3958 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Wilkie
CO/2052/2015
Ms K Monaghan QC and Mr M Purchase (instructed by Leigh Day Solicitors) appeared on behalf of the Claimants Sarah Cope and Claire Phipps
Mr T Straker QC and Mr Patterson (instructed Basingstoke and Dean Borough Council) appeared on behalf of the Defendant
Sarah Cope and Clare Phipps are both members of the Green Party. Sarah Cope is a single mother, one of whose children falls within the autistic spectrum and has special requirements of her as mother. Clare Phipps suffers from a sleeping disorder and is disabled. Because of their positions as respectively a single mother and a person of disability they feel, and no doubt correctly, that they are not physically capable of undertaking the range of obligations which a member of Parliament would have to undertake to the extent necessary to enable them to present themselves to the electorate individually as candidates to be Members of Parliament.
In this respect they present themselves as representative, in the case of Ms Cole gender, in the case of Ms Phipps, those of disability. Nonetheless they have ambitions to serve politically and, in particular, as Members of Parliament and to that end proposed to stand as candidates for the Green Party in the election which took place on 7 May of this year. They proposed to do so on the basis that they would present themselves to the electorate as a single candidate but on the basis of a job share, both of their names being put forward as the Green Party candidate.
Anticipating that this would present a problem to the returning officer, on 26 March 2015 a letter was sent to the returning officer of the Basingstoke constituency at the Basingstoke Borough Council, setting out their argument that for them not to be able to put themselves forward on a job share basis as a candidate for parliamentary election would constitute a breach in each case of article 8 of the European Convention on Human Rights, Article 3 of Protocol 1 to the European Convention of Human Rights and Article 14 of that Convention, on the grounds that their family/private lives would be breached, their rights to take effective part in the political process by putting themselves forward as candidates for election would be breached and that they would be discriminated against on the grounds respectively of their gender, and their disability.
The returning officer responded, as she is required to do, promptly by a letter dated 1 April. The returning officer explained that from her point of view performing her duty as returning officer in accordance with the legislation, she would not be able to accept as a valid nomination a nomination of them both as a single candidate on a job share basis. She would, she indicated, be able to accept a nomination of each of them separately but not together.
Having canvassed the issue and obtained the response, Ms Cope and Ms Phipps duly sought to have their nomination accepted as valid for the parliamentary election by submitting a nomination paper which named both of them as a single candidate for the Green Party and giving both of their addresses as required. That was on 9 April. On the same day the acting returning officer responded to that nomination paper stating that the nomination was invalid because the particulars of the candidate were not as required by law and the paper was not subscribed as required. The election duly took place on 7 May. The Green Party did not have a candidate in the election in that constituency.
A claim for judicial review of the decision of the returning officer of 9 April refusing to accept the claimants' nomination paper for candidature at the 2015 parliamentary election was filled out on 1 May. It appears to have been received in the Administrative Court office on 6 May which was the day before the election. The claim for Judicial Review sought a declaration that the defendants' rejection on 9 April 2015 of the claimants' joint nomination for election to Parliament was unlawful and that in order to be compatible with the claimants Convention rights, the term "member" in section 1 of the Parliamentary Constituencies Act 1986 should be interpreted as including "two or more members together representing the constituency carrying one vote" and that the term "candidate" in schedule 1 of the Representation of the People Act 1983 should be interpreted as including two or more candidates who would, if elected, together represent a constituency and carries one vote.
There was no request in the claim form, or in any application, for the judicial review to be dealt with as a matter of urgency so as to ensure that the lawfulness of the decision of the 9 April was determined in advance of the election so that, if the claim was a good one, then the claimants could stand in the general election. It is implicit in the way in which the matter was set out and pursued that the claimants, having obtained a concrete example of their attempt to be joint candidates on a joint share basis as a member of Parliament being refused, should then seek declarations with a view to their potential future as candidates on that basis being clarified as a matter of law.
Their application for permission to seek judicial review was refused by Elisabeth Laing J on the papers on 16 June and today I have heard oral argument on the renewed application. I have also been addressed by Mr Purchase on an application to amend the claim in order to add a further form of relief, namely that, if need be, the court should make a declaration that the provisions of the 1986 and 1983 Act are incompatible with the European Convention on Human Rights insofar as they fail to make provision for there to be a joint candidacy of those who on grounds of disability or gender are impeded by the single member from standing on a joint basis or elected office as a Member of Parliament.
As Mr Purchase has pointed out, the question of the extent to which Parliament is properly representative of the population at large has been the subject of consideration by the Speaker's Conference in the form of the final report of the conference on Parliamentary Representation printed on 6 January 2010. The conference was asked to:
"consider and make recommendations for rectifying the disparity between the representation of women, ethnic minorities and disabled people in the House of Commons and their representation of the UK population at large".
The importance of the issue being the subject of the Speaker's Conference was highlighted at the outset of the report in the foreward which points to the rarity of Speaker's Conferences. The conference, subject of this report, was only the sixth to have taken place in the modern history of Parliament and the first since 1978. It took place in the context of what was described as a sombre background, namely the fact that many citizens feel themselves to be distant from Parliament and the wider democratic process. Amongst the things which needed to be done, as the foreward stated, "if the standing of Parliament in public life is to be restored" is to make sure that "the house reflects much more closely the diverse society in which we live".
In chapter 1 of that report entitled "The case for Widening Representation" under the subheading of "Justice", the following is stated at paragraph 5:
"5. Justice requires that there should be a place within the House of Commons for individuals from all sections of society. If anyone is prevented from standing for Parliament by reason of their gender, background, sexual orientation or a perceived disability, this is an injustice. The democratic right to stand for Parliament 'exists separately from any debate about the intellectual and behavioural merits of [individuals] as parliamentarians."
Unsurprisingly the makeup of the membership of the speaker's conference was on a cross-party basis. Mr Purchase has focused on the use of the word "justice" in this context, I anticipate because he would suggest that it provides an answer to one of the main planks of resistance put forward by the defendant to my granting permission. At the heart of the claim for judicial review, however, lies a specific decision, ie. a specific public officer, namely the returning officer, and the principal contention of complaints is that that decision was unlawful. They accept, as in my judgment they must, that the language respectively of schedule 1 of the Representation of the People Act 1983, which sets out Parliamentary election rules, and the Parliamentary Constituencies Act 1986, on the face of it, describe a situation which parliamentary constituencies are represented by a single member and that the arrangements set out in the rules envisage one person standing as a single candidate and, on the face of it, give no more room to there being a job share in which two or more people put themselves forward as a single candidate.
A very brief and cursory examination of the relevant statutory provisions exhibits the soundness of this. Section 1, subsection 1 of the Parliamentary Constituencies Act 1986 provides:
"There shall for the purpose of parliamentary elections by the county and borough constituencies (or in Scotland the county and burgh constituencies), each returning a single member, which are described in...
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