Following the Guardian story about James Delingpole and Chris Heaton-Harris an interesting legal question arises: was James Delingpole, although never nominated, a candidate for the Corby by-election? The question is relevant because the government minister, John Hayes (whose views on wind-farms seem pertinent – as discussed here) has stressed in a response to The Guardian that “James Delingpole was never a candidate in this byelection.” (see response 4 in this article); and James Mackenzie, from the Better Nation team, has reported the conduct referred to in the Guardian piece to the police as potentially involving electoral offences.
Before getting to the law it is worth looking at the public utterances of Mr Delingpole. In The Spectator in early September he declared it was time to face the voters. The post has been deleted although a copy is found here. (h/t Tony Hatfield) His post ended with the declaration “I hereby announce my intention to stand in the Corby by-election as the anti-wind farm candidate. Not in my back yard. And not in yours either!” For a page that is no longer on the net it certainly has a lot of links, and got a lot of publicity. It is quoted by Guido Fawkes’ blog; the New Statesman; the Northants telegraph ; and others. A search reveals a few pages quoting his declaration. There was a website set up for his campaign, Delingpole for Corby. This has a number of stories (purporting to be by Mr Delingpole) in a news section. The first news entry is on 28 September 2012. And you can get a copy of Delingpole’s manifesto for Corby (pdf). And – if you are a big fan a window sticker. Delingpole also declared his candidature in the Daily Telegraph(where, I understand, he blogs). In his Telegraph piece he states, ”
Why on earth am I standing as an independent candidate in the Corby by-election? The very last thing I want is to be an MP and, in any case, I’d make a ruddy useless politician – as I discovered on my first day of campaigning. Because I’m standing on a single issue ticket as the anti-wind farm candidate, I’m concentrating my efforts on those three bits of East Northamptonshire most threatened by wind developments: Molesworth, Chelveston and Barnwell Manor. So my election agent took me on a recce to meet some of my prospective voters.” This implies he was campaigning and had an election agent. But, Mr John hayes assures us that Mr Delingpole was not a candidate in the by-election.
It occurred to me that despite Mr Delingpole’s utterances in national newspapers and magazines that he was a candidate Mr Hayes may be relying on some legal nicety to suggest that Mr Delingpole was not a candidate. The law, however, tends to support the view that – albeit never nominated – he was a candidate.
For the purposes of election campaigns “candidate” is defined in the Representation of the People Act 1983. The definition section in the 1983 Act is s 118. This defines “candidate” as construed in accordance with s 118A. This provides :
“(2)A person becomes a candidate at a parliamentary election—
(a)on the date of—
(i)the dissolution of Parliament, or
(ii)in the case of a by-election, the occurrence of the vacancy, .
in consequence of which the writ for the election is issued if on or before that date he is declared by himself or by others to be a candidate at the election, and
(b)otherwise, on the day on which he is so declared by himself or by others or on which he is nominated as a candidate at the election (whichever is the earlier).”
The date a person becomes a candidate is the date he or she declares his or her candidature, or the date the vacancy arises in the event that he or she has declared that he or she will be a candidate. Well, Mr Delingpole’s public utterances seem clear. In early September in The Spectator he declared that he would stand. By 17th September in the Telegraph he was talking about a campaign that was up and running. Under the terms of s 118A Mr Delingpole seems to have been a candidate.
Now if you look at the comments from Wightpaint on this Guardian post he seems to imply that unless nominated you can never be a candidate under the 1983 Act. In his biography on The Guardian site he states he used to be an election agent and certainly the way in which people operate in practice is that candidates are those nominated – but the situation in the Delingpole case is unusual. Someone declares he is standing, campaigns, prepares a manifesto, and launches a website but is not formally nominated. In that case can a person be a candidate?
I would argue that he can. One example should show that candidate in Part II of the 1983 Act does not mean a person nominated to be a candidate.
Under the election rules which are found in Schedule 1 to the 1983 Act the process of nomination is considered. Under these rules, a candidate must consent to his or her nomination under Rule 8. If a candidate does not consent to his nomination then he or she cannot validly be nominated. It wightpaint is correct in his interpretation of “candidate” in Part II of the 1983 Act this would imply that a person that has not consented to nomination could not be a candidate for the purposes of the campaign rules, including the expenses rule. However, s 83 of the 1983 Act provides that certain expenses rules do not apply to a person declared to be a candidate by others, where that person has not consented to the declaration. If wightpaint is correct in his interpretation of “candidate” s 83 would be otiose. But it is there. It is there because the legislature acknowledges that a person may be a “candidate” under Part II of the 1983 Act without being a person nominated under Schedule 1 to the Act.
The conclusion then seems tolerably clear. James Delingpole was a candidate in the Corby by-election. Mr Hayes is wrong in his reply to The Guardian. The full implications of Mr Delingpole being a candidate for Mr Delingpole and for the Conservative party will no doubt be teased out by others.