What if a parliamentary candidate did not exist?

The latest odd constitutional law question which nobody has really thought of asking before

What would be the legal position if a parliamentary candidate did not exist?

This question is posed because of concerns currently expressed as to whether Reform Party candidates actually existed or not.

In this internet age, there will be suspicions that a person does not actually exist if they have no social media or other online presence. This sad fact probably tells us more about this internet age than it does about any (wise) person who has kept themselves offline.

A dishonestly presented fictional candidate would be such an extraordinary event at a general election that there must be a better explanation than it having happened. On this basis, this post makes no allegations of wrongdoing in any way. Instead, this post is for the public understanding of law.

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However, such fictional candidates are not without precedent.

One tweeter unearthed this example from 2017:

The BBC news report indicates that the defendant was convicted not of any offence under election law, but under the general fraud offence of using a false instrument with intent:

Another tweeter, however, has pointed out that there is a corresponding offence under section 65A(1)(a) of the Representation of the People Act 1983:

This provides that it is a corrupt practice if a person causes or permits to be included in a document delivered or otherwise furnished to a returning officer a statement of the name or home address of a candidate at the election which he knows to be false in any particular.

A person providing a name and address of somebody who does not exist would presumably be caught by this offence.

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The one “person” who cannot be prosecuted, of course, is the fictional candidate.

This is because they do not exist.

This is not just an amusing point, for much of the Representation of the People Act (understandably) presupposes the candidate does actually exist as a person. For example, here is the power for an election to be voided for general corruption:

Would this section (and other similar sections) still apply if there was not actually “any person” for the purpose of that clause?

The determination of that question would be an interesting judgment to read.

Would the lack of a person as a candidate be the basis for any election to be voided? If so, how? And, in what circumstances?

The wording of various provisions of the 1983 Act may have to have (non-existent) words implied in to them (“purposeful interpretation” as it is called) so as to deal with such a (non-existent) candidate.

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Another interesting point is that it seems that proof of identity for a candidate may be now practically at a lower threshold than for an elector.

Here is the Electoral Commission guidance for returning officers (hat-tip):

That footnote “2” in turn refers to a couple of cases.

Of the first case from 1977, Westlaw tells us that it is authority that where there is nothing on the face of the nomination paper to raise a doubt as to the identity of the nominee, a returning officer is not entitled to investigate the authenticity of the name appearing thereon before deciding whether to accept or reject it.

(The second case, from 1975, turns more on the wording of the sub-rules of a local government statute.)

If this 1977 case is authority for the general position stated by the commission then it does seem a remarkable discrepancy that a voter has to prove their identity whilst a candidate does not.

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The above post is based on research overnight, and on the help of other tweeters (which I gratefully acknowledge), as this simply is not part of my general constitutional law knowledge. It is not a question I have ever considered before.

As such, it would be wonderful if you would supplement (or correct) the above, if you have expertise in this area.

And, if you can, you do not need to prove your identity.