Many modern constitutional systems, despite the prevalence of adult suffrage, forbid certain classes of person from participation in the most important aspects of the democratic process, whether by withholding the vote from them or by denying them the right to hold office. While the former has received a considerable amount of attention in the literature, the latter has been comparatively neglected.
In a recent article I aimed to redress this imbalance. The article – “Constitutional Disqualification: A Critique of English and English-Derived Law” published in the Vienna Journal on International Constitutional Law, Volume 14, Issue 2, October 2020, at pages 167-197 – starts by offering, quite generally, a taxonomy of such bans. It then appraises, with particular reference to the constitutions of the English-speaking world, some of the most common grounds for disqualifying persons from holding elective office and the various purposes that these might be thought to serve.
These include: (i) direct disqualification of certain categories of state officials to guard against the undermining of constitutional government; (ii) reverse disqualification to safeguard the independence of certain organisations from political involvement; (iii) punitive disqualification of those deemed to have failed in their civic obligations; (iv) disqualification to safeguard governmental institutions against financial corruption; and (v) exhibiting signs of severe illness.
A major theme of the article is the question of whether some grounds of disqualification, notwithstanding their long history, can be justified. I argue that only the most compelling of reasons for disqualification from office should be accepted since all such barriers detract from the democratic ideals of universal suffrage and equal access to positions of power. This follows the stated premise of John Stuart Mill for exclusion from the franchise: ‘no persons disqualified, except through their own default’. However, it is doubtful whether the exceptional cases offered by Mill could satisfy this test. Many of the grounds of disqualification surveyed in the article that are founded on law and have been inspired by British antecedents are difficult to defend on general principle, and require critical reassessment.
In considering the history of constitutional disqualification from office, a number of unusual points of detail emerge. As a way of highlighting some of these points, and to tempt readers of this blog into reading the full paper, I offer a short pre-Christmas quiz on constitutional disqualification.
Those who to wish take the quiz should look away after reading Question 6. The answers will then be found below, along with references to the pages of direct relevance in the article.
1. How did disturbances in the U.S. insurance market threaten the survival of John Major’s parliamentary majority?
2. Which occupational group was statutorily denied the vote for much of the nineteenth century – even if its members qualified for the vote in all other respects?
3. We know why Anglican bishops occupy seats in the House of Lords, and that leading figures in the Methodist and Jewish faiths (Donald Soper, Jonathan Sacks) have taken up peerages. But why no Roman Catholic clergy? What, in any case, is reverse disqualification?
4. What illiberal provision, limited to men, was slipped into the Representation of the People Act 1918?
And for Separation of Powers aficionados –
5. What is the “Saxbe fix” and how does it relate to the Separation of Powers in the USA?
6. Which two different statutory provisions, similar in content and overlapping to some extent, that limit the size of HM government are frequently confused – even by experienced parliamentarians?
1. A number of Conservative MPs, approximately equivalent to the size of John Major’s majority, could have been made bankrupt, and their seats consequently vacated. As “Lloyd’s Names” they were affected by the considerable insurance losses sustained in the USA by Lloyd’s of London. See pages 186-189.
2. Police officers – until the enactment of the Police Disabilities Removal Act 1887. See pages 178-179.
3. They are prevented from doing so by the Roman Catholic Code of Canon Law. As such it is an example of what has been termed “reverse disqualification”: that is, disqualification that is imposed, not by the law of the land, but by the rules of a private organisation. For this and similar examples see pages 180-182.
4. Section 9(2) of the Representation of the People Act 1918 denied the vote to conscientious objectors in the First World War for several years after the conclusion of hostilities. It did likewise for those in receipt of poor relief or “other alms”. See pages 189-190.
5. This derives its name from the mode of appointment in 1973 of Senator William Saxbe to the post of Attorney-General straight from the U.S. Senate, in circumvention of the difficulties posed by Article I, section 6 of the Constitution (which forbids the appointment of a Senator or a Representative to any civil office of the United States for which the salary had increased during the period of time for which they were elected to Congress). See pages 194-195.
6. The provisions are section 2(1) of the House of Commons Disqualification Act 1975 (which limits the number of ministers sitting in the House of Commons to 95) and the Ministerial and other Salaries Act 1975 (which limits the number of ministers who may receive a salary irrespective of where they sit). See pages 175-176.
Joseph Jaconelli (email: email@example.com)
(Suggested citation: J. Jaconelli, ‘Constitutional Disqualification’, U.K. Const. L. Blog (24th Nov. 2020) (available at https://ukconstitutionallaw.org/))