Penalties for omission to take the oath
8.28By the Parliamentary Oaths Act 1866, s 5, any Lords Member voting, or sitting in the House of Lords without having taken the oath, is subject, for every such offence, to a penalty of £500, to be recovered by action in the High Court. Any Member of the House of Commons who votes as such, or sits during any debate after the Speaker has been chosen, without having taken the oath, is subject to the same penalty, and their seat is also vacated in the same manner as if they were dead.1 The £500 penalty may be recovered upon the suit of the Crown alone.2
In the Lords, if a Lords Member attends the House or votes without having taken the oath or affirmed, their attendance is not recorded and their vote is invalidated, but no further action is taken.3 In the Commons, however, it is necessary to move a new writ immediately the omission is discovered, as the Member's seat is vacated.4
In the Commons, a Member may vacate their seat, before taking the oath, by being appointed to the Chiltern Hundreds or Manor of Northstead.
In 1999 the European Court of Human Rights held, unanimously, that the obligation to take the oath did not contravene the terms of the European Convention on Human Rights.5
By long custom, a Member of the Commons who had not taken the oath was entitled to all the privileges of other Members, save salary.6 On 14 May 1997, however, Speaker Boothroyd ruled that, in future, the services available to all other Members from the House service would not be open for use by Members who had not taken their seats by swearing or by affirmation.7 This situation persisted until the House resolved on 18 December 2001 that, with effect from 8 January 2002, Members who had ‘chosen not to take their seats’ might use the facilities of the House and the services of its departments, and claim support for their costs as set out in the Resolution of 5 July 2001 relating to Members' allowances, insurance etc and allowances for travel within the United Kingdom for Members, their families and staff.8 In May 2010 the responsibility for Members' pay and allowances was transferred to IPSA. Paragraphs 4.12–4.15 contain information about Members’ expenses.
- 1. In 1924, for example, the seat of Major Jacob Astor MP (Dover) was vacated after he was found to have sat and voted in the House without having taken the oath. Major Astor was returned unopposed in a by-election held six days after the writ was moved for a new election, HC Deb (6 March 1924) 170, cc 1563–65.
- 2. Bradlaugh v Clarke  8 App Cas 354.
- 3. Pursuant to a recommendation of the Procedure Committee (Second Report HL 58 (1993–94)), LJ (1993–94) 418, 422, 682. Previously, when peers had neglected to take the oaths from haste, accident, or inadvertence, Acts of indemnity were passed to relieve them from the consequences of their neglect: 45 Geo 3, c 5 (Lord J Thynne), 56 Geo 3, c 48 (Earl Gower), 1 Will 4, c 8 (Lord R Grosvenor), 5 Vict, c 3 (Earl of Scarborough), 1880 (Lord Plunket and Lord Byron). All are private Acts and none are printed.
- 4. CJ (1805–06) 148; ibid (1812) 286; ibid (1813–14) 144; ibid (1816–17) 42; ibid (1924) 74. In Bradlaugh's case, however, the Chiltern Hundreds (see para 3.22 ) were accepted.
- 5. McGuinness v United Kingdom (1999) ECHR No 39511/98.
- 6. Members of the Commons who have not taken the oath have been nominated to committees in exceptional circumstances, CJ (1714–18) 59; 6 Chandler Deb 19; Parl Hist (1714–22) 7, c 57; 2 Hatsell 88 n; CJ (1857–58) 162, 167; Parl Deb (1858) 150, c 430. In 1880, John Bright was appointed to the Parliamentary Oath Committee, on which he served and voted, though not then having made an affirmation.
- 7. See HC Deb (1997–98) 294, cc 35–36; ibid (2001–02) 370 c 12. Speaker Boothroyd's statement was challenged, first in the High Court of Northern Ireland and then on appeal to the European Court of Human Rights but was upheld: McGuinness v United Kingdom (1999) ECHR No 39511/98.
- 8. See HC Deb (2001–02) 377, c 151 ff; CJ (2001–02) 274.