Woolas loses – by a worrying whisker

by Carl Gardner on December 3, 2010

Phil Woolas has failed in his judicial review of the election court that found him guilty of illegal practices during the general election – here’s today’s judgment of the Administrative Court. So there will be a by-election, and Mr. Woolas will be barred from standing.

What’s remarkable though is how close he came to winning – I’m surprised he’s not, apparently, considering a further appeal.

First, he succeeded in persuading the court that judicial review is available against the decision of an election court (see para. 45 of the judgment); he also succeeded in arguing that he ought to be given permission in this case, even though another route under section 146 of the Representation of the People Act 1983 had earlier been available to him to refer a point of law to the High Court (paras. 59-62). He succeeded in persuading the court that judicial review extended not only to the question whether the election court exceeded its jurisdiction, but also to the question whether it misinterpreted the law, in this case section 106 of the 1983 Act (para. 58). Finally, he succeeded in his argument that one of the false statements he’d be found guilty of making – the claim that his opponent had broken a promise to live in the constituency – did not relate to his opponent’s personal character or conduct, and so was not illegal (paras. 117-119).

Even on the two other statements, claims that Mr Woolas’s opponent wooed “the extremist vote” and refused to condemn extremists, he was not far from succeeding in his argument that these claims related to his opponent’s political, rather than personal, character. It seems clear from the judgment that a mere claim that your opponent has wooed extremists and failed to condemn them is not an illegal practice as a general rule, even if you know those claims are false. What took Phil Woolas over the line was simply that, in the particular context, his leaflets amounted to a claim that his opponent was the type of man who condones, or refuses to condemn, threats of violence (see paras. 121 and 122). This, and this alone, made the claims personal rather than political, and so against election law.

So a judgment that recognises a large space for robust political argument. If this approach is followed in future, few successful candidates will find themselves in Phil Woolas’s position. As long as you don’t either knowingly or carelessly accuse your opponent falsely of condoning serious crime, you’re probably within election law.

But there’s a worrying aspect to this, if you think about it. What it means is that mainstream candidates – those who get nowhere near advocating violence or serious wrongdoing – are fair game even for lies about their political positions. But if your opponent is a fringe candidate who’s seemed to support political violence such as terrorism, you’d better make sure you have good evidence for anything you say about his attitude to violence. Fail to take enough care, and you may find yourself out of Parliament.

As interpreted by the Administrative Court today, therefore, the law actually favours those extremists who appear ambivalent or evasive about their opposition to terrorism. They may be able to safely say almost anything about their opponents  – perhaps that they “supported an illegal war” for instance, or “turned a blind eye to torture”, both of which seem “political hyperbole” (see para. 120) rather than personal (the court said such a claim cannot be both – see para. 111). And if I’m right, they may safely say these things even if they know they’re false. Accuse such a candidate of condoning violence, though, and you do so at your legal peril.

This has to be wrong. Parliament must amend the law.

{ 2 comments… read them below or add one }

1 Ben December 3, 2010 at 22:42

Parliament must repeal the law. The electorate must be the judge in such cases.

2 Mark Pack December 4, 2010 at 16:07

Interesting analysis.

I don’t quite agree that it is “fair game” in the way you say, because there is still the option to sue someone for libel or slander. What those actions can’t do is overturn an election result, but their existence means we have a two-tier process in effect – very narrow grounds for taking the major step of overturning an election and much wider grounds (perhaps even too wide bearing in mind libel law!) for taking other action.

I also think that it is right that an MP facing the end of their political career should have a chance to appeal to another level over whether or not the law was properly followed. I take your point about paras 59-62, and perhaps that would have been the better route, but in principle it seems to me right for there to be a route of some sort bearing in mind how significant the impact of an adverse ruling can be.

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