Analysis: Phil Woolas loses his seat and has judicial review refused

Robert Elwyn Watkins v Philip James Woolas  [2010] EWHC 2702 (QB) 5 November 2010- read judgment

Update – read our 3 December 2010 post on his defeat in the administrative court

The Election Court has ruled that the Labour MP for Oldham knowingly and deliberately misled the constituency and as a result his election is void under Section 106 of the Representation of the People Act (1983).  Permission for judicial review of the decision has been refused.

The provision of the 1983 Act makes it an offence for anyone to publish “any false statement of fact in relation to the candidate’s personal character or conduct” to prevent them being elected “unless he can show that he had reasonable grounds for believing, and did believe, that statement to be true”.
During the contest for the last election the respondent claimed, in a pamphlet and various mocked-up newspapers, that the petitioner  had attempted to woo the vote of Muslims who advocated violence, that he had refused to condemn extremists who advocated violence against the respondent, that there were shady funding deals behind his campaign and that he  had reneged on his promise to live in the constituency.

The two High Court judges who convened as a special Election Court considered that, for the purposes of the respondent’s right to freedom of expression under Article 10,  the restrictions and penalties on freedom of expression contained in the RPA 1983 were “obviously” prescribed by law according to Article 10(2). These restrictions were directed to the objective of protecting the reputation and rights of others, and to the further protection to constituencies and to candidates (The North Division of the County of Louth (1911) 6 O’M & H 103) . The mischief against which this statutory provision was directed was an abuse of the right of free discussion by the dissemination among a constituency of false statements of fact, written or spoken, in relation to the personal character or conduct of a candidate.

Article 10 was not the only Convention principle in play here; Article 3 of the First Protocol, protecting the right to free elections, had an important role. The Court observed that the primary purpose of the RPA was the protection of the constituency against acts which would be fatal to freedom of election:

There would be no true freedom of election, no real expression of the opinion of the constituency, if votes were given in consequence of the dissemination of a false statement as to the personal character of conduct of a candidate

There was also a question of fair trial as counsel for the respondent advanced the argument that the obligation on him to discharge the burden of proof was in breach of Article 6, since the standard of proof  for “illegal acts” under Section 106 RPA is not on the balance of probabilities but is the criminal law standard of proof beyond reasonable doubt. But  the Court saw no difference between this and a defendant in a rape case having to discharge the evidential burden of adducing evidence of his belief in the complainant’s consent.

After  setting out a heavily detailed analysis of all the statements made by the respondent the Court came to the conclusion that these were indeed statements of fact in relation to the personal character or conduct of the petitioner which he had no reasonable grounds for believing were true and did not believe were true. His election was consequently declared void, pursuant to section 159 of the RPA 1983, because the respondent was personally guilty of an illegal practice. Woolas was also ordered to pay all costs.

Comment

This ruling has come in for some hefty criticism. Quoted in the Guardian, Woolas’s solicitor Gerald Shamash said:

In reaching this decision the court adopted an interpretation of conduct detailed in a case nearly 100 years ago when considering a 19th-century statute. Those who stand for election must be prepared to have their political conduct and motives subjected to searching scrutiny and inquiry … This decision will inevitably chill political speech.

The Times has also intoned against the decision in the op ed page the day after the ruling. It pointed out that there are laws to regulate behaviour during election campaigns that are less damaging to free expression:

If Woolas had said anything libellous or written anything slanderous, Mr Watkins could have taken legal recourse, which he still threatens to do. If Woolas had said anything inflammatory, this country has tight legal restrictions on incitement to hatred, especially when racially aggravated. But it is quite wrong to extend the use of legal protection into the claim and counterclaim of political discourse.

Application for judicial review of this decision has been refused on the basis that the judges convened as an Election Court were acting in their capacity as High Court judges, and therefore not amenable to attack under any of the prerogative orders. This is something of a lost opportunity, as a cool discussion in the Administrative Court may have revealed the contours of the clash between free speech and electoral honesty without the clutter of evidential details that render the present judgment so curiously unsatisfactory.

Without this debate, there is always going to be a whiff of prejudice hanging around the Phil Woolas affair. The problem with this particular electoral spat is that it was packed with verbal ammunition – such as the proximate use of the words “Muslim” with “extremist”, “violence” and “immigration”, and the explosive combination of “Israel” , “arms” and “Palestine”. Fair game in the war for voters, most might say, and sacking a member of parliament for it really does render suspect any content-based conclusion – no matter how loftily couched in the language of electoral propriety. Without the benefit of judicial review it remains to be considered whether the man has been sacked, not because of electoral fairness, but on the basis of the much more mundane contingencies of the social world – that there are some things that can be said in public, and not others.

It is interesting to speculate how such a case might have been determined in the United States, with its rigorous protection of free expression under the First Amendment, particularly in the political context. The classic formulation by Justice Powell in a 1974 case, Gertz v Robert Welch Inc, reflects this uncompromising position:

Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges, but on the competition of other ideas” (418 U.S. 323 (1974)

That is, an idea may seem pernicious, even to persons in high positions, but the First Amendment prohibits them from making such judgments, which must be left to time and the marketplace of ideas. So has the procedural mechanism of the Representation of the People Act become hostage to judgments of substance? Is it possible to devise such a mechanism which never does?

It could be argued of course all the judges have done under the RPA is disciplined a politician for making untrue statements of fact. But it was the nature of those statements, not their falsity, which caused the fuss in the first place. Woolas was simply drawing on the current sociological fact that if you want to demonise someone or something, you associate it with extremism, threats of violence, uncontrolled immigration and so on. What if the demonised agenda in an analogous campaign were renewable energy or vote reform? Would accusations of association with such programmes have led to punishment by exile under the RPA? Food for thought, and perhaps if Mr Woolas is successful in his fresh application for judicial review there may be a more enlightening discussion of speech-induced harms.

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4 thoughts on “Analysis: Phil Woolas loses his seat and has judicial review refused

  1. Two points:

    1. I don’t see how it can be right that candidates standing for elections have less free speech rights than they do when they have become a Member of Parliament.

    2. As favourable as I view America’s First Amendment, Powell is being a little over the top in that quote. I mean, even the US has defamation laws. So there is such a thing as a “false idea” which judge’s sometimes adjudicate upon in America.

  2. @Alex: We expressly grant a greater degree of freedom to Members of Parliament (Parliamentary Privilege) than to anyone else. Whether we should – cf John Hemming’s spat with Withers, among other incidents – is a different question; the fact is that we do. Crucially, parliamentary privilege does not extend to extra-Parliamentary statements – including leaflets – nor does it (despite the frankly misguided submissions from Shamash et al on behalf of the Expenses Three) extend to “other-things-MPs-do-as-MPs”.

    @Rosalind: I am having some trouble discerning your argument in the latter half of this piece, and it seems somewhat confused.

    Are you, firstly, saying that the Administrative Court should have permitted a judicial review of another part of the High Court merely because it might have allowed a more clinical discussion of whether the legislation gets the balance right between competing interests? This would fly in the face of the very theoretical basis of Judicial Review, and before it the perogative writs. It would – in the truest sense – amount to judicial law making.

    Moreover, it feels instinctively like special pleading. Woolas had the opportunity to make HRA or ECHR applications prior to the hearing of Watkins’ petition (I assume any argument as to the validity of the underlying legislation here must be founded on the basis of Convention rights). Such applications could have been appealed all the way to the Supreme Court if necessary – as Morley et al have just done on their Parliamentary Privilege argument – prior to the substantive hearing. If Woolas’ legal team made serious strategic or tactical errors in their defence of him by failing to make such applications, it is absurd to suggest that our judicial system should be rearranged for their benefit. If they made such applications – and I am not aware of the Court of Appeal or Supreme Court considering such – then it is difficult to see what basis there could now be for a judicial review.

    There could be serious constitutional, to say nothing of procedural, consequences if the High Court finds itself conducting judicial reviews of its own decisions. If the Election Court is subject to JR, it is difficult to see why the decisions of, for example, the Technology and Construction Court, the Family Court, or any other specialist division, should be immune.

    This situtation arises, of course, because the RPA83 affords only narrow opportunities for appeal. This is not necessarily ideal in the abstract, but this, like the rest of the legislation, is a balancing of the interests of all parties.

    And your piece above appears to treat the most important party – the constituents of Oldham, lied to, and now denied short or medium term parliamentary representation for Mr. Woolas’ benefit – as passive, mere consumers of other people’s speech. Their interests – indeed their fundamental right to democractic representation – demands that the process of the Election Court be expedited.

    There may be more merit in the suggestion that it is what Woolas said, not the veracity of it, which ultimately determined his fate. This is directly supported by the Election Court’s own judgement, which makes clear that expelling Woolas merely for the the lesser “smear” against Watkins – that he did not live in the constituency – might have been disproprotionate. However, it is also entirely reasonable to argue that the RPA83, by making no such distinction between the substance of different false statements, prevents exactly the “whiff of prejudice” you refer to above.

  3. Surely the point is that Woolas’s false statement materially influenced the election result in his favour; his statements were made out of naked and unprincipled ambition and have little to do with Mr Woolas’s right to express his beliefs or opinions.

    I believe the Election Court was quite right to overturn the election result because it was fought using illegal tactics. The law is quite clear on that point. Whether Woolas should be barred from standing in the consequent bye-election is another matter. Given the public’s current distaste for the Lib Dems, it is quite probable that Woolas would win, were he be allowed to stand, without resorting to illegal tactics.

    I think Harriet Harman has come out of this episode very well, as she did with the MPs’ expenses scandal. She is a paragon of honesty, something that is rare amongst the political class.

  4. I hope that this will also be a signal to other politicians to clean up their acts! Mr. Woolas was a prime example of someone who had played with the media as a propagandist not only in this issue but in several other issues as well. His direct involvement in the creation of the UKBA as a politically motivated government institution also needs investigating as they and Woolas together have twisted and misrepresented much while playing the political card of race and immigration.

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