Analysis: Phil Woolas loses his seat and has judicial review refused
10 November 2010
Robert Elwyn Watkins v Philip James Woolas  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.
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.