Tuesday, 9 November 2010

The Woolas election judgement

On Friday, an Election Court composed of two judges of the High Court found Mr Woolas guilty of illegal election practice during the May general election, contrary to section 106 of the Representation of the People Act 1983. The automatic consequence of this, under section 159(1) of that Act, is that Mr Woolas's election is void and a by-election will have to be held to fill the vacancy. In addition, under section 173 of that Act as amended by section 136 of the Political Parties, Elections and Referendums Act 2000, Mr Woolas will not be able to stand again for 3 years.

Much has been said, some of it it must be said of a self-serving nature by politicians, that this judgement will stifle honest political debate at election time. That is unlikely. Very few matters are covered by section 106 of the 1983 Act, and none of them are concerned with things that could reasonably be described as political.

The relevant parts of section 106 provide as follows:
"(1) A person who ... —

(a) before or during an election,

(b) for the purpose of affecting the return of any candidate at the election,

makes or publishes any false statement of fact in relation to the candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, that statement to be true."
The important point here is that not only must the candidate concerned have attacked a rival's personal character or conduct in order to affect the outcome of the election, but he or she must also either have not believed or had no reasonable grounds to believe the subject matter of the attack. In short, it is concerned with smearing opponents by telling lies which go to matters of fact and conduct rather than to politics and political views. The reasonable assumption behind section 106 is that we would not want to be represented by people who think that that kind of behaviour is acceptable.

The things done by or on behalf of Mr Woolas which the election court considered fitted this description were the distribution of an election leaflet called The Examiner, in which the court held Mr Woolas "made a statement of fact, the meaning of which was that the petitioner attempted to woo, that is to seek, the electoral support of Muslims who advocated violence, in particular violence to [Mr Woolas]", and the distribution of another leaflet called the Labour Rose, in which the court held that "he made a statement of fact the meaning of which was that the petitioner had refused to condemn extremists who advocated violence against [Mr Woolas]".

The election court considered that alleging that a rival candidate sought support from those who advocate violence against another candidate and refused to condemn such violence comprised an allegation concerning personal conduct and character, and that Mr Woolas neither believed these allegations nor had any reasonable grounds for believing them.

The election court also found that a third illegal statement had been made by Mr Woolas against his opponent, namely that in "an earlier election address the respondent had made a statement in fact, namely, that the petitioner had reneged on his promise to live in the constituency. ... It suggests that [the opponent] is untrustworthy. The statement was false and [Mr Woolas] had no reasonable ground for believing it to be true and did not believe it to be true."

The last matter (Mr Woolas's allegation that his opponent had reneged on a promise to live in the constituency) does not seem the most egregious of acts, even if it were to be a lie told in the heat of battle, and the first two falsehoods referred to by the election court were perhaps on the borderline of the distinction between illegal character assassination and robust political argument. Mr Woolas yesterday applied to the High Court for permission to proceed by judicial review against the election court's decision but this was rejected by the judge considering the application on the ground that the election court, constituted as it is by judges of the High Court on the election panel, was not subject to judicial review. It appears the matter will now be headed for the Court of Appeal.

However, the quashing of the election court's decision will be difficult to achieve. The findings of fact by the election court are ordinarily conclusive (section 144(1) of the 1983 Act), and the extent to which the Court of Appeal would be willing to consider this is unclear. Applying the principles of Anisminic v Foreign Compensation Commission [1969] 2 AC 147, Mr Woolas would probably have to persuade the Court of Appeal that either the election court erred on a substantial question of fact (about which it should be noted that the election court had access to the local labour party's e-mail records, so that is going to be a considerable ask) or on a substantial question of law, or that it reached a view on the facts concerning the illegal nature of the matters done by or on behalf of Mr Woolas that no reasonable election court could reach. This is going to be hard to do.

No comments: