In finding the Labour MP for Oldham East and Saddleworth guilty of an illegal practice on November 5, two judges certainly put a rocket under parliament. Mr Justice Teare and Mr Justice Griffith Williams declared the election of Phil Woolas void because he had made false statements of fact — which he had no reasonable grounds for believing to be true — about the personal character or conduct of another candidate.
That the law bans deliberate lying about the personal character of one's election opponents seemed to come as something of a surprise to two experienced back-benchers.
"It is for the people, not the judges, to evict members of parliament," said the Conservative MP Edward Leigh. "My worry is that if the judgment is allowed to stand, robust debate during elections will become virtually impossible."
The Labour MP David Winnick shared his concern "that the decision about whether the electorate wanted that particular member to serve had been taken out of their hands and given to the judges".
I find it curious that these long-serving MPs should be so unfamiliar with the laws under which they were elected. It's not as if the legislation is particularly new: it has remained largely unchanged since the 19th century. To be fair, parliamentary elections are rarely challenged. But that is because election petitions are very costly. They must also be lodged, with supporting evidence, no more than 21 days after an election.
Some commentators have argued that statements about one's political opponents must amount to attacks on their political beliefs rather than their personal conduct. Others have suggested that candidates should be free to say what they like about an opponent's personal character. Both Leigh and Winnick seem to think that the decision on whether an individual candidate has behaved unlawfully should not be one for the judges. Very well: if the two MPs want parliament to take these powers back, they are well placed to promote a change in the law. In the meantime, they should not criticise the judges for applying it in this case.
Elwyn Watkins, the Liberal Democrat whom Woolas defeated by just 103 votes, had complained to the court about election leaflets distributed to voters by Labour. One of these, designed to look like a newspaper, was found to have alleged that Watkins had attempted to woo the extremist Muslim vote. In the court's view, "to say that a person has sought the electoral support of persons who advocate extreme violence, in particular to his political opponent, clearly attacks his personal character or conduct".