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”.
Woolas produced no evidence in support of this allegation. After examining it in great detail, the judges found it not true. Nor was it true that Watkins had reneged on his promise to live in the constituency, a claim that suggested he was untrustworthy. The Labour candidate had no reasonable grounds for disbelieving his opponent’s announcement that he had “recently moved into a lovely terraced house in Delph”.
A finding by the judges that Woolas was personally guilty of an illegal practice meant that his seat was now vacant. That was confirmed by John Bercow, the Speaker of the House of Commons. But Bercow delayed calling a by-election while Woolas tried to overturn the election court’s ruling.
This was never going to be easy. The Representation of the People Act 1983 says that an election court’s decision “shall be final to all intents as to the matters at issue on the petition”. Perhaps we should not be surprised: election law dates back to before the creation of the Court of Appeal. But the idea of an unappealable trial court is pretty unappealing. So, in recent years, the judges have agreed to consider applications for judicial review of decisions relating to local elections.
This requires some explanation. To lawyers, “judicial review” is a remedy rather than a process. The courts grant judicial review when they overturn the decision of an inferior body that has exceeded its powers or exercised them inappropriately.
That’s fine in the case of local elections. Petitions are heard by part-time judges, known as election commissioners. They’re pretty inferior. But challenges to parliamentary elections are heard by High Court judges. They sit as what’s called a court of record. And the generally held view is that such a court is not susceptible to judicial review.
Even if the courts were to entertain an application from Woolas, it would not get him very far. Judicial review deals with the decision-making process, not the decision. Judges would consider whether the election court had conducted itself in the right way, not whether it reached the right answer. Woolas would be well advised to step aside now.