Friday, November 05, 2010

A Landmark Ruling

Making a false statement about a candidate during an election is a serious offence. It is very rare for charges to be brought for this offence, and rarer still for a court to rule that the charge is justified. But that has now happened.

A court has found that the Labour election campaign in Oldham and Saddleworth, where former Labour minister Phil Woolas was the candidate, put out leaflets making statments about his Lib/Dem opponent which were untrue. They have quashed his election, which unless this decision is overturned by Judicial Review, will mean a by-election.

Until a few years ago, if you had asked me to predict which party was most likely to be accused of dirty tactics, I would have said the Lib/Dems. It had been my experience that there is a majority of decent people and a minority of unprincipled rascals in all the parties, but that the dirtiest election campaigns were usually fought by the Lib/Dems.

But smearing your opponents, whether personally or politically, is wrong whoever does it, and I have been seriously unimpressed by some of the material Labour has put out over the past two elections.

And in particular, some of the leaflets which Labour put out this year in Oldham and Saddleworth were pretty extreme. When I saw them reproduced in press coverage of the case, I recall thinking "If Woolas's people cannot substantiate these charges, they richly deserve to be taken to the cleaners by the courts."

They couldn't, and they have been.

Some of the reaction to the news by Labour spokesmen have been interesting to say the least. Harriet Harman said that

"I don't think this is a reflection on the Labour Party as a whole."

Hm. Even though the new leader of the Labour Party recently appointed Woolas to the Labour front bench?

To be fair, she also annouced that Woolas was being suspended by the Labour party, that it was "no part of Labour's politics to try to win elections by telling lies" and that the party would not support any appeal.



Phil Woolas's lawyer said that

"Those who stand for election and participate in the democratic process must be prepared to have their political conduct and motives subjected to searching scrutiny and inquiry," he said.

"They must accept that their political character and conduct will be attacked.

"It is vital to our democracy that those who make statements about the political character and conduct of election candidates are not deterred from speaking freely for fear that they may be found to have breached electoral laws.

"This decision will inevitably chill political speech."



It is worth making clear that for a challenge to be successful under this law, the petitioner has to show not just that the accusations are untrue but that the person who made them had no reasonable grounds to believe them to be true. Woolas lost the case, not just because two High Court judges found that his campaign had made false statements about his opponent, but because they found that he knew that his campaign was making accusations for which there was no valid evidence.

To directly quote the court judgement,

"Having considered the evidence which was adduced in court we are sure that these statements were untrue. We are also sure that the respondent had no reasonable grounds for believing them to be true and did not believe them to be true."

You can read a summary of the judgement for yourself on the BBC website here.

If Labour got away with saying the kind of things they said in Oldham and Saddleworth, with so little evidence to support them that the Lib/Dems were able to persuade two high court judges, in court, to rule that Labour didn't believe what they were saying, it would have been a licence to tell lies with impunity.

Hence the statement by Mr Woolas's lawyer is equivalent to an argument that it is "vital to our democracy" that candidates should be able to tell lies about their opponents and that if you stand for election you are fair game for the filthiest muck that your opponents can think to throw at you.

Former Labour Lord Chancellor Lord Falconer said that this ruling will change the way future elections are fought.


If that means that people of all political parties have to make greater efforts to be certain that what they say about their opponents is actually true, I think that is a thoroughly good thing.

I have always believed in free speech within the law, but that is not incompatible with having and enforcing laws against libel, slander, or telling lies against rival candidates in an election, provided that to those laws are not drafted and enforced in a way which stifles reasonable expression of opinion.

There have been libel cases - those brought by the late Robert Maxwell and by Jeffrey Archer being the most notorious examples but by no means the only ones - which make me wonder whether it is far too easy to use this country's libel laws to suppress hostile views. But the Oldham and Saddleworth action was brought under different laws which required the complainant to achieve a much higher standard of proof.

Assuming that the decision is not overturned by judicial review, the by-election will be interesting.

2 comments:

Anonymous said...

So "Making a false statement about a candidate during an election is a serious offence".

What about lying to the electorate? - Nick Clegg and his colleagues comes to mind regarding his position on student fees, is this not "a serious offence" or does it only become an offence when a judge says it is.

Chris Whiteside said...

I'm not going to defend anyone who makes a firm promise to the electorate when it ought to be obvious that they might be unable to keep that promise.

That is at best poor judgement, and I was very interested to see that the most distinguished and respected Lib/Dem blogger, Mike Smithson, was highly critical of his own party, arguing that they have "only themselves to blame" necause it was "always likely that the pledge would have to be broken."

But breaking an election promise, although any honorable politician will try hard to avoid it, is not currently against the law.

Telling lies about your election opponent is. Specifically, section 106 of the Representation of the People Act 1983, which the court decided that Phil Woolas had broken, reads as follows:-


(1) A person who, or any director of any body or association corporate which—

(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."