After Phil Woolas: the threat to democracy
A barrister argues that an election whose results can be overturned by judges is not a democratic one.
The British Labour Party MP Phil Woolas was thrown out of parliament because of things that he said. His court hearings, before an Electoral Court and an appeal court, were not concerned with an MP who had stuffed ballot boxes with phantom votes or who had bribed the returning officer to falsify the result (matters on which a court could properly be involved). Rather, Woolas was found to have made false statements of fact regarding his opponent’s personal character or conduct; in essence, he was found guilty of lying about his opponent’s character.
To be precise, the Electoral Court found Woolas to have made three false statements of fact regarding his Liberal Democrat opponent, Elwyn Watkins, during the May 2010 General Election campaign. Namely that Watkins (i) had attempted to woo the vote and seek the electoral support of Muslims who advocated violence; (ii) had refused to condemn extremists who advocated violence against Woolas; and (iii) had reneged on his promise to live in the constituency. The appeal court set aside the third of these findings, meaning that Woolas was ultimately stripped of his election victory for falsely accusing his opponent of seeking the support of ‘Muslim extremists’.
Many feel uncomfortable about the character of Woolas’s election campaign. Some have used the spotlight that was turned on it by the court’s scrutiny to claim the moral high ground. Labour MP Jack Dromey, for example, justified the Labour Party’s disowning of Woolas by stating that: ‘It is no part of our politics to tell lies, to fan prejudice to win votes.’
One response in opposition to the courts’ ruling has been to claim that the courts do not understand the nature of political debate. This was the essence of Woolas’s appeal. In politics, it is claimed, the distinctions between fact and opinion and between personality and politics are grey – in fact so grey that the courts should have given Woolas more latitude.
The different conclusions reached by the Electoral Court and the appeal court highlight the subjective nature of the rulings that judges are being asked to make. The Electoral Court found that Woolas’s claim that Watkins had reneged on his promise to live in the constituency was a statement about his personal character or conduct; the appeal court disagreed on the unprincipled basis that ‘to hold that such a statement fell within the prohibition would have a significant inhibiting effect on ordinary political debate’ .
We may infer from this that the appeal court found Woolas’s lies about Watkins supporting Muslim extremists to be beyond ‘ordinary political debate’. Whereas lying about where a candidate lives is permissible as being part of ‘ordinary political debate’, falsely claiming that a candidate supports Muslim extremists is not permissible ‘ordinary political debate’. According to the Woolas case, the latter can cause the courts to overturn the electorate’s decision; the former cannot.
But the unsatisfactory nature of the courts’ rulings do not address the fundamental problem with a law that empowers judges to void election results. Democracy must mean that it is the votes of an electorate that count. An election that may be voided by judges deciding that false statements of a personal character have been made is not a democratic one. Either the electorate is sovereign, or it is not.
None of this is to say that there was anything creditable about the Woolas campaign. It gave prominence to a single issue, alleged Muslim extremism, and it did this in a lurid and sensationalist way. The Woolas campaign was designed to pander to perceived voters’ fears of Muslim extremism. The offending leaflets are exhibited to the Election Court’s judgment. For example, on the front page of the Saddleworth and Oldham Examiner there was a picture of Woolas framed by a sniper’s gun sight next to a headline ‘Targeted Militant Extremists go for Phil Woolas – see centre pages’. Inside was a picture of ‘extremist Muslims’, one of whom held a placard saying ‘Behead Those Who Insult Islam’. There were articles about Muslim militants who were alleged to be calling Woolas supporters ‘bum kissers’ and a claim that Muslim extremists were saying ‘don’t mess with the Muslims’ underneath a statement that the immigration minister – Woolas – defending a majority of only 3,590 was a juicy target for Muslim extremists in a constituency with 7,000 Muslim voters.
The tawdry nature of Woolas’s campaign may explain the lack of concern that has been expressed about the Electoral Court’s decision and its upholding by the appeal court. After all, if democracy descends to this level, why not turn to the courts to try and clean it up? This may be the prevailing sentiment that has caused a Victorian law to be dusted off after 99 years of disuse.
Legal processes are seen as apolitical, in which cases are presented by professional lawyers who devise erudite arguments for consideration by independent and impartial judges who come to conclusions by applying the law. Accordingly, Woolas has been thrown out of parliament by judges on the apolitical basis that he lied in claiming that his opponent supported Muslim extremists. The lesson for a candidate who desires to fight a Woolas-style election is: say whatever you like about Muslim extremists etc, but don’t falsely accuse your opponent of supporting them.
None of this will help to improve election campaigns. The fundamental problem with Woolas’s campaign material was not that it contained false attacks on his opponent’s personality. It was that Woolas had hardly anything politically interesting to say, as these headlines from the offending Saddleworth and Oldham Examiner show: ‘Father of kidnapped child urges votes for Woolas’ (an attempt to get votes by association with the father of a kidnapped child); ‘Election Result Announced: Labour wins by a mile as young back Labour!’ (an attempt to get votes from the young); ‘Lib Dems in mosque planning permission stitch-up’ (the usual planning-permission-for-votes scandal); ‘Eh up – nowt nicer than Lancashire tripe tha nos’ (an attempt to claim that Watkins was not an authentic northerner); ‘Loads-a-money: the most expensive Oldham election ever?’ (an attempt to claim that Watkins’ campaign was funded by a ‘billionaire sheikh’).
If election campaigns are to be improved, then it is necessary to put some politics into them. That is not going to come from judicial regulation. Respect for voter sovereignty would help.
Jon Holbrook is a barrister in London.
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