What now after Woolas? Is the campaign playbook facing a re-write?

by Dave Collins

FROM the glorious revolution onward, “anything goes” has been the default position for British election literature, subject principally to the deterrence provided by England and Wales’ notoriously plaintiff-friendly defamation legislation. The Oldham East & Saddleworth judgement asks a lot of questions about whether this is going to continue. British political communications could be transformed.

UK election campaigns have a long record of controversy and allegations of skulldugery. A classic was the 1784 Westminster election in which supporters of the prime minister, William Pitt, backed by the palace, organised to oppose the return of star Whig politician, Charles James Fox, in the seat with the widest popular franchise in Great Britain. According to the Wikipedia entry, “both sides spent heavily, campaigned bitterly, allegedly libelled and slandered their opponents relentlessly and resorted to all kinds of tactics, including Georgiana, Duchess of Devonshire touring the streets and, according to the opposition, kissing many voters to induce them to vote for Fox”.

Subtle. But does it constitute misrepresentation?

Following Fox’s victory by 6,233 votes to 5,998, a prolonged scrutiny of the votes (similar to Florida’s ‘hanging chads’ dispute in 2004) was used by the high bailiff as a pretext to delay making the return. Until finally, 10 months later, the House voted 162-124 against the government, in effect finding Pitt guilty of illicit intriguing against his leading opponent.

More contemporary controversies include Smethwick (1964), in which the Conservative candidate who defeated Patrick Gordon-Walker ran an openly racist campaign, employed the slogan “if you want a nigger for your neighbour – vote Liberal or Labour”. Victorious PM Harold Wilson promptly elevated Gordon Walker to the peerage and made him foreign secretary, while calling for the new MP, Peter Griffiths, to be made a “parliamentary leper”. Griffiths lost the seat in 1966, being kicked out by the voters rather than as the consequence of legal action.

In 1992 Gerald Malone, defeated in Winchester by just two votes, did go to court arguing that 55 ballots voided for lack of official mark should have been counted. He won the case and the election of Mark Oaten for the Lib Dems was voided. Oaten however went on to win the resulting by-election with a handsome 10,000 majority. This swing against Malone was taken by many as evidence that voters tend to react against attempts to overturn election results via the courts on technicalities and the 1992 Winchester by-election result, together with the costs incurred by both parties, have generally served to discourage similar cases ever since.

In the 1997 New Labour landslide, the election of Fiona Jones for Newark was overturned after she and her (volunteer) agent were found guilty by the high court of failing correctly to declare some costs on the expenses return and thereby exceeding campaign spending limits. Neither Jones nor her agent had expected to win and ran a rather shambolic campaign, directed equally toward the concurrent local elections in which the local Labour party did expect to be able to make gains. Not anticipating victory, they failed to budget for the campaign properly, or to track spending once it had started. Exactly like Phil Woolas, Fiona Jones was initially defended by Labour party solicitors, but dropped like a stone once convicted and disqualified on March 19th 1999.

Fighting on, however, she was reinstated by the court of appeal on 15 April 1999. This is the primary precedent on which Speaker Bercow has ruled, in my opinion correctly, that no writ for a by-election in Oldham East & Saddleworth be moved until the Court of Appeal has ruled. Tragically, the events, combined with her isolation in both the Commons and her seat led to Ms Jones becoming a serious alcoholic, dying in Feb 2007 from liver disease. The handling of this affair and the lack of pastoral support for Ms Jones was shameful and does no credit to either Newark CLP or the PLP.

Despite Harriet Harman announcing ex cathedra his expulsion from the party, Woolas will not be left as alone as Jones was. He is a veteran political street fighter, with an extensive network of friends and allies both in the PLP and the GMB. Having no option but to appeal, he will doubtless find the funds to do so. It is impossible to rule out the possibility that he will be successful. In such a situation the party leadership would surely find it impossible not to re-admit him.

If Woolas’ conviction for “misrepresentation of personal character” is upheld, then his political career is over and his reputation hopelessly ruined. What putative candidates and agents up and down the land will be wondering, however, is where it leaves them? This judgement could well open the floodgates to a host of other vexatious petitions by aggrieved defeated candidates.

Misrepresentation is substantially more elastic than defamation. Defined as “An assertion or manifestation by words or conduct that is not in accord with the factsIt happens all the time in politics. In defamation litigation, there is at least a plethora of precedent available to illuminate key concepts, such as “fair comment” and Parliamentary privilege. The wording of sections 159 and 160 of the RPA, which are unchanged since 1895, did form part of the argument in the North Louth case of 1911, but in that case the MP escaped by making his election agent the fall guy.

It is certainly arguable that political advertising in Britain needs to be brought under closer control. Currently the scope of the offence and paucity of precedent means that the interpretation of the statute is still highly unclear and controversial. Remember that Woolas was not sued for libel, which it is fair to say is the test most candidates and agents have applied over recent years (not that ignorance of the law is a defence, but few of us have considered the distinction up to now).

Like Dan Hodges I carry no torch for Woolas and were I his agent those leaflets would not have been printed. His effort to blow the dog whistle to call out the white working class vote is not the kind of politics of which any of us should approve. But he has not been charged with inciting racial hatred, nor with defaming his opponent. He has been charged with misrepresentation and a precedent is thereby created which could have far-reaching consequences

These issues can only be clarified either by Parliament working out an appropriate way of amending the relevant sections of the RPA, or by case law over time. Since the RPA is constitutional legislation, any amendment can only be made by taking the entire Bill through committee stage on the floor of both Houses of Parliament.

A likely initial consequence if the Oldham judgement stands is that premiums for election insurance may rise, possibly quite sharply. This will have implications for all parties, but one rather hopes it would clobber the BNP particularly hard.

It may also further deter local voluntary parties from producing home made leaflets locally printed on fairly cheap risographs, as all parties will have to go to greater lengths to get them cleared.

In most election petitions, the court is required to reach a conclusion as to proportionality (i.e. to what extent the breach, if found to have occurred, could reasonably be considered likely to have affected or changed the result). In the Oldham judgement this was not a pertinent consideration since, given the wording of the statute and the verdict reached, the court had only one sentence available.

What this means is that in legal theory more or less any MP can be removed by the courts and disqualified from standing in any resulting b’selection if they, or their literature, or campaign workers (with their knowledge) misrepresent the personal character of a rival candidate. This is liable to have a rather chilling effect, particularly where a candidate’s local credentials or religious opinions are at issue and arguably of public interest.

Unlike the situations of Charles Bradlaugh and Tony Benn, there is no legal option for the disqualified person to challenge the law by winning successive by-elections. To me this is the element that is most unsatisfactory. In a democracy, the ultimate sanction should lie with the electorate. If a candidate or agent messes up then putting them through a by-election, along with liability for the petitioner’s costs, is surely sufficient punishment?

No democrat should be content that an MP duly elected with a healthy majority can be turfed out and their electoral mandate thrown over simply because of an off-the-cuff remark about a minor party candidate (e.g. David Icke or the notoriously litigious Galloway) describing him as, say, a bigot, crook, homophobe, nutcase or racist. Any candidate so accused could of course sue for defamation and look forward to receiving compensation proportionate to the damage to their character sustained as a consequence of the material in question. We do not want a situation where the balance of power in a new Parliament must await the consequences of a series of election courts.

Whether Phil Woolas wins or loses, his fate is of interest to more than just him or the electorate of Oldham East & Saddleworth. It matters to our democratic system.

Dave Collins was Labour agent in Hampstead & Kilburn at the 2010 general election.

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11 Responses to “What now after Woolas? Is the campaign playbook facing a re-write?”

  1. Jane says:

    Thank you for this most informative article. I certainly had not considered fully the ramifications and will await with interest any Court of Appeal’s ruling.

  2. Terry Daniels says:

    When Gordon-Walker lost at Smethwick, he was not immediately sent to the Lords. He fought a by-election at Leyton, and managed to lose that too. He was elected for Leyton in the 1966 general election. He was made a peer in 1974.

  3. Matt London says:

    Where you around in Birmingham for the 1964 election? I was – and worked for the Tories, though not in Smethwick. Griffiths always denied using such a slogan – and the one he was actually accused of using didn’t mention the Liberals* – it was allegedly: “If you want . . . . . vote Labour”.

    No printed Conservative election literature was ever found with the slogan on it – unlike the Woolas case – indeed I’m not sure it was ever distributed in print by anyone. It was mainly just alleged that the conservatives had invented/used it (and taught it to kids to chant).

    As I remember it there were only two Birmingham constituencies where there were such allegations – Smethwick and Perry Barr (where I did work – and where the candidate certainly used the issue if not the slogan) but generally the Birmingham party was on the left of the tories and played down the immigration issue – which was certainly a vote winner when candidates did use it.


    * The tories in Brum then tended to think it better to ignore the liberals – on the grounds that mentioning them only encouraged them

  4. Nick says:

    I’m not sure this is quite right – misrepresentation is a civil tort that is somewhat different to the provisions of s106 RPA 1983, which refers to “a false statement of fact” about a candidate’s “personal conduct or character”.

    In short, it is still perfectly within the law to misrepresent another candidate’s political views or conduct in office – or even personal conduct so long as it is clearly presented as opinion rather than fact.

    You only have to refer to the last claim brought under s106, Fairburn vs Scottish National Party, in which the SNP had put out leaflets claiming that Tory MP Nicholas Fairburn did not collect constituents’ mail at the House of Commons, so constituents couldn’t contact him. But he could show that he did, i.e. it was a false statement of fact. However, the court ruled that as this related to something that Fairburn did in his capacity as an MP, it was not a statement about his personal conduct or character, and therefore s106 did not apply.

    The problem with what Woolas did, and the legal innovation of the judgment, was that the court found his claims about Watkins’ allegedly “wooing extremists” and lying about it were so serious that they reflected on his personal honour rather than just being about his political views.

    That does open up the definition of personal character slightly wider than had perhaps been thought previously, but it certainly isn’t to the point that any kind of misrepresentation whatsoever becomes a breach of s106.

    Also, when you say that Watkins did not sue for libel, I would firstly say that he still could do so, and would probably have a pretty solid case based on the election court’s ruling; and secondly, I don’t think that many libel lawyers would think that Woolas’s leaflets weren’t inviting a libel suit. If you don’t say anything libellous, you’re not going to break s106, so it’s still a perfectly sensible test – one that Woolas’s agent seems to have ignored.

    Nor do I think that the hypothetical candidate with a healthy majority need worry too much about an election petition from a minor candidate for being called a racist or nutcase – I doubt a court would find that it “materially affected” the election, nor that it was a “statement of fact” rather than opinion, and the candidate could probably come up with “reasonable grounds” for believing it true anyway.

    There is, perhaps, a certain increased risk of it being justiciable at all, however – i.e. that the hypothetical BNP candidate might be able to make it a prima facie case and thus drag you in to court even if the judge would throw it out.

    “Crook” might also be an interesting one, you might have a case for saying that it literally means “criminal” and thus is a false statement of fact so long as the candidate in question has no convictions. Even then though, I wouldn’t particularly fancy being the lawyer who made that the only element in a case.

    And of course, the real risk is always in very marginal seats where even a small thing could have changed the result, and the losing party has more of an incentive for a re-run. That is rather the case with all electoral law, however.

  5. theProle says:

    There seems to be a lot of confusion over this issue from the left’s side of the table.

    As someone who comes from the other end of the political spectrum, I would like to make the following observations.

    1) Politicians of all colours lie.

    2) Usually, the truth eventually comes out.

    3) In an ideal world, politics would be a better place, if it were possible for any politician found guilty of lying to get their marching orders, then presumably they would stop telling lies.

    4) Imagine elections where you could say anything about your opponent. You could mailshot the entire constituency saying your opponent had an I.Q. of 80, and a recent conviction for drink driving… while they said similarly pleasant things about you. Sure, afterwards you could all sue for damages, but its hard to imagine an election like this being free or fair.

    5) This means there has to be some sort of law to limit people who go too far. This is what has happened here, and its pretty blisteringly obvious that P. Woolas was well over the mark.

    6) There is a need to ban some sorts of people from standing as MP’s – see also the Bobby Sands saga in the early 80’s. It doesn’t seem unreasonable to me to include people who have clearly and knowingly broken rules about elections in a ban on standing for parliament.

    7) All this has nothing to-do with people being racists. As far as I can see “if you want a nigger for your neighbour – vote Liberal or Labour” would still be perfectly legal as a campaign slogan in this context, although it might cause you a lot of trouble (including litigation) from other directions. Trying to make this an issue about immigration is merely muddying the waters.

  6. MG says:

    At last, a balanced article on this issue. Phil Woolas is being made out to be personally evil but one person (especially a busy candidate) cannot produce literature alone. I agree with the judgment last Friday (I travelled to Oldham to watch the hearing for myself in person) but I am deeply, deeply uncomfortable about the way this has been handled by the leadership since. Harriet Harman’s statement should have been made in sadness rather than anger and what she SHOULD have said is that she would make no comment whilst Phil Woolas’ legal process was taking place and that when the legal process was finished the Labour party would refer the matter to the organisational structures the party has in place to deal with such matters. Then, after a PROPER investigation, any statement made should have been a joint one from the NEC or whichever body hadles such matters not one person looking like they were enjoying “putting the boot in”. Justice needs to be seen to be done just as much as it needs to be done. I do not support Phil Woolas but I do not support lynch mob tactics in he Labour party either. I’m glad you referred to Fiona Jones who was treated disgracefully by the Labour leadership. I would be interested to know how Ms Harman treated Fiona at the time.

  7. Dave Collins says:

    Thanks to all who’ve commented.

    Terry & Matt – Thanks for putting things straight regarding Smethwick. It’s before my time and I got it wrong about PGW getting a peerage to go with his foreign secretaryship (even then causing a by-election for the sake of party convenience was fraught with risk). I don’t contest Matt’s assertion that the Tories never directly printed the infamous slogan on their literature, but I think it’s fairly widely acknowledged that Griffith’s campaign did focus heavilly on immigration and did little to challenge or discourage such sentiments.

    Nick – Of course Watkins may well still sue for libel now he’s won in the Election Court, but the legal issues will be somewhat different. Thanks for all your pertinent points. It’s all very unclear where the ‘line’ is now drawn. I agree that the key is the extension (and aside from North Louth, introduction) of the prohibition on attacking the ‘personal character’ of an opponent. How far it can be pushed in practice we will have to see – unless Parliament changes the wording.

    theProle – Of course there have to be rules governing elections, but they should be such as to ensure that freedom of speech at election time is paramount and that elections are decided at the ballot box, not by 2 judges, however eminent, in a court of law. Judicial intrusion on the free expression of political opinion at elections should be kept to a minimum and concentrate on process rather than attempting to evaluate the validity of the case propounded by protagonists. I do not see any case for extending the current categories of persons ineligible to stand for elected office.

    MG – We all understand the Party Leadership’s concern not to get on the wrong side of public opinion and that Woolas is a robust character and no political neophyte. The Fiona Jones case should however have served to remind Harriet that Election Court verdicts DO on occasion get overthrown and are not necessarily the last word. By being so ruthless in the dumping of Woolas, as well as making a rod for Ed’s back if he is reinstated on appeal, the leadership has understandably annoyed many in the PLP who take the principle of solidarity seriously, and of course realise they are equally dispensable once the bullets start flying.

  8. paul barker says:

    I wanted to comment on the article above this but the link isnt working.
    What is Labour playing at ? Why are Labour MPs raising money for a man who ran a campaign apparently modelled on The BNP ? Why this attempt to set the “elected” leader against his “elected” deputy ?

  9. Dave Collins says:

    Reflecting on theProle’s mention of Bobby Sands I think I may have got it wrong on the disqualifation front. Like Sands and Benn I think he would be able to be nominated as a candidate for the byelection, but barred from taking up his seat for 3 years even if he were to win.

    I reckon this provides an important stopgap as a way of challenging the system, provided of course that the individual has sufficiently solid support in her/his patch for the crusade s/he is leading. It ain’t gonna happen in Old & Sad because if there eventually IS to be a byelection it’s quite clear Woolas will not be the Labour candidate. Of course if it ever were to happen then the 3 year ban would be absurd and Parliament would come under strong moral pressure to reconsider the law – as Bradlaugh (wording of the Oath of Alligence) and Benn (lack of provision to renounce hereditary peerages) eventually achieved.

  10. Hal says:

    Harriet was quite right: whatever the court of appeal finds about how the law was applied, it won’t change the facts of the case. Woolas’ behaviour was unacceptable. Even if he wins his appeal he has no place in the Labour Party.

  11. M Macpherson says:

    From a democratic perspective I am uneasy about this judgement and even more so about the sentence.

    It seems inappropriate that a court of law can overturn the decision of an electorate, here by annulling an election to the highest house of representatives.

    The right to take part in governing the country belongs to every citizen. This has been guaranteed by binding international agreements and is presumably entrenched in UK constitutional law. For instance, the Universal Declaration of Human Rights of 1948 states:

    Article 21.

    * (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
    * (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

    Clearly, from the above, the “right to take part in the government of his country, directly or through freely chosen representatives” is a matter and value of deep importance . Constitutionally it is a “high good”. It may not be swept aside because of a much less serious alleged misdemeanour.

    Michael Macpherson
    I&R ~ GB
    Citizens’ Initiative and Referendum
    Campaign for direct democracy in Britain

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