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How to save your seat

Last year, the former Immigration Minister Phil Woolas became the first MP to be ejected from the Commons in 100 years. Francis Hoar looks at the implications for election candidates at all levels of government.

On 5th November the Parliamentary Election Court declared former Labour Immigration Minister Phil Woolas’s 2010 parliamentary campaign to have been unlawful (Watkins v Woolas [2010] EWHC 2702).  He lost his appeal (for judicial review) on 3rd December ((R (on the application of Woolas) v The Parliamentary Election Court (Watkins & The Speaker of the House of Commons Interested Parties) [2010] UKHC 3169 (Admin)).  For the first time in 100 years an MP was ejected from the Commons. The voters of Oldham and Saddleworth have since elected his replacement. 

This decision clarifies the guidance on the limitations of comments made on candidates’ character.  Although the law applied in this case has been in force for almost 150 years, these judgments are likely to lead to much closer scrutiny of such comments in the future.  It is essential that all candidates and election agents consider their ramifications carefully.

Phil Woolas had been MP for Oldham East and Saddleworth, an area scarred by racial tension, since 1997.  Standing against him in the 2010 general election was Liberal Democrat Robert Elwyn Watkins.  The High Court upheld his complaints about two allegations in Woolas’s election literature: that Watkins advocated banning arms sales to Israel but not to Palestine in order to encourage violent extremist Muslims to vote for him; and that he did not reject the endorsement of extremist Muslim groups that had made death threats against Mr Woolas and had refused to condemn the threats in a ‘pact with the devil’. Both were found to be untrue and to relate to his ‘personal character’.

Section 106 of the Representation of the People Act 1983 (‘the Act’) prevents campaign teams in local or parliamentary elections publishing ‘any false statement of fact in relation to the candidate’s personal character or conduct’.  This section is enforced by local and parliamentary election courts respectively.  The key distinction is between statements relating to ‘public’ and ‘personal’ character.

The two judgments have the following effects on candidates and campaign teams.

Election literature will be considered on the basis of its meaning to a reasonable member of the electorate.  Courts will not hesitate to consider the apparent meaning suggested by the placement of headings, captions, photographs and commentary.  In the Woolas case, the use of headlines under protesters whose slogans stated ‘death to those who insult Islam’ was an important factor in the Court’s finding that Woolas had intended to associate his opponent with such extremists.

Statements relate to a candidates ‘personal character’ when they go beyond mere ‘imputations’ (such as that a candidate is a hypocrite because he failed to abide by a promise) and make serious allegations.  In Woolas’s case the court rejected a complaint that Mr Watkins was alleged to have broken his promise to live in the constituency but upheld those alleging that he failed to condemn death threats.  Although the court held that statements could not refer both to personal and public character, the manner in which they distinguished between the two suggests that future consideration of whether statements fall foul of the Act are likely to focus on the gravity of the allegation.

Candidates and election agents will be acting unlawfully (and risk the candidate losing his seat and being barred from standing for three years) where they publish statements they do not ‘reasonably believe’ to be true’ (of which more below).

A candidate making a complaint to the Election Court must prove it to a criminal standard, which includes proving that his or her opponent did not ‘reasonably believe’ the statement in question to be true.

Where campaign teams do not intend to make statements alleging grave misconduct by an opponent, they must consider carefully how the literature they prepare could be read by an ordinary member of the public.

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On the other hand, if they do intend to make such a statement (because they believe it to be true), it is essential that they make thorough enquiries and keep good records of those enquiries.  A diary or a spreadsheet itemising the steps taken to check any allegations made should be kept for more than one month after the poll is held (election petitions alleging corrupt practises must be presented within 28 days of the poll for parliamentary and local elections under sections 121 and 128 of the Act, respectively). Mr Woolas suffered from his agent being unable to show that any such steps had been taken; indeed, the judge said that a simple ‘Google’ search would have revealed some of the statements to have been false.

While campaign teams must be aware of the requirements of the legislation, a careful and well run campaign should not have any problems defending an election petition.  Of course, the decision also brings into focus the stark remedy available to those candidates who have faced particularly vicious onslaughts by their opponents.

These cases will perhaps principally be of interest to candidates in local and general election campaigns and to their agents.  They do, however, raise issues of some importance to returning officers and the local government lawyers who advise them.

The Act provides returning officers with the means to prevent attacks on personal character by candidates, as well as campaigning organisations.  Section 106 (3) allows applications for interim or perpetual injunctions against the publishers or distributors of false statements about candidates’ personal character.  There does not appear to have been any research into the regularity with which this provision is made either by the victims of such false statements or by returning officers, though it appears to be a provision used sparingly.

Indeed, the hostility to the use of s 106 to dislodge a sitting MP suggests that more frequent applications for injunctions may be controversial.  Yet returning officers’ duty to ensure the fair running of election campaigns may lead to more frequent applications for such injunctions, especially where the comments are made against candidates who do not have the resources to match those of the major parties.

It will be interesting to see whether these two judgments lead to an increase in litigation, either by candidates or returning officers, or whether the backlash against the judicial exclusion of a Member of Parliament makes major parties think twice before resorting to the law to protect their reputations.

Francis Hoar is a a barrister at Field Court, specialising in public law (including election law) and commercial law and also represents constituency associations and individuals before the Board of political parties in disciplinary hearings.

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