The political and the personal

On Friday, in the first decision of its kind in the UK in almost a century, a two judge bench of the High Court voided the election of a sitting MP because of an offence under electoral law (click here for the judgment and here for a succinct report in the Guardian).  Phil Woolas, the former Labour immigration minister and until Friday the MP for a Manchester constituency, was found guilty of an ‘illegal practice’ under the Representation of the People Act 1983.  The offence consisted of publishing several false statements of fact in relation to the personal character and conduct of his nearest rival, the Lib Dem candidate Elwyn Watkins, which Woolas had no reasonable grounds for believing to be true and did not in fact believe to be true.

The statements, published in Woolas’s campaign literature and circulated prior to the election, were that Watkins had attempted to woo the vote of Muslim extremists, that he had refused to condemn extremists who had advocated violence against Woolas, and that he had reneged on his promise to live in the constituency.  Having found Woolas guilty of an illegal practice, the court was bound under the 1983 statute to void the election as well as impose a three-year ban on election to public office.  Woolas announced immediately that he would seek to have the judgment judicially reviewed.  He has, though, been suspended from the Labour party, the deputy leader saying that it was ‘no part of Labour’s politics to try and win elections by telling lies’.

The judgment raises many questions of interest for students of law and politics alike.  Did the court strike the correct balance between the competing rights and interests, such as the protection of personal reputation, the public interest in free and fair elections, and the right to freedom of expression?  Woolas’s lawyer has argued that the judgment will have a chilling effect on political speech.  An argument of that kind is now the prevailing wisdom in the context of English libel law, which is widely considered to provide too little protection to freedom of expression; a major review of the law, currently taking place, is likely to recommend its overhaul.  From a more systemic perspective, does the role of the court under the 1983 Act strain the separation of powers?  It is not without significance, perhaps, that in the very first paragraph of the judgment the exact margin of Woolas’s victory is mentioned: 103 votes.

These matters of high principle may well overshadow a smaller but no less interesting issue: the line drawn in the judgment between the personal and the political.  Section 106 of the 1983 Act requires that the statements of fact at issue are ‘in relation to the candidate’s personal character or conduct’.  This was found with respect to each of the three statements mentioned above.  Take, for instance, the statement that Watkins had attempted to woo the vote of Muslim extremists.  The judges held that the statement attacked Watkins’s character because it ‘suggests that he is willing to condone threats of violence in pursuit of personal advantage’ (para. 82)  Similarly, it was held that the statement that Watkins had reneged on his promise to live in the constituency was relevant to his trustworthiness (para. 109).

The problem with this approach is that many, perhaps most, derogatory statements of fact about a rival’s political conduct can be interpreted, without too much violence to language or commonsense, as derogatory statements about personal character or conduct.  Consider three commonplace statements that might be made in the course of an election campaign:

1. ‘He has promised to do x but does not really intend to carry it out if elected’.
2. ‘She has only adopted policy y in order to placate her party’s favourite special interest’.
3. ‘His plans were costed carelessly and will be far more expensive to implement than he claims’.

Statement (1) is relevant to honesty and (2) to integrity.  Statement (3) seems like a statement relating only to political conduct, but the failure to take due care could be argued to be a defect of character.  The court’s approach means that the political threatens always to collapses into the personal, which undermines the distinction drawn in the 1983 Act.  The judgment, though carefully reasoned in other respects, is vulnerable on this point, and the cases on which the court relies should be reconsidered.  That said, the distinction itself is problematic.  It is difficult to think of any legal test that could neatly separate the political and the personal.  The political tends to implicate the personal and – given that these days nothing in a politician’s private life is off-limits to media scrutiny – the personal is always political.