No, minister

When the courts and politics clash, controversy is usually not far away. The case of Watkins v Woolas [2010] EWHC 2702(QB), resulting in a high-profile former Labour minister having his election victory overturned, sent shockwaves through parliament. It was the first decision of this nature for nearly one hundred years and one which could have important ramifications for all those who stand for public office '“ from MP down to parish councillor.

Philip Woolas had been an MP for Oldham East and Saddleworth since 1977. He had been a minister since 2005, and in 2008 was immigration minister. In the general election of 6 May 2010, he held onto his seat by 103 votes. His nearest rival was Robert Watkins, for the Liberal Democrats.

Watkins contested the result of the election. He alleged that Woolas had made several false statements of fact in relation to personal character or conduct, a matter covered by section 106 of the Representation of the People Act 1983. If Woolas was found guilty, then, under section 159 of the RPA, the election would be void and he would not be capable of being elected to parliament for three years.

Under section 106 of the RPA, one is guilty of the offence if one makes or publishes any false statement of fact in relation to a candidate's personal character or conduct. It is a defence if one can show that one had reasonable grounds for believing, and did believe, the statement to be true.

Way back when

The last time such a case had been considered by the courts was in 1911,when an Irish election court faced a large number of challenges as a result of an election in North Louth, reported as the North Division of the County of Louth (1911) 60' N&H 103.

The court, at that time, said that a false statement must relate to personal character or conduct '“ 'personal' as distinguished from 'public'. It must be one of fact. An untrue statement of fact may, however, relate to the personal character of a candidate even though it also relates to his public or political character. In other words, as stated by Gibson J in the North Louth case: 'A politician for his public conduct may be criticised'¦ for that the statute gives no redress; but when the man beneath the politician has his honour, veracity and purity assailed, he is entitled to demand that his constituents shall not be poisoned against him by false statements containing such unfounded imputations.'

The rationale for this, as explained by Madden J, was: 'The protection of the constituency against acts which would be fatal to freedom of election.' The judge continued: 'There would be no true freedom of election, no real expression of the opinion of the constituency, if votes were given in consequence of the dissemination of the false statement as to the personal character or conduct of a candidate.'

Therefore, the approach to take when considering if the law has been broken is:

• What is the meaning of the comments which are complained of?
• Do the comments amount to a statement of fact?
• Are they statements of fact in relation to the person's personal character/conduct?
• Are the statements false?
• Did the person making the statement believe them to be true and have reasonable grounds for believing them to be true?

On the battle buses

So the burden of proof was on Watkins, as the petitioner, to prove that Woolas was guilty of the alleged illegal practice. The standard of proof was not on the balance of probabilities, but was the criminal law standard of proof of beyond reasonable doubt.

The first three questions require the court to consider the meaning and effect of the comments in their context. One must look to what the meaning would be to the ordinary and reasonable reader of them in the constituency. Such a reader is neither naïve nor unduly suspicious. He would not analyse the words like a lawyer.

The case focused on an article published in the Labour party publication The Examiner accusing Watkins of 'wooing the extremist vote'. The court found that the ordinary and reasonable reader would understand the 'extremist vote' to be the Muslim extremists who advocated violence and that Watkins had sought the electoral support of such people.

Having established the meaning, was it a statement of fact? The court said the statement described certain conduct by Watkins, namely that he sought the electoral support of advocates of violence. It was not a value-laden judgment. It was not opinion. There was no discussion or context. It was a clear and unqualified statement of fact.

Did it relate to the personal character or conduct of Watkins? The court said that to say that a person has sought the electoral support of persons who advocate extreme violence clearly attacks his personal character or conduct. It suggests that he is willing to condone threats of violence in pursuit of personal advantage. It is also an attack on his political conduct (because the advantage sought was an electoral victory) but that does not put the attack outside the protection afforded by section 106 if his personal character is also attacked.

The statement was considered by the court to have been false. The threats of violence referred to in The Examiner referred to threats by Muslim extremists in the context of the Oldham East election and, in particular, threats made directly to Woolas. The court found that there was no evidence that extremist organisations had made threats of violence to Woolas in the context of the election in Oldham East. Therefore it followed that the allegation that his Liberal Democrat opponent attempted to woo the vote of extremist Muslims who threatened violence was false because there were no such Muslim extremists.

Finally, did Woolas have reason to believe that the statement was true? In this particular instance the court held that this was not relevant. This is because the allegedly false statements were so obviously false that Woolas could not say that he understood their meaning in a different sense.

Blown out of proportion?

There were other statements by Woolas which were complained about and regarded as false statements. They again concerned the issue of alleged Muslim extremists, whether Watkins had broken his promise to live in the constituency, the alleged large election expenses of Watkins and the source of his funding.

In respect of the last allegation, the court considered it to at least be possible that Woolas might have had grounds for believing the allegations in respect of Watkins' election expenses, although the statements in respect of this allegation were untrue.

However, in respect of the other statements, the court was satisfied that Woolas had made statements of fact in relation to the personal character or conduct of Watkins which he had no reasonable grounds for believing were true and did not believe were true.

Therefore he was guilty of an illegal practice and his election was void, pursuant to section 159 of the RPA. Interestingly the court stated that, if the only breach had been a false statement as to Watkins' promise to live in his constituency, it would have questioned whether Woolas should have been disqualified. In other words, could the court apply proportionality to the penalty? Was it proportionate to disqualify the election? In the end, this was not a consideration, because the court considered the false statements in respect of the attempts to link Watkins with Muslim extremists were sufficient to allow the severe penalty of disqualification of an MP to stand.

To consider it from another angle, is the European Convention on Human Rights (ECHR), and, in particular, the protection afforded by article 10 to the right of freedom of expression, compatible with section 106 RPA? In Watkins v Woolas, the court considered that the obvious interference with

freedom of expression was proportionate and legitimate. The RPA does not interfere with statements, whether true or not, which relate to the public or political character of a candidate but only with untrue statements which relate to the candidate's personal character or conduct.

All in the game

Politicians of all political hues should consider this judgment carefully. It has enormous repercussions for all, whether Labour, Tory, Liberal or nationalist. The outcome of this court hearing has stunned the political world. Is it right that the court should forensically examine literature and statements made in the heat of a bitter political contest? Is it easy to spot the line that the court has sought to draw between a political criticism and personal insult?

It is all too common to criticise one's political opponent for lying or failing to fulfil promises. When are these mere political failings of an opponent and when are they such that they go to his 'honour, veracity and purity'?

Section 106 RPA makes provision for the MP to be liable for the actions of his/her agent but what of loyal supporters who make disparaging comments of opponents out of misplaced enthusiasm? Campaign documentation has to be certified as being produced by the candidate and/or the agent. It will be important to ensure that there is no unauthorised rogue literature being distributed.

Moreover, all political literature sent out by parties and candidates which criticised a named opponent will have to be carefully checked. Anything that goes to a candidate's personal character or conduct could result in a challenge of this nature being made. If allegations are going to be made, they either need to be true, or, and this may be the best defence for the accused candidate, they must have had reasonable grounds for believing them to be true.

This is going to be difficult enough for parties, both nationally and locally, to police '“ but what of spoken comments or emails? The Act under which Woolas was prosecuted is not strictly limited to literature so it could conceivably encompass all sorts of communication, even texts and tweets. There have been a number of incidences of politicians, sportsmen and celebrities running into trouble over caustic tweets or texts.

A 'throw away' tweet born out of frustration with one's opponent could ultimately cost an MP his seat. At the time of writing, Woolas is seeking judicial review of the process and court decision. The outcome is eagerly awaited, not least by his, currently former, parliamentary colleagues.