The Phil Woolas judgement: Arthur Balfour was right

The election offence for which Phil Woolas’s election was overturned is, deliberately and rightly, drawn narrowly and precisely (a point Nich Starling made very robustly on his blog and which Iain has also made on Lib Dem Voice).

The law gives very broad scope to contentious and aggressive claims, partly because – as Arthur Balfour succinctly put it when pushed to expand the law in 1905, “It is evidently not easy to go further, if only because of the difficulty of distinguishing between the mis-statements which are due to malice and those which are due to mere stupidity.”

The offence was introduced in 1895 with, until then, the only offence under election law regarding false statements about candidates being if you falsely claimed that someone had pulled out as a candidate.

It is worth considering what, however, would be the position if even this narrow legal offence did not exist. Imagine case, say, of a candidate campaigning to oust a Labour MP and making false claims about the Labour MP being a supporter of terrorism. The Labour MP loses, sues for libel and wins. During the court case it is revealed that the victorious candidate always knew the claims being made about the now ex-MP were false but even so deliberately decided to include them in leaflets distributed during the election.

Without the sort of offence for which Phil Woolas was found guilty the victorious candidate might have to pay up in libel damages but could continue as an MP. (Eagle-eyed readers will have noted by this point that there are some important difference between the Representation of the People Act 1983 and libel law, but they don’t affect this example.) They would be able to continue speaking and voting in Parliament, drawing a Parliamentary salary, accruing a Parliamentary pension and so on for the next few years. Would that be a satisfactory outcome?

Your answer to that determines whether or not the principle of provisions like those in the Representation of the People Act 1983 is right. I think it is – we should give very broad scope to the public getting to determine who wins and loses in elections, but that is not the same as saying that anything goes.

Those who argue otherwise are wrong and, in fairness to Labour, it should be pointed out that the vast majority of the online coverage from Labour bloggers has been to condemn what Phil Woolas did. I also had the experience of listening to Harriet Harman on the radio at the weekend and agreeing with her. She is right that what we know Phil Woolas did has no place in politics even if he manages a successful legal appeal.

What puzzles me, however, is that very little new came out during the case. There have been some interesting details – such as the forged diary, the evidence of the Labour Party agent being called “not reliable” by the judges and the complaint about a cat.

At heart, however, what we now know Phil Woolas did is what we always knew he did, which makes Ed Miliband’s decision to appoint him not merely a Shadow Minister but one for immigration, all the odder. Hopefully, however, that will soon become no more than a curious political footnote.

As for political campaigning more generally, I don’t think the ruling will have a major impact – nor should it, because the law should only be for exceptional cases. Leafing through the advice I’ve co-authored for candidates on what you should or should not say in political literature (which was quoted in the court case and described by Phil Woolas as “naive”!), there does not look to be anything that needs changing based on this case.

In that, there’s nothing new – for when the original provision was brought in by the 1895 Act, the Liberal Party’s then election manual, Woodings, was updated to mention this new offence. It rightly noted it but did not make a song and dance about it for it was rightly considered then, as has been the case, to be a provision that only covers unusual and extreme cases. As the judge put it in the 1911 case which hinged on this offence:

The primary protection of this statute was the protection of the constituency against acts which would be fatal to freedom of election. 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 a false statement as to the personal character of conduct of a candidate.

The law has been in place for 115 years. That Phil Woolas is one of only a very small number to fall foul of it shows not that the law is too broad but that his behaviour was so awful.

Credit, by the way, to the judges for their understanding of how easy it is to find coverage of election candidates online – para 123 of the ruling shows a familiarity with the internet that counters some of the stereotypes about an out of touch judiciary: