A victory for freedom of speech at election time

By Tristan Jones

It is a feature of life in a free society that we normally have no duty to tell each other the truth. We are, in other words, free to decide what to believe. That freedom is particularly precious in an election. Candidates must be able to speak openly, and it is our democratic right to hear what they have to say. And, as millions of Liberal Democrat voters will vouch, voting for someone does not mean they have to do what they said they would do. The only pay-back for broken promises comes at the ballot box.

Although Phil Woolas lost his appeal to the High Court, the judgment is, in important respects, a victory for freedom of speech at election time. The High Court does not go as far as the Election Court went. Mr Woolas’ problem is that his conduct fell foul even of the High Court’s more generous approach.

The crucial starting point is that a candidate in an election may not make or publish any “false statement of fact in relation to the candidate’s personal character or conduct … unless he can show that he had reasonable grounds for believing, and did believe, the statement to be true” (section 106 of the Representation of the People Act 1983).

On his appeal, Woolas’ main argument was that the statements he had made in the last election about the Liberal Democrat candidate, Elwyn Watkins, did not relate to Watkins’ “personal character or conduct”. The High Court decision adopts a much narrower approach to the meaning of “personal character or conduct” than the earlier decision of the Election Court. According to the High Court, there is a clear distinction between a statement about someone’s “personal” character or conduct, and a statement about their “political” character or conduct. A statement is either one or the other, but not both.

This distinction between “personal” and “political” conduct led the High Court to hold that Woolas’ statement that Watkins had reneged on his promise to live in the constituency was a statement about his political conduct, not his personal conduct. Although the statement was untrue, it was not illegal.

However, the High Court upheld the Election Court’s decision that the other statements – that Watkins had sought the electoral support of Muslims who advocate violence, and that he had failed to condemn their actions – were statements about his personal character or conduct and were therefore illegal. The critical point, according to the High Court, was that the statements suggested that Watkins advocated criminal conduct. Had Woolas stopped short of that allegation, his statements would only have related to Watkins’ political conduct or character, and would not have been illegal.

The High Court’s judgment may go some way to addressing some commentators’ concerns that the case will lead to a “chilling” effect on political campaigns. It is true that it will not always be easy to say whether a statement relates only to someone’s political conduct, or whether it goes further and becomes instead a statement about their personal character. In most cases, however, there will be a simple practical solution to this problem: candidates should avoid saying things about their opponents which they do not reasonably believe to be true. What critics of the law have not explained is why that should be such a difficult thing to do.

The Election Court has also been criticised for venturing into territory which should be left to the rough and tumble of politics. But the only reason the court investigated these matters was because, by enacting the Representation of the People Act 1983, Parliament required it to. Judges can hardly be criticised for doing that which Parliament asked them to do. If MPs do not like the law, it is they, and not the courts, who should change it. As things stand, they have given no coherent reason for needing to do so.

Tristan Jones is a barrister at Blackstone Chambers