Entry from December 7, 2010

Further to my post of last month on the case of Phil Woolas, the British Labour MP who was expelled from the House of Commons for — I still can’t quite believe it — lying about an opponent during an election campaign, the High Court of Justice, Queen’s Bench Division in the form of a three-judge panel made up of Lord Justice Thomas, Mr Justice Tugendhat and Mrs Justice (what a delightful formulation!) Nicola Davies, DBE, last week reached a verdict. The news is bad for Mr Woolas, I’m afraid, but possibly good for those of us who would like to see a return of honor to politics. One of the three counts on which he was found guilty of lying by the Parliamentary Election Court was set aside by the High Court panel, but the other two were affirmed and his exclusion from Parliament for three years was upheld. “It is the end of the road — I am out,” he commented.

Some of the commenters on my original post pointed out that there was more to this case than met the eye, and that Mr Woolas was being punished not for lying but for a sin against political correctness and “multicultural” orthodoxy by attempting to inflame public opinion against the Muslim minority in his constituency. The lies cited by the Election Court included the claim that Mr Woolas’s Liberal Democratic opponent, Mr Watkins, had condoned extremist Muslim threats against Mr Woolas’s own life. “Had the liar in this case,” wrote one of the commenters on the New Criterion site, “made incorrect assertions about his opponent”s financial integrity, or marital status, or dealings with Norwegians, or anything else that did not involve a ‘protected’ group, he would have gotten away with it.”

This may be true, though of course we cannot know. Dan Hodges made the same claim in The Guardian, writing that “Phil Woolas is a scapegoat. The fall guy. Ritual sacrifice to the conscience of the liberal left.” Everyone admits that in many Labour constituencies, immigration is a make-or-break issue and that Mr Woolas’s crude attempts to identify Muslims with “extremists” and extremists with terrorists and both with Mr Watkins may well have made the difference in his razor-thin margin of victory over the Lib Dem. But I think that anyone who reads the Justices’ tightly reasoned decision would have a hard time contending that they were politically motivated. Even if it is true that the Election Court would have been less likely in the first place to have looked with favor on Mr Watkins’s complaint if it had related to lies on a subject of less sensitivity, it’s hard not to conclude that it and the High Court panel both made the right decision in the case as presented to them.

Here follows the climactic paragraph of the latter’s Judgment:

There is in our judgment a very significant difference between a statement that goes to the political conduct of a candidate and one that goes beyond it and says something about his personal character. We can think of no reason why Parliament cannot have intended that where a statement was made about the personal character or conduct of a candidate, it did not intend due care to be exercised. Freedom of political debate must allow for the fact that statements are made which attack the political character of a candidate which are false but which are made carelessly. Such statements may also suggest an attack on aspects of his character by implying he is a hypocrite. Again, imposing a criminal penalty on a person who fails to exercise care when making statements in respect of a candidate’s political position or character that by implication suggest he is a hypocrite would very significantly curtail the freedom of political debate so essential to a democracy. It could not be justified as representing the intention of Parliament. However, imposing such a penalty where care is not taken in making a statement that goes beyond this and is a statement in relation to the personal character of a candidate can only enhance the standard of political debate and thus strengthen the way in which a democratic legislature is elected.

Unfortunately, I’m afraid that such scrupulosity could hardly be expected of the more politicized American judiciary — which may be one reason why no such law as the British Parliament’s s.106(1) of the Representation of the People Act of 1983 has ever been attempted or even contemplated by the U.S. Congress, so far as I know. Another is that it would probably be unconstitutional under the First Amendment anyway. But the framers of the First Amendment lived in a world where a candidate belied by his opponent might very probably challenge him to mortal combat. I wonder if that would be a relevant consideration to any “originalist” judge considering an honorable amendment to the Amendment?