Friday, November 5, 2010

Is the Woolas judgement an attack on free speech?

The news that former Labour immigration minister Phil Woolas has been found guilty of knowingly making false statements about his general election rival in campaign literature sounds good.

In the past I've found Mr Woolas's views and manner very disagreeable, and the false statements in his campaign literature similarly: particularly that his rival had attempted to woo Muslims who advocated violence against Mr Woolas.

It turns out then that Woolas' leaflet is not only disagreeable but also falls foul of section 106 of the Representation of the People Act (1983) which sets out sanctions against anyone involved in an election who "makes or publishes any false statement of fact in relation to the candidate's personal character or conduct" unless they can show "reasonable grounds for believing, and did believe, that statement to be true".

Mr Woolas responded to the judgement saying that it "raised fundamental issues about the freedom to question politicians":
"Those who stand for election can participate in the democratic process must be prepared to have their political conduct and motives subjected to searching, scrutiny and inquiry. They must accept that their political character and conduct will be attacked. It is vital to our democracy that those who make statements about the political character and conduct of election candidates are not deterred from speaking freely for fear that they may be found in breach of election laws."
This judgement, he said, would "chill political speech".

You might argue that this is humbug from a scoundrel who has been rightly punished. Or that it is about time something was done about this culture of political smear in which election leaflets and partial newspapers too often delight.

More coolly, you might argue that it is fine to scrutinise the conduct and motives of candidates so long as you do not knowingly lie about them.

But even this more moderate position worries me. Let me give you an example from a political leaflet that came through my door this week. It's not an election leaflet, granted, but is not dissimilar. It's from Labour (Ben Bradshaw in Exeter), but that's because it's what came to hand rather than because the other parties never do exactly the same things.

The leaflet asks "Do the cuts affect you?", declaiming inter alia that child benefit is being restricted, that free prescriptions for people with long-term conditions are being axed, and that cuts to the police budget put safety at risk.

The leaflet goes on to say "REMEMBER: The Tories and LibDems had a choice. They chose this." They "made the wrong decision. Their savage cuts are a massive gamble with our economy, and a reckless attack on our jobs, growth and services." It says it is "shameful that Lib Dem MPs... are now supporting this vandalism."

Now I don't think there's a legal problem with any of this. Opposing parties would disagree with it all; the claims clearly fail to tell the whole story; and it's a shame that political discourse has to dumbed down in such a fashion. But it's all quite ordinary as political leaflets go.

However, what if instead of generalised references to "Lib Dem MPs" or "the Tories" or "the Government" or "cuts", this were an election leaflet that said "Candidate X says he loves the NHS, but he supports the axing of free prescriptions for people with long-term conditions", or "Candidate X is happy to see law-and-order put at risk by cutting 20% from the police budget", or "Candidate X wants to hit the poorest hardest by unfair welfare reforms".

Again, I think this is dumbed-down discourse that harms our political culture, and would be far from an extraordinary leaflet. But does it fall foul of the law? It's not clear to me. It could be tested in the courts, but surely whether such statements are false should be the stuff of the election, rather than the courts? Following the Woolas judgement, angry candidates with deep pockets might be willing to pursue such cases, although I'm sure the mainstream parties would be disinclined to do anything that risked tumbling into costly tit-for-tat legal battles across hundreds of constituencies.

No, my worry is here is not that there will be huge numbers of court cases, but that election literature becomes more generalised and less focused on the individual candidates' views and record than it should be.

In that sense, the Woolas verdict would inhibit free speech in quite a serious way.

Of course this could go another way: rather than simply dropping the smears against opposing candidates while continuing with tribal nastiness, selective omission, spurious bar charts and misleading ambiguity, candidates could calmly and rationally set out their best arguments for preferring their policies to their opponents' policies.

Nah. Can't see that happening. Can you?

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