With pressure mounting, will Cameron surprise with a reshuffle?

Photo credit: David Jones/PA Wire

There is no doubt that David Cameron’s premiership is in trouble following yesterday’s testimony to the Home Affairs Select Committee and its aftermath: while the appearance of Met Police chiefs did not have the attention and the drama of News International execs appearing before the Select Committee on Culture, Media and Sport, it did result in the release of the exchange between John Yates and Ed Llewellyn, Cameron’s Chief of staff (see the entry at 15.59 here for the most complete transcript I’ve come across).

This, on the same day as the revelation that the same man (Neil Wallis) who caused Sir Paul Stephenson and John Yates to resign was also advising Andy Coulson – albeit informally – while Coulson was working for Cameron on the Conservative election campaign, around April last year (according to the Indy).

There are, of course, other questions that remain – particularly in relation to any discussion of the BSkyB takeover that the PM might have had with NI executives, especially his friend Rebekah Brooks. But, assuming that he weathers the stormy exchanges that he’s likely to have in the Commons and before the 1922, Cameron will need to do something to regain the initiative as MPs head off on their summer holidays, albeit a day late.

Dangers real and imagined

The only way Cameron might realistically not weather the storm – at least in the short term – is if there is a coup against him from within the Tory party. Labour cannot do any more than just shout from the opposition benches – that is the nature of opposition – but the longer they keep talking about it, the more damaged the PM will become; hence the very sensible suggestions from a former Blair advisor writing to Cameron in the Telegraph on Monday. The Lib Dems’ polling numbers would still make anything other than electoral slaughter unlikely should an election be called, and pulling the plug on the Government would lead to one (especially since the Fixed Term Parliaments bill still hasn’t been passed): Roy Greenslade’s call in the Guardian on Monday for Nick Clegg to bring Lib Dems over to the Labour benches is as fanciful as the idea that a Labour-Lib Dem coalition would have worked in May 2010.

So it is the Tory ranks where the biggest potential danger for Cameron lies. Such danger is unlikely to manifest itself openly in the short term (although the briefings against George Osborne that Newsnight reported happened on the plane back from Nigeria, as well as the Chancellor’s conspicuous absence from screens or microphones, bring back some memories from the Blair/Brown days); but the longer the scandal goes on with Cameron on the back foot, the more likely a coup becomes. Whether a summer recess is conducive to plotting is, of course, debatable – away from Westminster, MPs are less likely to become involved in a coup attempt in numbers large enough for a coup to be effective (see the various failed plots against Blair and Brown), but it also makes small gatherings of key plotters less conspicuous (ditto).

Whose head is next to roll?

Aside from the possibility that Dick Fedorcio, the Met’s communications chief (who appears to have been the one to have actually signed off on the hiring of Wallis), will add to the list of former Met employees, the next casualty of the hacking scandal is, I think, likely to be someone within the No 10 staff and/or the Cabinet.

No 10 has been quick to point out that Ed Llewellyn had cleared, with the Permanent Secretary, the email exchange that led to information on the hacking investigation not being discussed with the PM in September 2010. Gus O’Donnell, the Cabinet Secretary, also rushed to say that no ministerial rules had been broken by the exchange. Both those things suggest that, in the absence of any other revelations, Ed Llewellyn’s job is safe. However, Tim Montgomerie reported hearing that Sayeeda Warsi’s job as Chair of the Conservative Party may be less secure.

All of which leads me to (albeit many months later!) take up Nick Thornsby’s challenge of considering what might happen if a reshuffle does happen. This has been the most stable government so far since January 2001 (Peter Mandelson’s second resignation), as both Blair and Brown had to deal with resignations, or carried out reshuffles, on a less-than-annual basis; that alone means that a reshuffle may well have been on the cards.

Some reshuffles are more equal than others

It could be that Sayeeda Warsi’s removal – if that is indeed what happens – is a simple sack-and-promote job, with the Baroness returning to the red benches and someone coming in from either the red or the green benches to take her place. Whoever takes her job must surely be someone who isn’t a natural “Cameronite” – which rules out most of the new intake, who would probably lack the gravitas and authority required anyway. If Cameron could persuade Sir John Major to come out of retirement, he might well fit the bill, but more realistically, perhaps someone like Bill Cash could be elevated to appease the right-wing Tory backbenchers.

More likely, in my view – because of the need to dramatically change the focus of the story, and because one of the reasons so few Cabinet members have been on air in the last few days might have been because they’d been busy laying the ground for a reshuffle, – is that there is a wider reshuffle. This might end up with Baroness Warsi keeping her Cabinet seat, but in a different role; her symbolic importance as a female Muslim cabinet minister is irreplaceable. A different potential ‘sacrificial lamb’ might be Ken Clarke, who is hardly beloved by the Tory right; whether the Baroness could (let alone should) replace him is a different question.

It could, of course, go further than a couple of swaps or replacements. Whether, for instance, the Chancellor is moved would perhaps be telling of the extent to which Cameron is prepared to shake things up in a way Blair never dared to. I could see a situation where, for instance, William Hague is put in charge of the Party machine (taking Baroness Warsi’s job), with Osborne put at the Foreign Office; Osborne might then be replaced by Clarke (who was, after all, quite a success as Chancellor in the mid-1990s, if my history is right).

Incidentally, I don’t think any changes are likely with the Lib Dem team. Any percieved strengthening of the junior coalition partner would play very badly with the Tory right, and some potentially welcome moves (like bringing David Laws back) would probably be percieved in that way. But nor are demotions likely, since these would upset the delicate balance between the two coalition partners, which is still recovering from the AV fiasco and the outcome of this year’s local elections.  So I’d go with preserving the status quo, for now at least, in that respect.

Other distractions

I wouldn’t be surprised if at some point today David Cameron ends up apologising for hiring Andy Coulson – something which, according to Labour, he has not done – given yesterday’s revelations. But I would be surprised if he doesn’t then try to shift the media attention away from the story with something like a reshuffle – the question then becomes, how extensive that reshuffle will be. Of course, the continuing Eurozone crisis, if not the events elsewhere in the world (sadly, we seem unlikely to be easily diverted from the #hackgate saga by something like a famine in Africa anytime soon) might do it for him. Whether Cameron continues to be led by events or seizes the initiative will help to define what sort of Prime Minister he really is.

 

PS: although I agree with Nick Thornsby’s call for Nick Clegg to make the most of the hacking scandal in principle, I don’t really see how the DPM can actually do more than remind people he and other Lib Dems had raised concerns about Coulson and that those concerns had been ignored, while stressing that he is continuing to work to address the big issue of the day – the Eurozone crisis – and pursue the longer-term goals (reforming the way media, politics and police inter-relate; constitutional and other reforms, etc) which the Coalition was created to pursue.

Police bail practice: stop all the clocks

I wonder how the person who was sitting in the legal advisor’s chair in Salford Magistrates’ Court on 5th April this year is feeling, knowing that they are intricately involved in today’s top story on the BBC News website about review of bail cases?

Admittedly, I am somewhat puzzled why the story is breaking so long after the High Court decision, which was handed down on May 19th (see para 15 for reference to the legal advisor). Presumably, the advice which was sought by the Association of Chief Police Officers (ACPO), to which the BBC News story refers, was only issued recently; in any case, the Home Office and ACPO seem to have been caught somewhat unawares by the view expressed in that advice that the High Court decision is binding.

Here’s my take on what the case was about, what it means, and whether all the fuss is worth it.

PACE and detention

The case centered on whether the police have the power to detain someone for further questioning (through a “warrant for further detention”, or WFD) more than 96 hours (4 days) after the original arrest, in the absence of any new evidence. There is currently a common practice by police to arrest someone, get permission from the court to detain them for questioning and, while they carry out enquiries, release them on bail, only to re-arrest them at a much later stage if their enquiries so require.

It was assumed that the “PACE clock” (referring to the Police and Criminal Evidence Act 1984, which sets out the framework for arrest, police investigations, etc. – it has been much amended since 1984!), which gives the police only a limited time to question the suspect – up to 96 hours, – stops while they are on bail and can be “re-started” at a later time (NB this is for matters unconnected with terrorism, to which a different framework applies).

In this particular case, it appears that no new evidence came to light during police investigations (otherwise, the police could have used a different section to re-arrest the suspect), and they tried to apply for an extension of the previous detention period when they re-arrested the suspect several months after the initial arrest (which took place in November 2010).

Stop all the clocks

The District Judge sitting in the Salford Magistrates’ Court – apparently at the prompting of the legal advisor – read the relevant part of PACE as meaning that no further detention can be authorised beyond the four-day period from the original arrest (“the relevant time”, in the language of the Act) had expired. This extinguished the possibility of authorising an extension of the detention period.

Manchester Police applied for judicial review (unsurprisingly perhaps!), but a High Court Judge ruled on May 19th that the decision of the Salford Magistrates’ Court was correct and could not be challenged. The BBC News story suggests that the legal opinion sought by ACPO agreed with both courts.

Should we be concerned?

Having read the judgment, and still having some memory of studying PACE during my BVC, I would say the panicked reactions expressed in the BBC News article are completely over the top – as are the more recent reports in the Guardian that Theresa May is considering emergency legislation on the issue.

If someone is arrested on suspicion of a crime, and not charged, the police can still release them on bail (and breach of bail terms is in itself an arrestable offfence, from what I can remember – hence why I’m particularly puzzled by the reports of Scotland Yard’s guidance saying that the police will have no power to arrest someone who breaches their bail terms or fails to surrender; perhaps they might require a magistrates’ court to authorise it, but I see no problem with police needing judicial oversight to deprive people of their liberty).

All the judgment does is prevent the police from being able to arrest the suspect for further questioning (without new evidence coming to light), often many months later. Again, I see little problem with that – if the police have enough evidence to charge someone, they can still do so, and I’m not convinced the police should have the power to arrest someone for further questioning if they have no new evidence, anyway.

In any event, it’s not really the judgment (either the High Court’s or the Magistrates’) that said all this – all the judges were doing was applying the law as it is stated. So what concerns me, personally, is that an intervention of a legal clerk in a Magistrates’ Court managed to draw the attention of the police – and the Home Office – to the fact that the practice of using the “PACE clock” was completely unjustified in statute, and prompt them to do a re-think.

What’s perhaps of even more concern is that so little thought seems to have been put into the possibility that the courts have interpreted the police’s powers correctly, and that ACPO are now apparently “running around like headless chickens” trying to work out how to find ways to detain people when the police have been caught out using powers they didn’t have. Not perhaps Auden-esque depression, but rather the panic that this case seems to have now caused is, I think, telling of how little prepared the police and the Government can be for someone standing up to them in defence of individual rights and freedom…

Pondering Oldham (Part 1)

Just over 12 hours since the polls closed in Oldham East & Saddleworth, much commentary has already been written – so I thought I’d add my own ponderings to the list, before I get distracted by something else.

Having spent 10 days over 3 visits up in Oldham, I am naturally disappointed that the Liberal Democrats’ Elwyn Watkins lost. I met him on a number of occasions and got the impression that he would have made an excellent MP for the area – something I had already guessed about from the fact he chose to stand up to Woolas’ lies and take him to court (contrary to what Labour have been saying, it wasn’t about him being a “sore loser”, but about drawing a line which political attacks should not cross). Indeed, it was what made me come up to Oldham in the first place – and then return; the friendliness of the campaign staff and local party members helped with the latter, too (a particular thanks to Ben & Shan Alexander, Martin Dinoff and Kevin and Linda Dawson for putting me up!).

Staying for the moment with the negatives, it was also disappointing that Labour were more effective at getting their vote out (especially in the evening); although I suspect the timing of the announcement by the Labour-run Manchester City Council that it would be cutting 2,000 jobs may have helped Labour’s “wrong cuts” narrative (Oldham isn’t a million miles away from Manchester, for anyone as weak on Northern English geography as I was before coming up here!).

It is also a sham that we were not more effectively able to counter Labour’s misrepresentations – some might call them lies – about what the Coalition were doing. Labour’s campaign – “a vote for fairness”, sadly devoid of actual policies for what was meant by ‘fairness’ (unlike the Lib Dems’ similarly-themed General Election campaign last year) – ran on two main issues, at least looking at their literature: tuition fees, with the idea that voters should “punish Nick Clegg for breaking his promise”, and police cuts. Let me explain why I think both could have been made more of by us.

I’ve blogged before why I think the new system is fairer and thus meets the second limb of the pledge, and when people raised the issue on the doorstep, I tried to repeat the arguments – with some success. People were also receptive to the letter from a local student which made the case for the new system very effectively – on one page of A4; unfortunately, this went out relatively close to the poll, allowing Labour to make a lot of noise about tuition fees in the preceding weeks.

On police cuts, Labour ran a “Save our Police” campaign, I think before they even selected their candidate, which was quite effective at stoking up fears that front-line police will be cut, particularly in the Greater Manchester area (which Oldham is a part of). But since the overall thrust of the Coalition is to cut back-office police (by reducing the amount of paperwork police have to do, and trimming things like HR departments), this was closer to a lie than a simple misrepresentation.

Moving on to the more positive things, though, there is much to be said for the fact that our vote didn’t collapse. In fact, it went up by 0.3%, and was only slightly down on the historically good 2005 election (useful data and interesting analysis from the must-follow BritainVotes here). Given the national media narrative, it will be a relief for activists all across the country – though admittedly not quite the massively invigorating boost that a win would have been.

BNP also lost their deposit, unlike in past elections in Oldham. This is certainly a positive result for British democracy; much though I value plurality of opinion, I have little sympathy for modern-day fascism (or, indeed, fascism in any day and age), so another blow to their already over-stretched finances is welcome.

British democracy also benefited from the fact that people turned out to vote, and in higher numbers than was expected, too – at 48.8%, it was higher than some historic by-elections (Brent East in 2003, for instance, only had 36.2%). Whether or not that hurt the Lib Dems remains questionable; there were reports of higher-than-expected turnout in the Saddleworth part of the constituency, which was perhaps more favourable to us (though I have little reliable information on what the actual impact of that was, if it indeed was the case).

A final positive was that the strategy of the Tory squeeze – which was explicitly at work in the last week of canvassing, even before last weekend’s polls came out – clearly paid off. But the point should perhaps be made that a lot of voter contact in the last week was aimed at exactly that – whereas a lot of the literature that went out to persuade people back into the LibDem fold (or against voting for Labour more generally) clearly wasn’t successful.

I shall ponder these points about campaigning strategy – and perhaps more broadly the implications for the Coalition and politics in the near future – in another blogpost, hopefully later tonight or in the next few days.

Motion on Kettling to LD Conference (Updated)

UPDATED: This is the latest version of the motion to prohibit ‘kettling’ which Jack Holroyde and I have written together to put to Spring Conference in Sheffield, taking on board the comments from those who have got in touch over the past couple of days.

 

Prohibition of Kettling Motion

Conference notes:

1) the increasingly widespread use of ‘kettling’ – containment of large groups of protesters within a small area by a police cordon for long periods of time, often without access to toilet facilities, water or any means of leaving except in an extreme medical emergency – as a means of controlling protests, including during the G20 Protests in 2009 and the “DEMOlition” student fees protests in November and December 2010;

2) that the use of ‘kettling’ often occurs without the police being able to prove that it is effective in stopping illegal activity, or that illegal activity would have occurred had the technique not been used;

3) the policy motion on Policing of Protest passed by the Autumn 2009 Party Conference, which recognised that ‘kettling’ must only be used where it is “absolutely necessary and proportionate”.

Conference further notes that:

1) Article 5 of the European Convention on Human Rights provides that “Everyone has the right to liberty and security of person.” This right has often been recognised as absolute, within the scope of the exceptions provided in the Article;

2) there is no legal power for the use of ‘kettling’ in primary legislation, with police relying on common-law powers for dealing with breaches of the peace to justify the use of the technique;

3) prior to the introduction of ‘kettling’ as a policing technique, protests were managed through the use of arrest powers, which do not punish the many peaceful protesters for the behaviour of a few who may potentially pose a threat, and/or the use of surveillance and intelligence.

Conference believes that:

1) ‘kettling’ does not represent the principle of ‘policing by consent’, and should never be used in situations involving peaceful protesters, including vulnerable individuals such as children.

2) alternative methods need to be devised for the management of protests which do not infringe fundamental British liberties, values and traditions, including but not limited to the use of arrest powers at protests and better use of surveillance techniques using existing powers and methods

3) ‘kettling’ endangers people’s lives and compromises the authority of the police by turning peaceful protesters into police detainees, and that consequently the existing policy on ‘Policing by Consent’ should be amended to prohibit the use of kettling.

Conference therefore calls on the Party Leadership to:

1) use their influence within government to ensure a timely end to the practice of ‘kettling’;

2) work with the police to develop alternative methods of protest management which do not infringe the fundamental rights to liberty and security of person;

3) use their best endeavours to ensure that those responsible apologise for the use of the technique at protests in the past.

 

 

LATEST: Any Federal Voting Reps who are interested in supporting it, please get in touch (via twitter or on nsalatortsev [at] gmail.com and/or jrgholroyde [at] googlemail.com). We have the 10 voting reps needed to put it to the Policy Committee (who decide whether it is put to Conference, unless I mis-understand the process), but the more, the merrier!

Any further comments are most welcome, either on the addresses above or in the comments section below!

Tax cuts vs DADT Repeal: Let Obama Be Obama?

The welcome news of the repeal of Don’t Ask, Don’t Tell has encouraged me to look again over the Atlantic and ponder the next couple of years in American politics – something I had intended do about in the wake of the Midterms, but never quite got around to blogging on.

In case you weren’t aware, the repeal itself is the culmination of a long and hard-fought campaign that sees the 17-year prohibition on gay and lesbian military personnel serving “out in the open” in the US military – resulting in around 13,000 dismissals from the military in the time it has been in force. It has been quite a long struggle, with the Military Readiness Act and the most recent National Defence Authorisation Act being just two of the recent measures that had been put forward to repeal the policy but had been blocked.

Quite apart from the moral aspects of the repeal, it also represents an important political achievement for the President, whose commitment to the cause of LGBT rights had been questioned while the policy remained “on the books”. It also comes at the heels of a divisive vote on tax cuts, which combined cuts for those on lower incomes with continuation of the Bush-era cuts for the rich (Mark Mardell’s excellent piece on this picks up on the compromise essentially amounting to another stimulus). Could this be signalling the start of “Let Obama Be Obama“?

I have heard supporters – and former supporters – of the President complain that he was not being leftist enough since his election – and indeed the tax cuts situation was precisely the sort of area in which the American left would have felt particularly disappointed (with many suggesting that the better course of action would have been to simply let the tax cuts expire). However, by choosing to act – and get something of what he had promised, in return for accepting a largely unpalatable retention of the Bush tax cuts – Obama has surely enhanced his position, at least with the middle-ground voters.

Pondering the next two years

And so begins the campaign for re-election; it is surely inconceivable that the President would choose to not contest the 2012 election now, despite what happened in the Midterms. But how difficult will it be?

Unfortunately for him, the Republicans now hold the Governorships in Florida, Ohio, Pennsylvania, Michigan and New Mexico – all states he won in 2008, and most of which he must hold on to in order to remain in office.

Another factor working against the President is the shifting demographics. The handy “predicted after the 2010 census” toggle on 270towin suggests electoral college shifts will mean that the Democrats start 6 down from where they were in 2008. I actually went through these (this will hopefully save you some time flicking between the 2008 and 2010-census-predicted figures!), and the changes they foresee are:

• more-or-less-solidly-Republican Texas gains three (!!) electoral college vote(r)s, taking it up to 37 – the second-largest to California’s unchanged 55;
• usually-Republican Arizona, Georgia, South Carolina and Utah gain one each;
• the only Republican state from 2008 to lose an electoral college vote(r) is Louisiana.
• likely-Republican (especially if Marco Rubio is on the ticket) Florida gains another.
• Iowa, Illinois, Pennsylvania, New York, New Jersey and Massacchussetts lose one vote(r) each – all of them Democratic victories in 2008 that will have to stay Democrat if Obama is to realistically win re-election (I’m not sure what would happen to the Democrats if they lost any of the last three!);
• Washington (State) and Nevada – both Democrat in ’08 and unlikely (in my un-professional opinion) to change – gain one each
• Ohio loses two and Michigan one – both of these may well (see bracketed qualifier above) swing to the Republicans come 2012 if the American economy doesn’t recover, though they were Democrat in 2008.

Assuming, for the sake of argument, that Florida, Ohio and Michigan do go Republican (and Pennsylvania stays with the Democrats), it would only take one of Indiana, Minnessota or Wisconsin, plus one of North Carolina or Virginia, plus either Nevada or New Mexico, for the Republicans to get to that magic 270 mark.

President Obama will have quite a fight on his hands to be re-elected; but I for one can’t see any other Democrat trying to replace him and winning. He will have to ensure he balances appealing to the middle ground (with e.g. tax cuts) with keeping his core support happy (this is where DADT repeal comes in); but above all he must surely live up to the courage of his campaigning philosophy, and believe that he can get things done – even with a Republican House.

 

PS: As you may have guesssed, my passion for American politics and The West Wing are sort of self-reinforcing. It seems rather poignant that one of the issues which pushed Leo McGarry to proclaim the “Let Bartlett be Bartlett” ideology was the fictional administration’s inability to get a repeal of DADT passed…

Also in the news: “gold-plating”, Europe – and Oldham

In amongst all the excitement of the Assange hearing, the (very welcome and much-awaited) statement by Clegg on ending child detention, and the comments by Bob Ainsworth on drugs policy (where was he when his party were in government though, one has to wonder, and why this sudden conversion now? to woo more dissaffected LibDems?), the quiet passage of the European Union bill through the Committee stage of the Commons which I would have overlooked had it not been for this piece on LDV by Andrew Duff MEP.

It comes a day after Vince Cable announced the end of “gold-plating” of EU legislation when it is transposed into UK law. Unless my grasp of EU law is weaker than I realise (it has been a while), “gold plating” is the process whereby we make the EU Directives we implement as water-tight as possible, ensuring e.g. the highest standards of environmental protection feasible, and full compliance with the deal that was negotiated in Brussels.

Trouble is, many other countries simply copy out the wording of the Directives in full, or even water down some of the provisions (while trying to stay within the spirit of the legislation) – so the argument goes that by “gold-plating” EU law we transpose, British businesses are put at a competitive disadvantage.

This obviously makes sense in straightened economic times (much though we might grow weary of the phrase, the reality isn’t going anywhere, as the recent unemployment figures serve as a reminder). But should we really be abandoning our position as champions of, for instance, environmental protection when it comes to implementing EU law, simply for the sake of appearing to “do something on Europe”?

Though some have in recent days talked about the lack of concessions given to Tory backbenchers, the Europe bill must surely be a quite a reward – along with the Tory elements of e.g. the redistribution of seat numbers in the Parliamentary Voting & Constituencies Bill. I may be partisan on this, but I cannot help but agree wholeheartedly with what Mr Duff says in his LDV piece (linked above) – it is a bad Tory policy, and implementing it will only push us further out of the European mainstream, when we could be doing a lot to shape the direction Europe takes to tackle threats as diverse as climate change, organised crime and banking regulation.

As Europe is one of the areas which I feel most strongly “Lib Dem” (Labour were quite good behind the scenes on Europe, but failed to even attempt to explain the benefits of our being in the EU – while the Tories are largely Eurosceptic, with only a few exceptions – we in the Lib Dems offer an honest, critical-yet-supportive approach to the EU), it saddens me to see us propping up yet another highly non-ideal compromise.

But that still doesn’t change my support for the party; compromises are at the heart of coalition politics, and even without AV there are indicators that suggest more likelihood of coalitions in the future (as the number of “marginal” seats becomes greater and as minority parties become more prominent, the likelihood of one party winning a majority even under FPTP is reduced). LibDems still offer a distinctive voice on European issues, regardless of what the Coalition does – as, indeed, we still to on student finance (thankfully, there was neither a pledge on what we’d do about Europe nor a heavily Labour-influenced organisation which pushed us to sign such a pledge in the first place).

Which brings me to another bit of news: the calling of the election in Oldham East & Saddleworth (or, to use the wonderful legalistic term, “moving of the writ”) – which regular readers (if I have any) will recall was caused by the judgment against Phil Woolas almost two weeks ago. Part of the reason I’ve not blogged in a while (apart from actually getting a few translations through to pay for the Christmas presents I’ve yet to buy – ah the ever-present conundrum of time vs money to spend!) was that I was up in Oldham with a group of London LibDems this past weekend – and have been somewhat recovering from a cold since.

It’s an election we can – and should – win. My impression was that someone seemed to be up to the old dirty tricks again, except this time they’re not being put in print; they’re relying on word-of-mouth on the doorsteps to spread nasty rumours about Elwyn Watkins. Only with more feet on the pavements, more leaflets and – most importantly – more canvassing will we be able to make up for the 103 votes we missed out on last May. I really can’t put it much better than Greg Mulholland MP, Chris Davies MEP or Helen Duffet, who have all been saying that we should help earlier rather than later in this essential by-election.

And a final word about the accusations by Labour that by having the election early, people might be disenfranchised. Frankly, had Phil Woolas not lied on his campaign literature (as five different high court judges found), there would not have been any need to have this by-election at all, and the people of Oldham & Saddleworth would not have been deprived of their voice in Parliament for the past 7-8 months!

I’m probably going to be back in Oldham in the New Year – if you need any details of how you can help, you can find them here.

(or, to use the wonderful legalistic term, “moving of the writ”)

Dissecting the Woolas Decision

To make up for the fact that my blogpost on LDV about the AV bill (nothing as controversial as the post on Cornish boundaries earlier this week, thankfully!) went up at the same time as news was breaking about the Woolas verdict, I thought I’d write up a quick summary of my impressions on skim-reading the judgment.

There were two main issues the Administrative Court had to decide:

1) Whether it had jurisdiction to hear a Judicial Review of a Parliamentary Election Court; and

2) Whether that Court correctly interpreted s 106 of the Representation of the People Act 1983 (“RPA”).

The first issue had never been decided – the last time an MP was successfully ousted was apparently in 1924, long before the modern concept of judicial review came into being. After a long and careful consideration of the history of the Parliamentary Election Courts (PEC), the Administrative Court concluded that it did indeed have jurisdiction to hear a petition for Judicial Review of PEC decisions  (by analogy to Local Election Courts), despite PECs being composed of judges from a higher rank of the judiciary (Queen’s Bench for the PEC, Divisional Court of the Queen’s Bench for the Administrative Court) and despite the provisions in the RPA stating that the decision of the PEC will be “final” and for the Commons to decide the outcome (paras 47-53 are particularly interesting reading for anyone concerned about the relationship between the Courts and Parliament).

This is surely correct. In practice judges of the Queen’s Bench do often sit at the lower Divisional Court level, and the courts, rather than the Commons, should be the ones to ensure that the PEC correctly interpreted the law as settled by Parliament. The power of the judicial review process is surely strengthened by this element of the decision; but that was almost inevitable since the 1984 decision in Mountford, which allowed JR of a Local Election Court to go ahead.

On the second issue, the Administrative Court’s decision is a both a little troubling (from a purely procedural point of view) and probably welcome (from a political campaigning point of view).

The Court decided that the PEC erred in its interpretation of the RPA, in that a comment could not be both relating to a candidate’s political standpoint (which is permissible) and the candidate’s personal character (which isn’t, and leads to the anulment of the election). The PEC decided that three of the comments Woolas made related to Erlend Watkin’s personal character, as well as being statements about his political standpoint; the Administrative Court instead substituted a ‘degree’ element into the test, finding that one of those three statements was simply about the political position of Erlend Watkins, but two (relating to allegations he had consented to endorsement by extremists) went beyond that and attacked his personal character. The Court therefore upheld the decision of the PEC.

This is possibly troubling procedurally for two reasons. Firstly, the Administrative Court simply substituted its own interpretation of the law for that of the PEC, and decided the case on that basis; arguably a re-hearing should have taken place – but that would take time (further letting down the people of Oldham East & Saddleworth, who would not know whether they had an MP or not) and would require the reinstatement of the PEC, which was specifically set up to hear this one case. Secondly, the test introduced is less than ideal because a question of degree to which a comment attacks someone’s political standpoint or their character will be difficult to determine in many cases. This risks uncertainty, and more court cases. Of course, this is good for lawyers.

It is, I think, also good for campaigners too – and not just those hoping for a by-election in Oldham East & Saddleworth, which will now take place (most likely sometime in January). By saying, in effect, that “there is a line when political attacks become personal attacks, and we will punish those that step over it”, the decision could lead to ‘cleaner’ campaigns devoid of personal smears. That would benefit the electors, too.