Public or Personal Character in Election Campaigns: A Review of the Implications of the Judgment in Watkins v Woolas

AuthorFrancis Hoar
Publication Date01 July 2011
DOIhttp://doi.org/10.1111/j.1468-2230.2011.00863.x
endorsement of the c apacityapproach i s that where an opportunity is prese nted to
a director, the opportunity shou ld be disclosed to the company for its decision on
whether the director should be permitted to exploit it.
For proponents of the capacityapproach a strict rule provides a deterrent func-
tion and anyperceived harshness is tempered by the freeing e¡ect of priordisclo-
sure and consent. This does not address the possibility of the unwarranted
blocking of directorial entrepreneurship based on an overly expansive notion of
what is required topromote the successof the company,but that is an inescapable
hazard of the judiciary’s traditional ‘softly, softly’approach to subjective directorial
assessments of what is in the best interests of the company,
60
now encapsulated in
section 172(1) of the Companies Act 2006. From this perspective, given the right
of ¢rst refusal which prudent directors must now extend to the company in
respect of opportu nities e ncountered, O’Donnell represents a not incons iderable
triumph for companies over the director class and its reverberations are likely to
be widely felt.
Public or Personal Character in Election Campaigns:
A Review of the Implications of the Judgment in
Watkins vWo o l a s
Francis Hoar
n
Reviewing the Election Court’s decision that a candidate’s parliamentary election literature was
unlawful under the Representation of the People Act, the Divisional Court held that statements
could either be abouta candidate’s public character or his personal characterbut not both.Though
the legislation was compatible with the ECHR if it penalisedonly the latter, the question for the
courts is reallya matter of whether statement impugns a candidate’s charactermore than merelyas a
necessaryimplication of an allegationregardingconduct such as the breaking of electionpromises.
It was the ¢rst time in 100 years that a court has thrown a sitting MP out of the
House of Commons. On 5 November 2010 the Parliamentary Election Court
handed down judgment declaring former Labour minister Phil Woolas’s 2010
parliamentary campaign to have been unlawful and the election null, ordering a
re-election and banning him from standing for elected o⁄ce for three years.The
case has galvanised the political establishment and led to many questions about
the limitationsof lawful campaigning in elections.
1
Mr Woolas brought a judicial
review of the Parl iamentary Election Court’s decision on 3 December 2 010. The
Divisional Court upheld the decision, albeit on somewhat di¡erent grounds, it
having been accepted that no appeal lay against the Election Court’s ¢nding of
60 Re Smith & Fawcett L td [1942] Ch 304.
n
Field Court Chambers.
1Watkins vWo o l a s [2010] EWHC 2702 (QB) at http://www.judiciary.gov.uk/Resources/JCO/
Documents/judgments/judgment-oldham-election-05112010.pdf(last visited18 April 2011).
Francis Hoar
607
r2011The Author.The Modern Law Review r2011The Modern Law Review Limited.
(2011) 74(4) 596^616

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