Phil Woolas challenging ban from politics
Former Labour minister Phil Woolas is bidding to overturn a ruling banning him from politics for three years.
He wants a judicial review of the ruling of a special election court, which stripped him of his Commons seat.
Last week the High Court ruled a decision of High Court judges "sitting in their capacity as High Court judges" was not open to judicial review.
Mr Woolas's team sought to argue on Tuesday that the election court was "inferior" to the High Court.
They want three senior judges to rule that the election court misdirected itself in law, when it ruled that Mr Woolas had made attacks on Elwyn Watkins', his political opponent, "personal character or conduct" with "no reasonable grounds for believing them to be true, and did not believe them to be true".
But first the judges have to decide whether the case can even be subject to a judicial review.
Mr Woolas's first application for one last week was rejected when Judge Mr Justice Silber ruled it was was "settled law" that the decisions of High Court judges sitting in their capacity as High Court judges "cannot be subject of applications for judicial review".
At the Royal Courts of Justice, Gavin Millar QC, for Mr Woolas, argued that judges at election courts were not acting "in their capacity as High Court judges".'Different animal'
He referred to previous legislation as having recognised the High Court as a superior court of law and that there was a "higher-lower" relationship between the High Court and the election court which were not "of concurrent status".
"A trial of an election petition is not a trial in the High Court," he argued. "It is a different animal altogether."
He argued that the election court was "a court of very limited jurisdiction" adding: "It would be unthinkable if the parliamentary election court were to act completely outside its jurisdiction... that that would be unchallengeable by way of judicial review in the High Court."
End Quote Helen Mountfield QC
It is no part of the law to protect freedom of expression where that freedom is abused to make one section of the community angry about, and fearful of, another on the basis of falsehoods”
Helen Mountfield QC, acting for Mr Watkins, agreed it was "not the same thing" as the High Court but argued it was "equivalent in dignity, character and expertise and is indeed to be treated in that way".
She said Parliament had set it up as a separate court because High Court judges had argued it would be "constitutionally improper" for the High Court itself to take it on.
She said the election court was "a court consisting of High Court judges, exercising the jurisdiction of High Court judges" and therefore their decision was not open to a judicial review.
The election court ruled on 5 November that Mr Woolas had made false statements in his campaign to hang on to his Oldham East and Saddleworth seat.
It heard that Mr Woolas stirred up racial tensions during a campaign which saw him retain his Oldham East and Saddleworth seat by just 103 votes from Lib Dem candidate Elwyn Watkins.
It found that, although made in the context of an election campaign, comments in campaign material suggesting Mr Watkins tried to "woo" the votes of Muslim extremists clearly amounted to an attack on his personal character and conduct.
The court ruled he was guilty of breaching the Representation of the People Act 1983 and barred him from standing for elected office for three years.
But in written submissions to the High Court, Mr Millar QC argued that the statements were about the "political conduct" of his Lib Dem opponent - not his personal character.
He argued that its interpretation of provisions in the 1983 Act were inconsistent with free speech and Mr Woolas's human right to freedom of expression.
But in her written submission Ms Mountfield argued that Mr Woolas's strategy in the campaign was "of the basest kind" and that Oldham East and Saddleworth had seen race riots in 2001 and deep religious divisions.
"It is no part of the law to protect freedom of expression where that freedom is abused to make one section of the community angry about, and fearful of, another on the basis of falsehoods," she wrote.
A decision about a by-election in Oldham East and Saddleworth is on hold until the legal process has finished. The hearing continues on Wednesday.