Fool me once, shame on you, fool me twice shame on me. Politicians lying is the oldest ethical question in the book. In February, though, the Welsh Parliament’s Standards Committee recommended that political candidates who deliberately mislead the public should face the prospect of suspension or recall.
If it’s implemented, and the Deputy-First Minister for Wales has re-affirmed the Government’s commitment to the principle, this would build on existing legislation which bans the making of false statements about another candidate’s personal character during an election – the argument being that this legislation should be broadened to include deliberately false statements about any issue.
The Director of the Institute for Constitutional and Democratic Research (ICDR), Sam Fowles, argues that politicians should be held to the same professional standard as other regulated professions – such as barristers or solicitors – for whom deliberate deception is defined by law. He sees politicians as a natural extension of this.
The analogy is limited, though, because while the task of the barrister is to provide legal advice, the task of the politician is to be advised (by the public as their representative). The difference is material. Professional advice is regulated because it is expert advice on a subject with which the general public cannot reasonably be expected to be familiar. Could this be an attempt to argue that the voter on the Clapham omnibus is not reasonably qualified to decide which politician should represent him, and requires professional guidance on the matter?
The real question is whether politics should be a regulated profession for the elite, or a self-regulating market for all, where the politician providing the best offer prevails. Voters are perfectly capable of regulating this market for themselves and are very unlikely to return a candidate who has failed to fulfil their manifesto promises or else has a demonstrably loose relationship with the truth.
In regulated professions, the regulator’s presence is designed to uphold a uniform standard for professional advice, which levels the playing field for private-sector actors to compete on the free market. A regulator for politicians will undoubtedly struggle to be seen as independent or apolitical, and far from levelling the playing field, might be perceived as seeking to shape it. Beyond this, creating barriers to entry into politics by regulating the speech of candidates is quite the opposite of what is required to encourage broad political participation – and appointing a political class of overseers to regulate candidates further smacks of elitism.
It now seems unlikely that the Government will be able to introduce legislation before the 2026 election, despite the claims of ministers. But were it to be introduced, how exactly would it be enforced? Failed proposals as part of the Elections and Elected Bodies Bill (now Act 2024) would have criminalised deliberately misleading statements made inside and outside of the Welsh Parliament.
The test for illegality under these proposals was intent – that is whether the lying was deliberate. We begin to see why they didn’t make it into the final draft of the Elections and Elected Bodies Act 2024. How could intent be proven, when a politician might argue bad memory, subjectivity of opinion, or simple confusion? The burden of proof would be so challenging as to render prosecution obsolete. Ultimately the difficulty in proving intent was why the criminal sanction was rejected in Bill – with support from the Criminal Bar Association, which stated that the backlog of cases it was struggling to deal with was already immense. Beyond this, though, creating this offence of deception would likely discourage the type of extempore debate which enriches a parliamentary democracy, and reinforce a professional class of speechwriters and fact-checkers, at a time when the last thing our political culture needs is more pre-packaged talking points supplanting genuine public engagement.
Until recently, proposals in the Senedd had followed the ICDR model for what to do when a politician has made a false or misleading statement of fact.
The ICDR Model (as per its own website) proposes:
- Where a court finds that a politician has made a false or misleading statement of fact, it can issue a “Correction Notice” requiring the politician to issue a public correction.
- If the politician refuses to comply with the notice within seven days (without reasonable excuse) the court can impose a Disqualification Order which prevents that politician holding office in the Senedd for a specified period of time.
The pertinent question is: why is the court better qualified than the voting public to regulate politicians, when the job of the politicians is to represent the voting public? The ICDR goes on to state that “the crisis of trust in politics has occurred because there is currently no genuine incentive for politicians to tell the truth.” This is a false premise – the genuine incentive is to be returned by the voting public. In this way the proposals also interfere with an important constitutional principle.
Parliamentary sovereignty is a model wherein the people elect a Parliament to make laws in accordance with their democratically-expressed priorities, parliaments then make laws, judges interpret them, and the police enforce them. In deference to parliamentary sovereignty, judges cannot be seen to monitor elected representatives, and disqualify them from service on the basis of statements they’ve made while representing constituents. Tom Brake from Unlock Democracy has also highlighted that policing statements of fact which politicians might reasonably claim were statements of opinion could undermine trust in the judiciary. He’s correct that the political independence of the judiciary must be protected above all.
The Senedd Standards Committee whose report ignited this debate, has recently put forward new recommendations where it agreed with the view that self-policing by candidates and politicians is preferable. It ruled out judicial monitoring of serving Senedd members. The Committee’s proposals now suggest that instead of judicial oversight, a note will be made if a Member of the Senedd has lied, and that the electorate in a given constituency will then be allowed to vote on whether the MS who has lied should be unseated. This seems like a reasonable compromise to strike, in which the voters are preserved as the primary decisionmakers in the enforcement of standards for their democratic representatives.
One remaining issue with the Committee’s proposal is the power of the Commissioner to instigate an investigation, rather than merely respond to a complaint. This would seem to leave an avenue open for an overzealous Commissioner to open more investigations than are called for. A light touch approach on the issue is key, and future debates should focus on regulating and limiting the power of this Commissioner. Without it, there is a risk that a Commissioner of this type might, by opening numerous investigations for alleged lying, create the impression (whatever the conclusion of these investigations) that many lies have been uttered, and thus proactively encourage the local electorate to doubt the veracity of their elected representatives.
The guiding principle of any efforts to regulate a politician’s speech should remain that any official or committee have an advisory and responsive role, rather than a pro-active campaigning one. In an era when increasing numbers of people feel disenfranchised, we should be hesitant about giving the impression that choices are made from above, rather than decisions enacted from below.
Anna Richards.
Anna Richards has worked at the Ministry of Defence and House of Commons, and as a Judicial Assistant at the High Court. She writes for the Spectator, the Critic, and UnHerd, and is currently researching ECHR reform as part of a Pamela Thomas Research Award with the Society of Conservative Lawyers.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.