How the Senedd can take the first step on the road to restoring trust in politics

Dr Sam Fowles – Barrister

In 2019 I helped prove that the Prime Minister “misled the Queen”. The Court of Session found that Boris Johnson gave a false reason when he unlawfully prorogued (suspended) parliament.

The Supreme Court upheld decision, ordering Johnson to re-open parliament. Johnson faced no meaningful repercussion for this lie. Last year I represented John Nicolson MP before the Westminster Parliament’s Standards Committee.

Nicolson wasn’t accused of lying. Rather, he was accused of (truthfully) informing the public that the Speaker had refused to allow MPs to debate a report which found the Secretary of State, Nadine Dorries, had misled a Select Committee. The Speaker attempted to punish Nicolson rather than Dorries.

Crisis

The UK, as a whole, is facing a crisis of trust in politics. Just 9% say they trust politicians to tell the truth. If people don’t trust politicians then they lose trust in the whole political system. 75% of people have lost faith in government.

Why do politicians lie so consistently? Because they can get away with it. Boris Johnson is unique in British politics because he was (eventually) sanctioned for his lies.

Politicians like Nigel Farage, who repeatedly mislead, are never held accountable for it. Our political system is fundamentally incapable of holding liars to account.

The public is crying out for change. Polling by Opinium for Compassion in Politics shows 72% support criminalising politicians who lie to the public. The Senedd now has the opportunity to pass such a law.

The proposed Clause 64 of the Elections and Elected Bodies (Wales) Bill will make it a criminal offence (punishable by a ban from the Senedd of up to 4 years) for MS or candidates to “wilfully and with intent to mislead make, publish or cause to be published on their behalf, a statement purporting to be a statement of fact which they know to be false or deceptive in any material particular.”

Important measure

It’s surprising, therefore, that some continue to oppose the measure, questioning whether it will work in practice. I have prosecuted and defended criminal cases at every level, from the Magistrates Courts to the Court of Appeal.

Two years ago, I was part of the team that overturned the convictions of those wrongly convicted in the Post Office “Horizon” scandal. I’m able to say, with a high degree of confidence, that C64 is not just important, but highly practical.

C64 sets out a well-defined and specific offence. It applies only to politicians who knowingly lie and fail to correct the record within 14 days. It is limited to statements which are untrue in a “material particular”. This means police, prosecutors, and (if necessary) the courts must ask themselves “does the lie matter in the context of the statement”.

The statement “I met with the Russian Ambassador on at 1pm” would technically be a lie if the meeting was held at 2pm. But the lie would unlikely be material (unless something turned on the time of the meeting).

Allegations

By contrast the statement “I’ve never met the Russian Ambassador” would be an offence under C64 if there was, for example, a publicly available photograph of the politician in question shaking hands with the Russian Ambassador (coincidentally, Nigel Farage has claimed never to have met the Russian Ambassador. A photograph of him doing so is available here.)

The high level of specificity also makes it easy for police to dismiss spurious allegations. The existing offences of making a false report and perverting the course of justice, additionally, provide a powerful disincentive for anyone thinking of scoring political points by making spurious complaints.

Opponents have, nonetheless, criticised C64 for being too broad. Huw Evans, in these pages, suggested that the law might criminalise an MS who made “a false statement at the request of the police so that sensitive information does not get into the public domain” or who made “a statement… in Senedd proceedings about the content of a restaurant menu”.

Public interest

Dr Evens can sleep easy, however, because (in the extremely unlikely event that either of these occurred in real life), the CPS can only prosecute where it is in the public interest to do so.

Neither of Dr Evans’ scenarios would meet the public interest test and, if brought before a court, the prosecution would likely be dismissed as an abuse of process.

Dr Evans also worries that, while C64 prohibits private prosecutions “other public bodies such as local authorities” would also be allowed to prosecute. Local authorities have a power to prosecute any offence they consider “expedient for the promotion or protection of the interests of the inhabitants of their area”.

This power is only used, however, in the context of the authority’s specific functions and capacity. Just as local authorities don’t spend their time prosecuting murders, it fanciful to suggest they will begin prosecuting under C64.

Others suggest it is unfair to hold politicians to account to the criminal standard, that political lying shouldn’t be addressed until we can also address every other political misbehaviour, or that the punishment for lying should be left to voters via a “recall petition”.

All these critiques fundamentally misunderstand the problem. Politicians are either holding, or asking to hold, a position of unique public trust and power.

Struck off

A barrister can be struck off, losing their entire career, for lying in the court case (where the lie will likely only impact those involved in the case). When a politician lies, it undermines the entire political system. Every lie reduces public trust, every lie makes it harder for the public to hold politicians to account, and many lies can even lead to changes in the law.

The criminal standard is appropriate (and recalls are inappropriate) because lying should be against the rules of the political game, not just something the electorate are expected to accept and deal with ourselves.

Westminster should be a cautionary tale for the Senedd. It has tried expanding the powers of the Standards Commissioner, bunging the problem down the road in the search for a “holistic” solution. It’s even tried recall petitions. None have worked.

It’s rare for politicians to have the opportunity to pass a measure that is both unequivocally popular and practical. Next week the Senedd can take the first step on the road to restoring trust in politics.