The law acts against fraud in other areas of life, why not when it’s directed at the electorate?

Jennifer Nadel – Co-Director of Compassion in Politics

When voters are asked what they want most from politicians, their answer is clear: honesty. The UK public want politicians who are honest, have integrity, and operate within the rules, over and above delivering outcomes. When Compassion in Politics mounted a petition entitled ‘Stop The Lying’ over 200,000 people signed it.

Next Tuesday the Senedd will vote on a measure which would give Welsh voters just that. If passed, Section 64 of the Elections and Elected Bodies (Wales) Act would criminalise political deception.

It’s a simple idea. Common sense many might say. We all know that lying is wrong. The law acts against fraud in other areas of life, why not when the fraud is directed at the electorate?

At the moment, for the unscrupulous politician, lying works. If a lie is repeated often enough it lodges in people’s consciousness. Even if it’s corrected the mud sticks. There’s very little downside in a political landscape where sadly and wrongly it is assumed that most politicians are strangers to the truth. That balance needs to shift, hence, this move, to criminalise it.

The measure would apply only to factual statements that were known to be false. A politician or candidate would have the chance to clarify, correct or withdraw a false statement as soon as they were made aware of it. So, the law could only be used against the bad actor who knowingly persisted in obscuring the truth. There is a specific exemption to cover situations when the truth cannot be disclosed for reasons of national security. Opinions and analysis would not be covered.

Truth

Politicians would still be free to tear a strip off each other, argue passionately, analyse through their own lenses and opine. At a time when public confidence is at an all-time low, with just 9% of voters saying they think politicians tell the truth, you would think that the government would see this measure as a no-brainer. A chance to show voters how seriously they view political deception. The perfect opportunity for a re-set.

The timing of this opportunity could not be better. The vote comes two days before the General Election and gives Wales the chance to show visionary leadership ahead of any democratic re-set that is to follow. As with the Future Generations Legislation, this measure, which would be the first of its kind in the world, would put Wales front and centre on the global stage.

But no. The government is currently opposing the measure. It has tabled a motion to have it deleted when it comes up for debate on Tuesday. Rather than the courts adjudicating on what is, in effect fraud, it suggests that the matter should be dealt with by Parliaments’ own regulations supplemented by the power of recall.

Recall allows voters to remove an elected representative if enough of the public sign a petition. However, there are a number of problems with this approach. First, if it is thought that this will be enough to restore voter confidence, the government is sorely mistaken. Westminster has had a similar measure since 2015 and it has had zero impact on levels of trust which are currently at an all-time low.

Complaints

Secondly, using recall as the ultimate sanction for political deception provides politicians with a lesser sanction than the rest of us would face if we were to make fraudulent misrepresentations. And, it sends an ambiguous message to the public. Fraud is wrong, but only if enough of you decide it is. The law currently provides for Senedd members to be disqualified from office if they are declared bankrupt or given a prison sentence of more than 12 months, so why should deceiving voters be treated less seriously?

Opponents of the measure also raise the flood gates argument, the threat of police being swamped and politicians besieged by vexatious complaints.
Indeed, the Counsel General has written to all members of the Senedd warning of the potential resource implications, pointing to the 7,000 complaints that Scottish Police received in the first week that the Scottish Hate Crimes and Public Order (Scotland) Bill came into effect in April. However, when we made contact with the Scottish authorities to find out how they’d dealt with that deluge they told us that the initial rush had slowed to a steady trickle of roughly 59 complaints a week.

The Scottish legislation is also not the most reliable comparison as there are potentially over 5 million people capable of committing hate crimes while the Welsh measure in question will apply only to Senedd members and candidates. So, the maximum number of potential miscreants between elections would be 60 rising to a few thousand when elections are held. Plus, the law will only kick in if it could be shown that the statement of fact was false, knowingly made and the statement maker has refused to correct the record.

Indeed, the lawyers who helped draft the law willingly concede that it is narrowly drawn. So narrowly that the number of prosecutions is likely to be ‘vanishingly small’. The point of the law is not to open up politicians to a slew of litigation but to create an effective deterrent.

While there has been no formal response to the measure from the police, we understand that privately senior officers do not see it as representing a ‘significant burden’.

The government’s next argument is that Section 64 represents a significant
threat to freedom of speech and parliamentary privilege, namely the freedom of parliamentarians and others taking part in proceedings to speak freely without fear of criminal or civil action in the courts.

In his emotionally charged letter to Senedd members, the government’s chief legal officer argues that this measure would roll back an important constitutional right that has existed since the Bill of Rights in 1688.

There is only one problem with that argument: that historic right doesn’t actually exist in Wales. Members of the Senedd don’t have the same unqualified privilege that exists in Westminster. Parliamentary privilege in Wales is limited to defamation. So, whilst no Senedd Member can be sued for defamation, they are still subject to the law in relation to other statements. For example, if a member were to incite racial hatred, they could be convicted of the crime. Section 64 is not a restriction on freedom of speech but on freedom to lie.

Standards

What’s more, should Westminster at any point decide to extend unqualified parliamentary privilege to Wales, that legislation would take priority over Section 64. So, the Counsel General’s argument on the grounds of privilege is in effect a non-starter.

He also argues that such a measure should not be introduced as an amendment and that more time is needed for consultation. However, an amendment is exactly the mechanism which smaller parties have to use if they want to get legislation through and the clause provides for consultation and amendment by regulation once it has been passed.

To delay and not to take this current opportunity to act carries inevitable risks, a week is, after all, a long time in politics. And voters, dismayed by the current downward slide in standards may find a delay hard to comprehend.

There is a growing gulf between the values most of us live by and those we see being acted out on the political stage. The consequent anger and lack of trust the public has for the political class has a damaging effect on our democracy. It also makes life very difficult for the vast majority of politicians who are devoted public servants. The politician’s life is not an easy one. Aside from the stresses of the job, it requires huge sacrifices in terms of family life and personal privacy and sadly also now too often involves dealing with public anger and vitriol.

I recently presented a documentary for BBC Radio 4, Broken Politicians. Broken Politics. which explored the impact of the current climate on politicians’ mental health. The frank and searing conversations I had with politicians from all parties, about the realities of political life convinced me that bold steps are needed to reverse the slide into an age of overt hostility and lack of respect for those who enter politics. Signalling a clear and convincing reset to the public on the issue of honesty would pay huge dividends both in terms of the message it sends the public and the deterrent effect the sanction would create.

At Compassion in Politics, the cross-party think tank I co-founded, we have been researching and calling for this measure for the last four years. Our polling consistently shows that voters think this is something the criminal law should deal with. Leaving it to politicians themselves to police is not enough. It leaves the impression that they are being left to mark their own homework. Our most recent poll, conducted just last month by Opinium showed that 72% of voters backed it with only 7% opposing it (only 4% of those who opposed it did so strongly).

Section 64 is a bold, courageous piece of legislation. It has support from members of all parties, and its timely.

Across the Atlantic a proven liar looks set for re-election. Closer to home, a
Putin apologist and leader of the Reform Party could soon enter Westminster.
These are dangerous days for democracy. The platform which elected office
and candidacy offer politicians gives them an influence not just on their voters but on the national discourse at large.

We are sadly in a new political age, where courageous and visionary leadership is needed. The Senedd has provided this before and set an example for the rest of the world to follow with its leadership on Future Generations Legislation. We  very much hope that next Tuesday, its members will be willing to do just that again.

Jennifer Nadel, Co-Director Compassion in Politics. Co-Author, ACT NOW
(released this week).