Senedd vote on lying ban ‘a very dangerous moment in history’

Lee Waters MS and Adam Price MS

It won’t cut-through two days before a General Election, but a vote in the Senedd this Tuesday (July 2nd) marks yet another important moment in the development of Wales’ constitutional settlement.

MSs are voting on the penultimate stage of the passage of Elections and Elected Bodies (Wales) Bill. The legislation is designed to improve the way we run elections. Amongst other things it will give voice to ‘missing’ voters by removing the burden on people to register to vote and instead automatically include everyone on the electoral roll.

This has all been well-trailed, and builds on proposals in a White Paper. But during the committee stage of the Bill’s parliamentary scrutiny the Senedd’s Local Government and Housing Committee amended the legislation with cross-party support to add a significant new element to the Bill designed to rebuild trust in politics.

In a nutshell, it would make deliberate lying by Senedd Members and candidates a criminal offence that could lead to them being barred from standing for four years.

To be clear this would not apply to a slip of a tongue, or a judicious challenge to a vested interest. Statements of opinion would not be covered. But deliberate lies would.

Under the amended Bill it would be an offence for a Senedd member, or a candidate for election to the Senedd, ‘to wilfully or with intent to mislead’ by making or publishing a statement ‘that is known to be false or deceptive’.

The sanction would not apply to statements of belief, opinion or declarations of future intention, but to statements of fact that are demonstrably false. “The law could only be used against the bad actor who knowingly persisted in obscuring the truth”, as Jennifer Nadel from Compassion in Politics – the cross-party group who have been campaigning for this reform – made clear.

The Barrister Dr Sam Fowles offers as an example the statement “I’ve never met the Russian Ambassador”. He says this would be an offence under Section 64 of the Bill if there was, for example, a publicly available photograph of the Senedd politician or candidate 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.)

An honest mistake can be easily rectified. Politicians would have 14 days to withdraw their false statement once they’d been made aware it was wrong. But if they persist it would be for the police to decide to investigate, as they do now on a host of charges made against politicians, and then for the CPS to apply its usual ‘Public Interest’ test before prosecuting.

Sanction

In practice the bar is being set high – individuals couldn’t bring their own prosecutions and proceedings would have to be brought within six months of the date on which the statement was made. But it would establish an important principle, that like lawyers and doctors politicians should face sanction if they damage trust.

If found guilty they would be disqualified from being a Senedd Member for four years.

The Welsh Government is opposed to the reform and will attempt to overturn the amendment by deleting Section 64 from the Bill when it returns to the Senedd on Tuesday for the Stage Three scrutiny.

The Counsel General, Mick Antoniw, has said the proposals are “significantly flawed” and represent “a radical departure from modern constitutional norms in this country that has the potential to do much more harm than good” in a piece for Nation.Cymru last week.

We are working together on a cross-party basis to improve the Bill and want to respond to the criticism made by the Counsel General to inform Tuesday’s vote in the Senedd.

We don’t want to make bad law, or fail to consider unintended consequences. We want to test all the arguments and work with the Government to get this right.

Free speech

Mick Antoniw has warned that the offence will “potentially lead to a suppression of free speech” similar to past anti-dissent measures in the UK and those currently employed by anti-democratic regimes elsewhere.

He fears the amendment will hinder the right of MSs to “speak up without fear on behalf of their constituents often against corporate and wealthy interests”.

The Counsel General is right to point to the rise of autocratic leaders worldwide and the erosion of democratic rights in their wake. Section 64 is designed precisely to prevent this slide into despotism.  It is the appeasement of lying that has allowed the likes of Putin and the far right to rise to power. We must not make that same mistake and act now to build a bulwark against the purveyors of disinformation and deceitful propaganda.

Section 64 doesn’t impose any new limitations on Senedd Members’ freedom of expression.  MSs are already under an obligation to be truthful under Rule 2 of the Code of Conduct for Members of the Senedd (and under a similar provision in the Ministerial Code while acting in a Ministerial capacity.)  Members of the Senedd are also under an existing obligation, under section 106 of the Representation of the People Act 1983, not to make false statements about the character of candidates for election.

Section 64 does not impose a new duty therefore on Senedd Members to avoid lying. What is substantively new is that it ensures that MSs, Ministers, and candidates are all subject to the same truth-telling obligation. It clarifies that obligation so that it clearly excludes statements of opinion, in order to protect freedom of expression, not to undermine it.

It also ensures it is enforced by an independent tribunal, not through the current system of self-regulation which, in extremis, is potentially open to abuse by political opponents or vested interests in the manner the Counsel General describes.

Section 64 will also be subject to section 3 of the Human Rights Act 1998 which means it must be interpreted in a manner that is consistent with the European Convention on Human Rights. This means that any court considering the offence will err on the side of protecting free expression.

Chilling effect

Mick Antoniw has warned of the effect that the prospect of legal costs involved in cases against MSs charged with the offence could have on their willingness to speak out on behalf of their constituents, or even to stand in the first place.

The offence has been carefully constructed to avoid the very chilling effect that the Counsel General raises.

It deliberately sets a high bar for conviction – that someone has wilfully and knowingly stated something that they purport to be a statement of fact, and that could not reasonably be inferred to be a statement of opinion, belief or future intention. This rules out anything that could be seen as simply a different analysis, interpretation, or selective presentation of the facts, a prediction, an inadvertent error, a rhetorical flourish.

The test is whether the statement is demonstrably false and deceptive in a material particular (i.e. not in a trivial sense) and they have done so with the intent to mislead (i.e. not off the cuff, unplanned, in the heat-of-the-moment remarks).

Only the most clear-cut cases will proceed from initial consideration of a complaint to a full investigation in which the question of legal representation would arise. The offence will be prosecuted by the independent CPS which must, by law, decline to prosecute if (a) there is a less than 50% chance of success (i.e. proving the charge beyond reasonable doubt) or  (b) it is not in the public interest to do so. This means that trivial breaches of section 64 are highly unlikely to be prosecuted.

Where a politician gets into difficulties in relation to section 64, they will always have the option of simply correcting the record. This will immediately render any prosecution null and void.

In the very unlikely event that someone did find themselves in court then we are advised that the likely cost of a one-day trial which would be typical for a regulatory offence like this, based on average fixed fee costs, would be around £1,260 rising to a maximum of £5,000.

A question for further consideration could be whether the insurance that the Senedd currently provides to MSs to cover legal costs in defamation cases arising from their work as Senedd Members (and the same principle by which the legal expenses of Ministers facing criminal or civil proceedings arising out of their Ministerial roles is covered) could legitimately be extended to cover legal defences in cases such as this.

Parliamentary privilege

Much has been made of the prohibition on deliberate deception cutting across parliamentary privilege. In a letter to MSs the Counsel General said “the freedom of parliamentarians and others taking part in proceedings to speak freely without fear of criminal or civil action in the courts, has been one of the fundamental principles of our democracy since the 1688 Bill of Rights.”

That Privilege was invented to prevent the executive who controlled the courts in the 17th century from using them to sue Members for sedition. It is crucial it is not seen in the 21st century, by politicians or the public, simply as a licence to lie.

Furthermore the freedom the Counsel General cites do not fully apply to the Senedd. MSs do not enjoy the absolute immunity from prosecution as Article 9 of the Bill of Rights does not apply in our case. We only have immunity from civil defamation action and from criminal prosecution for contempt of court. We are liable to prosecution in all other cases (e.g. incitement to racial or religious hatred, breach of the Official Secret Act, encouragement of terrorism, etc).

This may change. As the Counsel General has noted, the Labour Party has pledged to give Senedd members Westminster-level absolute privilege if it forms an administration after Thursday. It’s been suggested to us that if Section 64 is passed this could in some way complicate this from happening.

The Sewell Convention, it is said, would mean that Westminster could not legislate in relation to a devolved offence. However, the Convention specifically allows the Senedd to give its consent in those areas which it is content for Westminster to proceed. So, if a majority were in favour then it would happen in which case this aspect of the discussion becomes a little academic.

Arguably in any case, the most harmful lies in modern politics are the ones made not in parliamentary proceedings, but on social media, in the TV studio and in election campaigns. So we could simply, on further consideration, amend the Section to exclude deliberate deceptions made in Senedd proceedings.

Voters should be the judge, not courts

One of the main principled arguments against a new criminal offence of “deception” is that these are matters best dealt with by a Standards approach within a Parliament, not externally by courts.

The Counsel General argues that the amendment seeks to bypass the work currently underway by the Standards of Conduct Committee inquiry into individual Member accountability. This is principally looking at how to introduce a ‘recall’ process for Senedd Members who are found to have breached the Standards process in the Senedd.

In Westminster a formal sanction opens the way for constituents to trigger a by-election to test whether the sitting member retains public confidence. That will be trickier under the new Closed-List system being used for future Senedd elections, but the Standards of Conduct Committee is considering how that could work in time for the next Senedd term.

The Counsel General has not explained the reason for his preference for a Standards process and a recall mechanism given that they have been in place in Westminster since 2015 and have failed to stem the slide in public trust. He has not explained why he believes this will succeed in Wales where they have not in Westminster, or indeed anywhere else.

While the Counsel General has not proposed a substantial alternative to Section 64, it is clear that the Government wants to fold in the issue of deliberate lying into this standards process to create ‘a single, integrated and coherent system’ for addressing breaches to the Code of Conduct ‘without the creation of a criminal offence.

Mick Antoniw says the approach agreed to in the Section 64 amendment would create “a fragmented approach, as it creates a separate legal process uniquely for the purpose of addressing wilful deception rather than considering this issue as part of the wider picture on member accountability”.

The key problem with this approach is that the Standards process will only apply to current Senedd members, not candidates. It will not, therefore, address the harm of populist false statements of fact that section 64 targets.

Too late in the day

In his Nation.Cymru article Mick Antoniw said the amendment has been “suddenly bolted on” to Elections Bill at the committee stage. Yet this stage of scrutiny, Stage 2,  is described as an ‘amending stage’.

The Counsel General worries that while the rest of the Bill was consulted on in a White Paper 18 months ago, and has since been subject to detailed conversations with stakeholders, the new Section 64 has had no effective parliamentary scrutiny.

He said “It is wholly inappropriate to introduce an amendment of such significant constitutional importance with no scrutiny of the general principles, no consultation, no engagement with judiciary, police, lawyers, academics, the crown prosecution service, or any other stakeholders…The Welsh Parliament does not have a revising second chamber so making change without such proper scrutiny is bad for democracy”.

In effect his position would mean that the Government is the only branch that can introduce changes of ‘significant constitutional importance‘.

Now of course the amendment has been scrutinised and voted on in the Senedd’s committee stage, and evidence sessions have been held by the Standards Committee.

Some of the most important social and political reforms in parliamentary democracies worldwide were proposed by non-Government politicians; the prohibition of discrimination on the grounds of sex in the US in 1964, and on the grounds of sexual orientation in Canada in 1977, happened through backbench amendments, probaby decades earlier than would have happened otherwise.  Change is not always a top-down phenomenon – and Governments do not enjoy a monopoly on wisdom.

It would be arrogant and anti-parliamentary for any Government to somehow suggest that Opposition parties and backbench members can only make small, insignificant changes to  parliamentary Bills at the amending stage.

Flawed legislation

The Government claims that the amendment passed in committee has ‘several serious technical defects adversely affecting its clarity and effectiveness’. There is of course an opportunity to address them in the remaining stages of scrutiny.

The Counsel General also says there is a risk of referral of the Bill to the Supreme Court, which would delay implementation of the Bill and prevent reforms from being implemented before the next Senedd election. Or it could be vetoed altogether by the Secretary of State for Wales using their section 114 power to prevent the Bill from receiving Royal Assent and becoming law at all.

Section 64 has benefited from quite extensive parliamentary scrutiny (across two legislatures based as it was on on original bills drafted with the help of  parliamentary clerks in the House of Commons) and in the context of four stages, inclusive of next Tuesday, of two different Senedd bills, with expert legal opinion, including KCs and the Senedd legal advisers, and collaborative input involving all parties represented in the Senedd.  It has been revised at every stage.

Indeed a series of amendments that respond further to issues raised at Stage 2 and in subsequent discussion across all parties in the Senedd have been submitted for debate on Tuesday. It is a matter of great regret that the Government has so far refused to engage constructively in the same collaborative spirit.

What next?

It would be wrong to suggest that there is no further room for improvement or scope for wider consultation and scrutiny. We would acknowledge that need. We would welcome the opportunity to engage on issues of practical implementation with all stakeholders, including the criminal justice system. It is important to note in this regard that the senior figures in Welsh policing with whom we have spoken do not anticipate that Section 64 would represent a “significant burden”

We hope the revisions pass on Tuesday. Then we have time and opportunity for all parties to sit down together to discuss how we can consult and amend this proposal to get it right – either through a further Report Stage or, as one of the amendments proposes, through a delayed implementation which would allow a 12 month consultation and further process of parliamentary revision.

This could yet be an opportunity to do democracy differently: collaboratively, and with Wales not afraid to lead the world.

As Jennifer Nadel from Compassion in Politics told the Senedd’s Standards Committee, “Facts are facts and we are at a very dangerous moment in history.

Adam Price is the Plaid Cymru Member of the Senedd for Carmarthen East and Dinefwr, Lee Waters is the Welsh Labour Member of the Senedd for the Llanelli constituency.