Thursday, February 22

The big idea: should we have a ‘truth law’? | Books

For months the British government has floated the idea of ​​unilaterally breaking the so-called Northern Ireland protocol, part of the withdrawal treaty it agreed with the European Union. That would undermine the Good Friday agreement, revive the prospect of sectarian violence and damage the UK’s international reputation. Such action demands a weighty justification and ministers have one, with the attorney general arguing that “Northern Ireland’s economy is lagging behind the rest of the UK”.

Except it’s not. Statistics show that Northern Ireland is outstripping every part of the UK except London.

In recent years politicians have repeatedly based the case for historic changes on lies. These have ranged from the infamous “Brexit bus”, which promised £350m a week for the NHS, to government framing of recent rail strikes as “selfish” because, as Boris Johnson told one interviewer: “Train drivers are on £59,000 and some are on £70,000.” (The average wage of a striker is below £36,000.) Politicians consistently mislead about issues of national importance. I know this first-hand – I was part of the legal team that proved Johnson’s prorogation of parliament in 2019 was unlawful.

Truth is democracy’s most important moral value. We work out our direction, as a society, through public discourse. Power and wealth confer an advantage in this: the more people you can reach (by virtue of enjoying easy access to the media, or even controlling sections of it), the more likely you are to bring others round to your point of view. The rich and powerful may be able to reach more people but, if their arguments are required to conform to reality, we can at least hold them to account. Truth is a great leveller.

The problem is that our public discourse has become increasingly divorced from reality. The pollster Ipsos Mori conducts regular surveys on what the British public believes about the facts behind frequently discussed issues. In one memorable study it discovered that, in the words of one headline, “the British public is wrong about nearly everything”. Among the concerns was benefit fraud: people surveyed estimated that around £24 of every £100 of benefits was fraudulently claimed, whereas the actual figure was 70p. When asked about immigration, people estimated that 31% of the population were born outside the UK, when in truth it was 13%.

Members of parliament have played a prominent role in getting us to this point. They make and vote on laws, help set the political agenda and influence the national conversation. Of course, politicians have always had a tendentious relationship with the truth. From the Zinoviev letter to the Profumo affair, history is littered with scandals that result from lies being exposed. Profumo resigned because he misled parliament eleven. Today’s ministers regularly do the same with impunity.

Commentators often paint Johnson as uniquely mendacious, but he is merely the latest prime minister to embrace lying for political gain. David Cameron won two elections by misleading the country about the causes of the financial crash and the economic impacts of austerity. Theresa May built her early career in government on dubious anti-immigration rhetoric, notably the lie that one immigrant had been allowed to stay in the country because he had a pet cat.

Democracy cannot function properly in this environment and an existential problem demands a radical solution. So, MPs (and peers in the House of Lords) should be formally required to tell the truth: in the debating chamber, on TV, in print and on social media. To publish a statement that willfully or negligently misrepresents information should be classed as misconduct in public office (a criminal offence). In other words: we need a truth law.

Ensuring the offense captures both “wilful” and “negligent” misrepresentation will obviate spurious defenses such as Johnson’s claim that he thought the Downing Street parties were “work events”. With researchers and civil servants at their disposal, parliamentarians have no excuse for misrepresenting the facts. Even so, I suggest that they should not be prosecuted if they correct the record and apologize in parliament within seven days.

Radical as it may seem, we already have all the tools to make this work within established law. “Publish” has a clear legal meaning (essentially “to make public”). Tests of willfulness or negligence are frequently applied across civil and criminal law. Determining whether someone has “misrepresented information” (ie, not told the truth) is often the core business of the courts. The penalty for misconduct can go all the way up to life imprisonment. While some may find that rather satisfying, I suggest limiting it, in this class of cases, to a fine. The courts should also have the power to refer an offender to the Standards Committee for further parliamentary sanction.

I imagine that there will be two main objections to this idea. First, it may have a chilling effect on parliamentarians’ free expression. But parliamentarians are not ordinary citizens. They hold a special position of trust and power, which they assume voluntarily, and for which they are rewarded handsomely. It’s right that they should be subject to stricter rules. Many professions limit the freedom of expression of their members in the public interest. As a barrister I am subject to “truth telling” rules which, if breached, could end my career (and potentially lead to a prosecution for contempt of court). Politicians’ words have more influence than barristers’, so it’s fair to subject them to more exacting standards.

Second, any truth law would breach “parliamentary privilege.” This guarantees that MPs will not be prosecuted for anything they say in parliament. That rule was developed to stop monarchs persecuting their political opponents. It was never intended to be a license to lie. We now have an independent prosecution authority and independent courts: it’s time we addressed today’s challenges to democracy, not ones that were last relevant centuries ago.

My proposal won’t eradicate lying in public life. But it’s an important first step. Imagine, for a moment, that we could genuinely trust our elected representatives. That shouldn’t be a utopian ideal – and in the law, we have the means to make it a reality.

Overruled: Confronting Our Vanishing Democracy in 8 Cases by Sam Fowles is published by Oneworld.

further reading

The Assault on Truth: Boris Johnson, Donald Trump and the Emergence of a New Moral Barbarism by Peter Oborne (Simon & Schuster, £12.99)

Heroic Failure: Brexit and the Politics of Pain by Fintan O’Toole (Apollo, £9.99)

Freedom to Think: The Long Struggle to Liberate Our Minds by Susie Alegre (Atlantic, £20)

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