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Is there any legal ground to prosecute a politician for lying to the public where their lie gave them political gain?

EJoshuaS - Stand with Ukraine
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Mocas
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6 Answers6

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We're going to find out, in Ball v Johnson. This case is a private prosecution of Boris Johnson for alleged misconduct in public office (as MP and Mayor of London - two public offices). Misconduct in public office is a criminal offence with a maximum punishment of life imprisonment. The alleged misconduct includes lying in statements of fact on a number of occasions about the UK's monetary contributions to the EU budget.

I imagine the court will criticise Johnson but say it is for the normal democratic process, not the courts, to regulate such political speech, even misleading or false speech. That he can be voted out by his constituents at the next election or (as MP) held to account by the Committee for Standards in Public Life. However, that is just my speculation.

Here are the decision and reasons for granting the summons in the case.

However the High Court disagreed with the district court judge. Apparently, the judge agreed with Johnson's lawyer that the prosecution was "vexatious" and "politically motivated". The High Court dismissed the case and quashed the summons.

James K
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Lag
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  • Does this mean this is the first time ever a politician is asked to appear in court? – Mocas May 30 '19 at 12:03
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    @Mocas in this general way, yes. The idea of using the courts to try and force political ends (or in this case to punish someone for lying, and crucially, being on the opposing side to you) is a relatively new phenomenon –  May 30 '19 at 12:18
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    This anwer could be improved by clarifying that the alleged offence in this case is misconduct in public office. Someone can hold a public office in the UK without being a politician; even a (prison) nurse qualified in a case. Likewise, one can probably be a politician and not hold any public office at one specific time. Also Ball is private prosecutor. – the gods from engineering May 30 '19 at 19:05
  • @Fizz I have tried to add detail per your suggestion. Please let me know if it is insufficient. – Lag May 30 '19 at 19:59
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    I think (as an ardent Remainer) that your speculation as to what will happen would be the right result. I quite like the idea of requiring politicians not to lie, but I don't like the idea that only politicians who have been already elected (or are in "public" jobs) are required not to lie. – Martin Bonner supports Monica May 31 '19 at 07:18
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    @Orangesandlemons: actually the idea is quite old, people just need to learn some history to figure out it’s a bad idea. – jmoreno May 31 '19 at 23:51
  • @jmoreno fair enough, although the topics of the court cases themselves used to be less directly related to the politics they were being brought to thwart –  Jun 01 '19 at 22:37
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    This answer could now be updated following the High Court decision to quash the summons. – James K Jun 07 '19 at 20:31
  • From the latest link, "Reasons for the High Court's ruling will be given at a later date." It seems odd we have to wait for the reasons for the dismissal. – Jontia Jun 09 '19 at 12:08
  • @Jontia it takes a judge a different amount of time to come to a decision, than to give a researched legal opinion as to why. – Caleth Jun 10 '19 at 09:31
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    @Caleth from a non-expert point of view that sounds terrible. Go with your gut instinct and then justify it later? – Jontia Jun 10 '19 at 10:02
  • @Jontia It's more "do the legwork of finding the relevant quotes of the case you were thinking of, arrange your thoughts in a coherent order". It's the same as being able to plan an essay in the first 5% of an exam, and then taking the next 95% actually writing it – Caleth Jun 10 '19 at 10:08
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    @Caleth we'll get sent off to chat, but I don't think that's a great analogy because while you're writing an essay in an exam you can't go off and do extra research. Honestly I'd feel better about the whole process if we got reasons at the point the decision was made, even if it was "and this will get padded out with references later" at the moment it feels like an opinion rather than a position. And contrasts strongly with the lower court decision to proceed where the reasons were published immediately. – Jontia Jun 10 '19 at 10:12
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    @Jontia The point is that you know what the conclusion is going to be, you've done the thinking. That gets published, because (in this case) it allows all the sides to carry on with their life. The actual writing portion is useful, but not urgent – Caleth Jun 10 '19 at 10:15
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    @Jontia The current case might be clear enough to allow an immediate decision. However, the actual writing will create case law, and will be referenced in the future; It should give guidelines to the lower courts how to handle similar cases. Therefore it should be written carefully and cover more ground than the case itself. – Sjoerd Jun 10 '19 at 15:52
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Under very specific circumstances, there is already case law that some lies for gain during elections can be illegal.

In the 2010 General Election Phil Woolas originally won the seat of Oldham East and Saddleworth in an extremely ill-tempered contest against the Liberal Democrat Elwyn Watkins. Subsequently Watkins issued a petition against the result under section 106 of the Representation of the People Act about election leaflets implying he was a friend to terrorists and taking slush money from foreign powers. An election court found in Watkins' favour, and a new by-election was called, with Woolas now disqualified from holding elected office.

CJ Dennis
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origimbo
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    For more context, section 106 prohibits lying about another candidate:

    "Section 106 makes it illegal for any person to publish any false statement of fact in relation to the candidate's personal character or conduct, unless he or she can show that he had reasonable grounds for believing that statement to be true. Similar provisions in previous laws have made this illegal since 1895."

     – the gods from engineering May 30 '19 at 13:56
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    This case sounds different. In the Oldham case, Woolas libeled his opponent. The Brexiteers just made claims about how awesome Brexit would be. – Clint Eastwood May 30 '19 at 15:17
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    @ClintEastwood, rather they "libeled the EU"... – PatrickT May 30 '19 at 16:34
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    EU isn't a person and was not damaged. – Clint Eastwood May 30 '19 at 16:37
  • @ClintEastwood: Regarding your 1st comment: the OP phrased the question poorly, so no wonder he got an answer he/you didn't/don't expect. – the gods from engineering May 30 '19 at 18:36
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    Isn't that outright slander though? It seems like blatantly slandering your opponent is different than something that's merely a lie. – EJoshuaS - Stand with Ukraine May 30 '19 at 19:04
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    @EJoshuaS it was defamatory (libellous - being printed), but a civil suit for libel wouldn't have voided the election result. – Lag May 30 '19 at 19:21
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    I suppose that's true. Egregious slander still seems like a special case, though. – EJoshuaS - Stand with Ukraine May 30 '19 at 19:31
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    @Clint if we're talking about boris. It wasn't the (highly dubious) claims about the future that have got him in trouble but the (clearly false) claims about the present – Richard Tingle May 30 '19 at 20:01
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    Voting down, because I think the answer should make it clear that, in the specific example given, the lies would have been illegal anyway, because they were libelous, regardless of any political link or ramifications. – Time4Tea May 30 '19 at 20:32
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    @Time4Tea if it was just libel, would it make void the election result and call a by election? I'd assume it would just award damages? – JJJ May 31 '19 at 09:34
  • @JJJ Only an election court could do that directly, which needs a corrupt election practice. Some criminal sentences would have the same effect (i.e. disqualify Woolas and force an election), but criminal libel stopped being a thing in 2010. – origimbo May 31 '19 at 11:05
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    @ClintEastwood EU isn't a person and was not damaged. The target doesn't need to be a person for libel to occur and if having countries leaving the EU (using lies or not) is not a damage to the EU then one would wonder what advantages countries expected to achieve by creating the EU at all. – SantiBailors May 31 '19 at 13:58
  • @SantiBailors I think there would be a nontrivial question of what entity actually has standing to bring suit on behalf of the EU, and whether it is justified for that entity to recover damages on behalf of the EU. – IllusiveBrian May 31 '19 at 22:18
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    @ClintEastwood They used outright lies to make their claims though. They were told repeatedly by people such as the national statistics authority and multiple other neutral bodies that their figures were completely wrong. They kept using them anyway. This is a big step away from "spin" and into outright lying. – Tim B Jun 01 '19 at 10:21
  • @TimB If one has to use net instead of gross figures, every claim "built with support from the EU" in the UK would be a lie as well. As clearly, when using net figures, the UK itself has paid for it. – Sjoerd Jun 09 '19 at 11:17
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    @Sjoerd You really thought that was a convincing argument? – Tim B Jun 09 '19 at 22:38
  • @TimB You don't seem to have any counter-argument, so yes. – Sjoerd Jun 09 '19 at 22:51
  • @Sjoerd You're comparing two different things and if you you need help understanding the word "send" there's not much I can do for you. – Tim B Jun 10 '19 at 08:40
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Political speeches are not given under oath, and there is no general ban on lying, using deceptive speech, bending the truth, being economical with the truth. These are not explicitly disallowed.

The Johnson case makes an interesting argument, that lying is a form of "misconduct in public office". This is, as yet, untested. Existing precedent is that political statements are not treated specially. There are particular laws against libel and slander, but these apply to everyone, not just politicians. It is up to the voters to decide if they believe a politician and vote accordingly.

There is a principle of "Freedom of expression" which is in article 10 of the Human rights act. It is a right to hold an opinion and to express it, even if that opinion is "wrong". It can be very hard to distinguish between a "lie" and "being wrong". Even harder to distinguish between a "lie", and a deliberate oversimplification to make a rhetorical point.

James K
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  • Does the alleged 'misconduct in public office' involve using funds from that office? If so (even in the allegation), that'd be a nice addition. – JJJ May 30 '19 at 22:12
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    If lying can be considered a form of 'misconduct in public office', that will have major ramifications for UK politics. Think back to Tony Blair and the Iraq dossier .. – Time4Tea May 30 '19 at 23:28
  • @Time4Tea Parliament would probably quickly pass an amended version of the law that gives them more wiggle room. Parliament can always change things. – zibadawa timmy May 31 '19 at 02:42
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    Also remember "parlimentary privilege". What is said in parliament is subject to parliament's rules, not the courts. – James K May 31 '19 at 06:11
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    Article 10: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” – Simd May 31 '19 at 06:22
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    @JJJ There is (as far as I can see), no allegation that Boris misused funds from that office. – Martin Bonner supports Monica May 31 '19 at 07:14
  • using deceptive speech, bending the truth, being economical with the truth - simply "lying" is enough. It covers each of those cases :) – user91988 May 31 '19 at 19:30
  • @MartinBonner Correct. Brexit Justice is purely and only about public officials blatantly lying to the public and keeping using the same lies even after they knew they were false. – Tim B Jun 01 '19 at 10:22
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Yes, see Timothy Morrison and others v Alistair Carmichael MP and Alistair Buchan in 2015.

Alastair Carmichael escaped punishment when it had not been proved beyond reasonable doubt that he had committed an "illegal practice" at an Election Court in 2015 after a case was brought against him by several of his constituents over remarks made prior to the 2015 general election in the wake of a false leak from the Scotland Office which he headed alleging comments made by First Minister Nicola Sturgeon to the French ambassador.

While the judges found that he lied (in fact told a "blatent lie"), and did so for political gain, he got off on the technicality that the lies were not considered to be "in relation to [his] personal character or conduct", which is part of the test for the offence under the Representation of the People Act 1983.

“It is of the essence of section 106 that it does not apply to lies in general: it applies only to lies in relation to the personal character or conduct of a candidate made before or during an election for the purpose of affecting that candidate’s return,” Lady Paton said.

James
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    The 'technicality' is not a technicality in that the offence is specifically limited to certain lies. A technicality would be getting off where the intention of the law was to stop such activities; in this case it wasn't –  Jun 02 '19 at 09:31
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Perhaps until it is tested in court in Ball v Johnson we will not know whether it is legal or not.

However, the way I see it is that hyperbole and platitudinous argument are one thing, but when you go so far as to paint an erroneous fact, and one that is markedly relevant to a political campaign, on the side of a bus as though it were uncontested truth, I do believe you have crossed a line. And if it is done, knowingly, by a public official in that capacity, it surely amounts to misconduct, doesn't it?

This could become a very important case in confirming where the law stands on matters of fake news, as well as where political campaigning ends and misconduct begins. For if it is found NOT to be misconduct, given the ease of publication that exists today, it would seem to me to give a legal blessing to heavily funded fake news. So that in the end what amounted to "the truth" would be what someone had obtained sufficient funding to disseminate - an Orwellian prospect if ever there was one.

WS2
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    I think this is the core point. We need to make a stand here or otherwise we might as well give up on any semblance of truth in politics. When an outright and easily debunked lie knowingly told is allowed to be the major feature of a campaign and that campaign goes on to "win" with no consequences then we've basically given up on facts. – Tim B Jun 01 '19 at 10:24
  • @TimB Yes I am hoping that Marcus Ball is another Gina Miller, and that he doesn't give up on this at the first hurdle. It is a clear, well-understood, and blatant example of the way our politics is being manipulated at the moment. – WS2 Jun 01 '19 at 12:55
  • well he's been working on it for 2 years supported by crowdfunding so he's shown dedication so far. – Tim B Jun 01 '19 at 21:27
  • @TimB I worded that badly. I didn't mean to suggest deficiency on his part - simply that knowing how perverse the legal system can be, that it will not prove overwhelming. – WS2 Jun 01 '19 at 21:52
  • @WS2 you're calling the legal system perverse because it may make a decision based on the law and not your own beliefs of at which point a line is crossed. The irony is overwhelming. –  Jun 02 '19 at 09:32
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    @Orangesandlemons It is certainly not only Remainers who perceive perversity in the legal system. I remember something about judges being called "Enemies of the people". I suppose perversity is in the eye of the beholder. – WS2 Jun 02 '19 at 09:49
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    It wasn't a lie though, in fact the ONS own statistics show the campaign under estimated the amount the EU costs us each week. The argument was that because of the rebate and some other funds the net amount we physically send the EU is less than what was claimed. To me this is a very technical point and, more importantly, the claim was a part of the debate during the referendum which was the right forum to test and explore it. – deep64blue Jun 08 '19 at 11:01
  • @AlanDev If we were to use net figures, any claim "built with support from the EU" in the UK would be a lie. Somehow, those suggesting to use net figures in this case, never protested against all those claims in the previous years. – Sjoerd Jun 09 '19 at 11:19
  • @AlanDev Whether you call it "a lie" could be a matter of semantics - but it was clear "misrepresentation" since it proposed that a similar sum could be given to the NHS. Clearly it couldn't have been. Regrettably, now the case has been closed the answer to the OP's question is "yes". It is legal for politicians to lie to the public in the UK. Indeed one or two have, as a result of this case, maintained they "have a right to lie" - or words to similar effect. – WS2 Jun 09 '19 at 20:38
  • @AlanDev "We send the EU £350m a week" was the claim. It was false. Knowing it was false, it would be a lie to repeat it as if it were true. It was a claim intended to provoke controversy, to keep the fact that we send hundreds of millions in the news, making Remainers acknowledge that as they argued against the specifics. "in fact the ONS own statistics show the campaign under estimated the amount the EU costs us each week" - ah yes, you seem to have been convinced by Johnson's and Vote Leave's doubling-down on the original claim by twisting it even further. We "send" less than £350m a week. – Lag Jun 10 '19 at 07:39
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Marcus Ball is taking Boris Johnson to court, for misconduct in public office, and the alleged misconduct happened by Johnson lying about the amount of the money the UK sends to the EU.

He is not taken to court just for lying, so it looks like Marcus Ball doesn't believe that "politicians lying to the public for political gain" is something you can win in a court case, at least not in the case of Boris Johnson. So as far as the question is concerned, the answer would be "usually no". There have to be added elements. The lying could be fraud, or as claimed here, "misconduct in public office", but usually the lying alone is not enough.

On the other hand, the court has accepted the case. I think the only claimed wrongdoing is the lying, so it seems that the court assumes lying to the public can in the right circumstances be a "misconduct in public office" and punishable. Again to the question: Yes, lying to the public for political gain can in the right circumstances be illegal "misconduct in public office".

What's open is whether Marcus Ball can prove that Johnson was lying (that would be the easy part), and that he can convince the court that this particular lying would be "misconduct in public office". Johnson's lawyers seem to claim that a requirement for "misconduct in public office" is abuse of power of the office (or failure to use the power of the office which wouldn't be the case here). If that theory is right, then Ball would have to prove that the lying was "abuse of the power of the office".

PS. Case thrown out. Johnson keeps insisting that black is white.

gnasher729
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