This is the question the Welsh Parliament is considering. The Standards of Conduct Committee in the Senedd is currently holding an inquiry into Individual Member Accountability, including whether deception in politics should be a criminal offence.  

Faced with daily headlines of politicians and candidates for election being accused of bending the truth as well as seeing poll after poll showing that the public think that all politicians are in it for themselves one can see why this might seem like an attractive proposition. Outlaw lying. Force politicians to tell the truth. Surely this would restore the public’s declining faith in our political system? 

TI-UK’s response to this inquiry involved research, discussion and challenge as we sought to think through how an offence of deception might work. It included a lot of reading, from evidence given to the Senedd and debates in the Siambr to Hannah Arendt’s treatises ‘Truth and Politics’ and ‘Lying in Politics’; Simon Kuper’s ‘Good Chaps’; Peter Oborne’s ‘The Assault on Truth’ and more. We also debated the issues and tested scenarios as a team.  

It’s important to recognise that deception in public life is a problem. Declining trust in politics and politicians is directly linked to failures of integrity and a perceived lack of accountability. Strengthening accountability systems, improving the transparency of how decisions are made, and how politicians are held to account are important responses to this. 

Whenever TI-UK make recommendations for reform, we want them to be a pragmatic solution that will bring lasting improvement and ensure greater public trust in our democratic systems.  

So we asked ourselves if this seemingly simple response of making lying illegal met those conditions. Here are some of the questions we discussed:  

How would you prosecute a lie? 

Defining a lie, especially in a political context is challenging.  

The truth of Bill Clinton’s statement ‘I did not have sexual relations with that woman’ relies entirely on the interpretation of ‘sexual relations’ which is arguably dependent on individual understanding of the term.  

More recently, Lisa Nandy MP said in an interview that she hadn’t accepted free clothes from a donor: ‘I haven’t and I wouldn’t’. Her register of interests subsequently revealed a loan of clothing. The defence against this being a lie is that the outfit was returned making it simply a loan.  

Politics is built on this sort of wordplay and interpretation of facts, it’s the nature of pursuing an argument based on a political belief – you may not agree with my opinion, but I have every right to state it. To try and legislate the use of language whilst also providing for different interpretations based on political affiliation seems nigh on impossible. It is also open to abuse and could risk creating more public dissatisfaction as people see what they perceive to be lies going unpunished. 

Who would be responsible for the lie? 

In considering the genesis of a dishonest statement, there is a clear risk that people who do not hold political office but do work in politics and policy could find themselves at risk of responsibility for alleged untruths. This could be used maliciously by those seeking to undermine campaigners for policy change. Even without malice, the burden of responsibility of knowing that the accusation of deception was available would be a level of additional stress placed on anyone responsible for briefing those in power.  

If the alleged dishonest statement is a party-political campaign slogan (say a claim of £350m a week for the NHS), who is responsible for the lie? Should everyone who repeats the lie be held accountable or just the person who initially created it? What if that person has no political role?  

If the alleged deception comes about because of a civil service briefing, or a stakeholder report, or a parliamentary staffer’s research, who is responsible for the untruth?  

Equally, how would one provide for policy choices? Is ‘we had to keep the two-child cap’ a lie or a choice? It seems obviously a policy choice but arguably if you could justify a different choice then why can’t this statement be intended to deceive? 

Even if the offence is in making a dishonest statement, placing the onus on the speaker to ensure the statement is true, this places a burden on the speaker that could be said to be disproportionate. Political speech often relies on briefings from ministerial officials, civil servants, internal party research, the politician’s staff, or external sources including those seeking to influence policy making. These sources all have their own opinions, interpretations and motivations for providing the briefing. Is it realistic to expect all those holding or seeking political office to fact check every statement before they utter it? 

Might people abuse the threat of legal action? 

The threat of legal action is a tool open to abuse by those with deep pockets who wish to silence discussion for their own benefit. As is demonstrated by the chilling effect of Strategic Litigation Against Public Participation (SLAPPs), those who seek to prevent people speaking truth to power will use financial resources to quiet challengers.  

SLAPP suits often have little chance of succeeding should they make it to trial but winning in court is not the objective. Instead, wealthy individuals employ specialist lawyers to send letters threatening libel action against journalists and civil society who publish legitimate, public interest reporting about them. These legal threats and demands for huge damages are often enough to block publication, but if they’re not, the next stage is to further turn the screw by dragging out pre-trial proceedings for as long as possible.  

It is not difficult to imagine the same tactics being brought to bear using the accusation of statements being false or deceptive.  

Is there a conflict with parliamentary sovereignty? 

The recent European Court of Human Rights decision in Paterson v. the United Kingdom restated the court’s opinion about the autonomy of Parliament. Paragraph 52 of that decision states:  

"The Court notes that the rules concerning the internal operation of Parliament are the exemplification of the well-established constitutional principle of the autonomy of Parliament. ... In accordance with this principle... Parliament is entitled ... to regulate its own internal affairs, such as, inter alia, its internal organisation, the composition of its bodies and maintaining good order during debates. The autonomy of Parliament evidently extends to Parliament’s power to enforce rules aimed at ensuring the orderly conduct of parliamentary business.”  

This reinforces the constitutional principle of the autonomy of Parliament and that the courts should not be involved in regulating the business of Parliament including how standards rules are upheld. 

How else might standards of conduct be strengthened? 

All this is not to say that the current systems could not be improved.  

We do consider that current process in the Senedd could be enhanced. To avoid political capture of the committee process, we recommend that the Senedd follow the example set by the Committee on Standards at Westminster and appoint lay members. These lay members should always be involved in consideration of complaints and sanctions of Members of the Senedd.  

Possible sanctions should be clarified and published. Ad hoc sanctions should be avoided. This will both instil confidence that there are sanctions available which seem proportionate, with the most egregious breaches subject to more serious sanctions. This should also act as a deterrence to wrongdoing and aid any determination process as there would be a clear expected sanction. 

Would trust be restored? 

A large part of the problem of declining trust is that people think the system is rigged in favour of some over others, that rules are not applied equally, and that rule-breakers are not held to account. Introducing an offence that would be hard to prove and difficult to prosecute risks simply adding another mechanism where the public see no accountability for the perceived or alleged offence.  

There is a definite need for a re-set in the relationship between politicians and the public, and a commitment to upholding the principles of integrity in public life should be second nature to all elected representatives. But when the public see accountability measures failing, we must ensure that any measure that seeks to enforce those rules is capable of delivering. For TI-UK, an offence of deception in political life does not meet that requirement, and at worse, risks simply introducing another measure by which the public perceive politicians to get away with breaking the rules.   

So, after all this, our final position, as laid out in our response to the Committee Inquiry, is that making a false or deceptive statement of fact should not be made a crime or be made subject to civil sanctions for the reasons outlined above.  

We fear that no public good would be served by doing so, that it would not meet the objective of restoring trust and could risk increased public dissatisfaction with accountability measures. It would also be open to abuse, further undermining political life and exposing politicians to the whim of the wealthy seeking only to benefit themselves rather than the wider public good. 

Instead, we would suggest that strengthening existing accountability mechanisms, including bringing the public into that process, would be a more effective way to restore trust in politicians and in the capability of the system to hold elected members accountable.