On 24 June 2016, the day after the United Kingdom’s referendum on membership of the European Union, the following 14 things all happened:
- UK sovereignty in Gibraltar was directly threatened by Spain
- The pound went to its lowest level since 1985, dropping twice as far as it did on Black Wednesday
- In a single day's trading the UK stock exchange lost more value than the UK had paid in EU contributions in the entire 43-year history of its membership
- UK sovereignty in Northern Ireland was destabilised by a call for a referendum
- UK sovereignty in Scotland was destabilised by a call for a referendum
- UK sovereignty in London itself (astoundingly enough) was destabilised by a call for a Unilateral Declaration of Independence for London
- We heard about the first bank intending to pull workers out of the City of London
- We were given warning of a sharp rise in the cost of petrol at the pump and of a "review" of their British operations by Airbus
- We were given warning that the UK was about to lose its AAA credit rating with the rating agency Standard and Poor
- The UK PM resigned
- A motion of no confidence in the leader of the UK opposition was floated
- Iran, Trump, and Putin started audibly gloating about Brexit
- David Cameron's much-trumpeted "renegotiation" deal of March was declared null and void by the EU
- And lots and lots of Leave voters--maybe the same Leave voters who didn't want to vote in pencil in case MI5 came round and rubbed out their votes, and who were protesting loudly in polling stations because there were signs that said WAY IN--told us they didn't really mean it.
This single calamitous day for the United Kingdom came the morning after the referendum, which the Leave side won by a little less than 4%, on a turnout of around 70%. The referendum itself came the end of a four-month campaign during which the leaders of the Leave campaign, in particular Nigel Farage, Boris Johnson, and Michael Gove, had insisted (a) that Leave was a great idea for the sovereignty of the UK, (b) that Leave meant “taking back control”, and (c) that the Remain campaign had been shamelessly scaremongering—engaged in “Project Fear” and “talking down the country”, as they liked to call it.
But as my list of 14 suggests (other lists of 14 or more are available), it was already evident on this very first post-Brexit day (a) that the Leave campaign was at the very least a source of very serious economic, constitutional, and social problems to the UK, (b) that the Leave campaign was at the very least a serious threat to any kind of political or economic control, and (c) that the Remain campaign had if anything rather understated the problems immediately consequent on Brexit, problems of which fear was an entirely reasonable anticipation, and to which no amount of chest-puffing bullishness about Britain was likely to provide any realistic antidote.
Also on that first day or very shortly after, leading Leave campaigners stepped back sharply from a number of actual or implied claims that had been absolutely central to their campaigning for their electoral victory. In particular, they admitted at once that two of their central claims were false: first that EU membership cost Britain £350m a week which could otherwise be spent on the NHS, and secondly that Brexit would reduce migration. Yet these two false claims in particular had very evidently been central to the Leavers’ campaigning, and to its persuasive impact on undecided voters, who regularly reported that two of their main reasons for deciding to vote Leave were immigration and cuts “caused by the EU”. (As the Leave campaign repeatedly insinuated; in fact nearly all the cuts or underfundings that they cited in this respect were more attributable to other factors, and in particular to government policies that the Leave campaigners themselves, in company of course with a number of leading Conservative Remain campaigners including the PM, had either introduced in Cabinet or supported in Parliament or both.)
A further claim made repeatedly and influentially in Leave campaigning was, (a) that Turkey’s accession to the EU was imminent and (b) that the UK could do nothing to prevent it. This one that I have not yet seen them repudiate; but that claim too is demonstrably false in both its parts.
The same holds for a fourth falsehood that the Leave campaign often asserted, (a) that the EU was actively moving towards the organisation of a European army and (b) that the UK’s armed forces would be obliged to become part of this army.
Fifthly, the Leave campaign asserted repeatedly and emphatically that “taking back control” of our borders would mean border-checks on all UK borders. Since winning the referendum, they have repudiated the idea of border controls on the UK’s only land border, that with the Irish Republic, (as detailed in a previous Open Learn article). Either, therefore, they were knowingly making a false promise during the campaign, or they have made the promise in good faith but without noticing a really very obvious reason why keeping it would be extremely problematic. This then is not a clear-cut case of intentional deception, although it is a clear case of either intentional deception or total confusion.
To mention this much is to mention only the Leave campaign’s deceptions by commission – deceptions through actively stated falsehoods. There is another story to be told about how they, and a whole generation of political commentators and pundits behind them, have deceived by omission. By this I mean not just their relentless negativity about the EU. They have failed to mention, and indeed at times actively suppressed any public mention, of almost anything from the extremely long list of positive aspects of the UK’s membership of the European Union.
It is not clear that it was even in Leave’s own narrow political interest to suppress these positives entirely. To much of the electorate in, for example, Ebbw Vale and Cornwall, it clearly came as a massive surprise when they discovered, on June 24, that they had just voted themselves out of receipt of millions of Euros per annum of EU grants. (In Ebbw Vale’s case, they lost at least £12.2m from 2016 alone; in Cornwall’s, they have been pledged at least £2.5bn of EU funding over the years 2000-2020.) The voters didn’t know about this Brussels largesse for a number of reasons; they themselves were of course partly responsible for their own ignorance of and uninterest in what the EU was actually doing to help them. But one other major reason was clearly the unwillingness of a Europhobic press and a “Euro-shy” officialdom to tell them about the positive side of the EU. On June 24 and following, this ignorance or ignoring of the positive data about the EU led directly to a great deal of “buyers’ remorse” among Leave voters (even ones as—presumably—well-informed as Kelvin Mackenzie, ex-editor of the remorselessly Europhobic Sun newspaper). At one point on June 24 the commonest search on the internet in the whole UK was “What is the EU?”. Many voters seem to have scrambled to understand the nature and consequences of a vote to leave the EU only once they had already voted; their unwillingness to find out any earlier is arguably learned behaviour, a programmed-in aversion to thinking about the EU at all. In any case, this “buyers’ remorse” quickly became a serious obstacle to the Brexit campaigners at the point where they were trying to get the public to accept the referendum decision.
One obvious philosophical question arising from this sorry tale is this: is deliberation binding when its results are arrived at by deception? As a question in the individual case, we have no difficulty at all in seeing that the answer to this question is “Of course not”. Ever since Plato, perhaps longer, it has been commonplace to make an analogy between individual agency and the agency of the political community. Plato, however, did not see the political community, as a whole, as a deliberator in our modern democratic sense; and right now it is certainly tempting, for any British political philosopher, to have more sympathy than usual with Plato’s sort of benevolent paternalism. Still, the point is obvious enough. If individual deliberation is regarded, as it clearly should be, as invalid when it has been warped by deception, and if the analogy between individual agency and political agency is good, then there is no reason why political deliberation should not equally be invalidated by deception.
Suppose we accept this conclusion, as in fact I do. Then we come to the momentous questions of what to do next, and of what if anything can salvaged from the heart-breaking, mind-numbing wreckage that is already resulting from the present decision. On the question of what to do next, my own view is that a general election is needed to give a democratic testing to my thesis that the referendum’s result is invalidated by deception.
As to what can be salvaged—well, one good thing we might try to pick out of the carnage is that we might seek to give legal implementation to the principle that political deliberation under conditions of deception can be invalid.
We need to do this in a way appropriate not to a Platonic dictatorship, but to a modern democracy. Notoriously democracies are—as Plato himself saw—prone by their very nature to “marketise” all sorts of commodities, even information. We have embedded in our society’s principles a deep commitment to the legal right of free speech. That commitment includes, unavoidably, the legal right (as opposed to the moral right) to deceptive, misleading, knowingly false, and wildly irrelevant assertion. I do not suggest that we ought to abridge this legal right to lie on any grounds whatever—least of all on Platonic grounds, given that Plato was prepared to mandate benevolent lying.
We should do something legal about the standing of electoral decisions that depend on deliberation that is tainted by deception. But I would move cautiously here, and avoid, for example, a move to make false speakers in politics criminally liable for any and every falsehood that they assert. One reason for not doing that is the inevitable overreach of any such law. In a democracy we are all speakers in political campaigns and debates, at least potentially, and it is only too easy to be, whether intentionally or not, a false speaker. Even if it were not a drastic abridgement of freedom of speech, still the courts would simply have too much to do to prosecute every false speaker in every political debate. The false speech we need to focus on is the false speech that makes most difference: in particular, false assertions made as central parts of electoral campaigning.
What I would like to see on the statute book is a law that where an electoral result has been obtained by a campaign any of whose central campaigning claims was demonstrably factually false, that electoral result is struck down.
This proposed law avoids trouble about head-counting. It is not essential for an appeal of the kind I envisage to count the numbers of people who have actually been deceived by a misleading campaign, still less to prove of any individuals that they in particular were deceived; the question that matters for my proposal is just whether a successful campaign had demonstrably false factual claims at its centre.
The proposed law avoids trouble about counterfactuals. It doesn’t require that a false campaigning claim be such that, had it not been made, the election would not have been won. What it requires is—as above—centrality. Which campaign claims are central? Is an election result appellable because a campaigner asserts, falsely, that Ludlow is in Staffordshire, or that the normal price of a pint of milk is £2, or some other such trivial fib? Centrality is a matter of judgement for the courts; but that strikes me as a healthy feature of my proposal, not a problem for it.
The proposed law doesn't address false promises. But no good law about political deception can, for two obvious reasons. First, it will usually take too long for it to become clear that a false promise has been made for it to be legally remediable by the striking-down of the election result. (If Mr A does not fulfil his electoral promise to do X before his fifteenth year in office, he is not necessarily a false promiser until then; nor if he is cast out of office in year fourteen.) Secondly, sincere politicians sometimes have to break campaign promises for perfectly good reasons; we have to allow them that room for manoeuvre, and the price of allowing it is that we allow insincere and lying promises to go unpunished in the way I am proposing. False promises will, then, still have to be punished in the traditional way: at the ballot box in the next election.
On second thoughts, where a false promise is insincerely made during the campaign and repudiated immediately after victory, why shouldn’t that victory be subject to legal challenge on the grounds that the promise in question was false? On reflection I think there is a strong case for allowing electoral promises of this sort to be challenged too. But challenges of this kind would need to be immediate; it would need to be true that there had been no significant change in political circumstances that now justified the repudiation of the promise and the courts would need to bear in mind the need for a particularly swift decision on these challenges.
In any case, can the law address deception by omission, i.e. deceptions that consist in simply not mentioning a centrally pertinent point? Not as easily as it can address deception by commission. But in principle this might be possible, in the right circumstances.
So what might this proposed law mean, in the case of the Leave the EU campaign? Unless we accept the “second thoughts” that I have just aired, the Leave campaigners could not be liable under it for promising, falsely as they now admit, to spend £350m a week on the NHS. But they might be for falsely claiming that this money was available. Similarly the Leave campaigners could not be liable for promising to cut immigration. But they might well be for claiming that Turkey's accession to the EU was imminent. In both cases, what the courts would have to test was whether these campaign claims could reasonably be held central to the Leave campaign. And as I say, that would be a matter for the courts to decide; though in one case at least it does not seem a hard decision, given that the false claim in question was written in very large letters on the side of the bus.
I close by considering five objections to the proposal.
1 “Caveat emptor. It’s up to the public to inform themselves and to detect lies.”
Up to a point, yes it is. But the power of a plea of caveat emptor is strictly limited in its home area, the law of contract. And there is no more than an analogy-relationship between a legally proper contract and the kind of implicit agreement that there may be in a relationship between politicians and voters. So the power of a plea of caveat emptor is limited here too. There are practical limits to what people can be expected to find out, and there is a real asymmetry of power between the national press and any individual’s epistemic abilities.
2 “But this law would lead to frivolous and vexatious litigation after any and every election result by any and every party.”
A standard solution to this kind of problem already exists; it is to require litigants to pay a sum into court that they lose unless they win. What level this sum might be set at in order to act as a sufficient deterrent seems to me an empirical question; it depends on how many frivolous or vexatious actions are in fact brought, and hence how much of a deterrent we in fact turn out to require.
Two further provisions are obviously possible; one or the other of them might also be advisable—I do not settle this question here. One is to make it clear to judges that they have wide discretion to dismiss immediately cases brought under this law if they think they are frivolous or vexatious. A second is to impose a cut-off in voting levels, so that no remedy under this law can be sought if the winning side in an election has more than X per cent of the vote on a turnout of Y percent. Unless X and Y are both set high, this provision would face telling criticism on the ground that truth is not settled by majority; and of course this includes not being settled even by a 99.9% majority. This criticism should perhaps be balanced against considerations of the negative public effects of denying manifestations of the popular will, even in circumstances where it can be argued that deception has occurred.
3 “But this law will drag the courts into politics, and oblige judges to rule on highly controverted questions.”
The courts will be perfectly at liberty to dismiss a case brought under this law on the grounds that assessment of the claim it says is false is too political or too controverted for their liking. But in any case judges cannot, and should not seek to, avoid all involvement in political matters, still less in highly controverted questions. It is a judge’s job to judge. Moreover the proposed legislation is careful to distinguish between (1) campaign promises and (2) campaign claims. Unless we accept my “second thoughts” above, the proposed law does not apply to anything that is not a provable matter of already-existing fact, as promises are not. Nor does it apply (3) to matters of opinion: if the claim said by the plaintiff to be false is the claim that such-and-such political matter is a good thing or a bad thing, that is, legally speaking, a question of opinion not of fact, and again the proposed law does not apply to it.
4 “But in any election both sides always tell lies.”
The first thing to say about this objection is that it is unduly cynical. It is easy to say glibly that politicians lie all the time; it is harder to produce actual examples of lies that are central to political campaigns. This, I suggest, is one reason why the case of Brexit is so unusual: it is not at all the norm in British politics for so many plain untruths to be so recklessly offered, at the heart of a political campaign, as (according to me above) were offered by Leave campaigners.
Secondly, consider the game-theory of the situation. Under the proposed law the election campaigner will reason that s/he has more to lose by lying, in proportion as s/he thinks it likely that s/he will win. For the law has no scope against the losers of elections; it provides only that the election result be struck down if it was won by lies, and this penalises only the winner of the election. It is then no matter for this law if election losers lie—apart from a proviso about stalking horses that I come to in a moment.
It follows that this law might be thought unable to cover two kinds of possible situation. One is the situation of defection, where two or more candidates (say A, B, C) are against each other in a tight campaign. A or A’s agents produce(s) a false campaign claim; B then reasons that, since it is in any case unclear who the winner will be, B might as well take the same risk as A, and produces a false campaign claim of B’s own; C then reasons that, since A and B are now getting electoral advantage from untruths in a contest without a clearly predictable winner, C’s campaign too should throw aside restraint and produce false campaigns claims too. Hence, it might be said, the law itself produces a kind of cartel of dishonesty. But the answer to this point is simply to be steadfast in the application of the law. Suppose the candidates finish the election in the vote-tally order A, B, C, and B brings a successful suit under this law against A. Then A’s victory is struck down and B becomes the victor—until, as may happen, C brings a parallel suit against B. If some fourth party then brings a suit against C, all three candidates are disqualified by dishonesty, and the whole election must be rerun. But none of this is a good reason for thinking the law proposed unworkable.
The other possible situation is that of the stalking horse, where A and B are candidates with a serious chance of victory, and A induces C to stand also—with no serious chance of victory—and to make false campaign claims against B. So then A wins by way of false campaign claims—but not A’s own false campaign claims, so that—it could be said—A cannot be accused of making any. But in fact A can be so accused, by anyone who can show that A was using C as a stalking horse. For to show this is to show that C’s false claims against B were part of A’s campaign claims. Insofar as C acted on A’s behalf and at A’s inducement, C acted as A’s agent, and so was as much a part of A’s campaign as any other agent of A.
And what are the limits on someone’s counting as someone else’s agent in a political campaign? Clearly the point needs careful handling. It should not be held that anyone whatever who says anything at all that is to the detriment of A’s political campaign is ipso facto acting as the agent of A’s election rivals. But it does, for example, seem likely that many British newspapers will often reasonably be thought to be agents in this sense: given the longstanding and well-known political alignments that in many cases they stand for, it may well often be reasonable to hold them accountable under the proposed law if they intentionally propagate provably false factual claims to A’s advantage or B’s disadvantage. But this question too, I suggest, is a matter for the courts to adjudicate. There will be some boundary-cases here; but to admit that is not to admit that every case will be a boundary-case.
5. “But this amounts to a constraint on the freedom of the press! You are saying that the press will lose their right to tell political lies!”
To this I am tempted to retort “Yes, and a good thing too”. But actually I am not proposing that the press lose that legal right. (Legal right: there is of course no general moral right to tell lies.) I am proposing that the legal right to tell political lies should remain, but be priced by the attached risk that such lies backfire by leading to the voiding of the results that they were intended to produce. That seems to me a moderate and mild response to what is, in fact, one of the deepest and most pervasive problems facing British deliberative democracy: the poisonous and irresponsible nature of so much of our journalism.
Originally written in July 2016
Thanks for discussion to Alan Carter, Helen de Cruz, Michael Morris, Sheila Lockhart, Kevin O’Regan, Simon Pulleyn, Simon Rippon, David Robjant, Ben Saunders, Sylvia Terbeck, and Bill Wringe.