Oldham, 2010: In a closely fought election, where immigration was a central issue, the Labour candidate Phil Woolas published statements about his LibDem opponent that were found to be false statements of fact in relation to his personal character or conduct without believing them to be true, contrary to s.106 Representation of the People Act 1983. Woolas was compelled to leave his seat and a bye-election was called (Watkins v Woolas  EWHC 2702).
UK, 2016: In a closely fought referendum vote, where immigration was a central issue, there are allegations that the successful Vote Leave campaign had knowingly published false statements.
This post will examine whether publishing false statements in a referendum campaign should be an electoral offence. There are many examples of false statements being treated as a serious social harm that needs to be regulated by law, including misrepresentation in contract law; the tort of defamation; criminal offences of fraud and misrepresentation; corporate and finance rules on directors’ duties and audit; and the regulation of broadcasting and advertising.
Examples within the field of public law are less obvious. Administrative law allows for judicial review when there has been a breach of a legitimate expectation. Within constitutional rules, though not law, one of the few hard edges to the Ministerial Code and the convention of Individual Ministerial Responsibility is that a Minister who knowingly misleads the House must resign. Nevertheless, the public interest in preventing false statements is recognised in law, in electoral law and in the constitutional responsibilities of politicians.
The referendum vote
The European Referendum Act 2015, in s.4, made provision to incorporate existing aspects of electoral law into the referendum process and a number of provisions of the Representation of the People Act 1983 were so applied by the European Union Referendum (Conduct) Regulations 2016, SI 2016/219 (para. 79 and Schedule 1). These include a range of provisions to ensure the integrity and fairness of the campaigning and voting process, including the accuracy of registers, duties of registration officers and some electoral offences, but not the false statement offence from s.106 RPA 1983. It would have been impossible to simply transfer in the offence. In a referendum, voters are not choosing between a number of candidates but between (normally two) answers to a question. There was no attempt to introduce a false statement offence tailored to the different circumstances of a referendum vote.
So making a false statement in support of one of the alternative answers to a referendum question is not an electoral offence; but ought it to be? The arguments against introducing such an offence are considerable;
Arguments against a false statements electoral offence
Freedom of speech – as the ECrtHR said in Bowman v UK (1998) 26 EHRR 1 ‘Free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system’. Restricting political speech particularly within a campaign can have a chilling effect on democratic discourse (as Woolas had unsuccessfully argued). The freedom is wide (covering ideas that offend shock or disturb) but is not absolute and there is no ECrtHR judgment saying that false statements are protected. There may be a marketplace of ideas, but we do not generally allow false statements in other marketplaces.
Political constitutionalism v. legal constitutionalism – the UK constitutional system relies on both, but traditionally places an emphasis on political rather than legal controls over constitutional actors. The argument here is that any attempt to affect the outcome of the vote by making false statements could be exposed by the opposition (or the media) before the vote – it could be de-bunked and the falsehood used against the persons purveying it. If the falsehood is only discovered after the vote, then voters who feel they have been sold a false prospectus can punish the party who sold it in the next election. This relies though on a) periodic elections, which is not the case in a referendum, b) a chance to reverse the policy that the false statement related to, which is often not feasible with referendum questions, and c) an identifiable party or body of persons who have taken power and who can be held to account for the falsehood, which is not straightforward in a cross-party and multi-party campaign that includes people who will remain outside of executive power even after a successful result.
Judicialisation of politics and politicisation of the judicial function – it would bring judges into the heart of the political battle and undermine the political neutrality and structural independence of the judiciary in the eyes of the public (and politicians). Judges, though, already do adjudicate on highly sensitive political issues, and are accustomed to handling false statement laws in other contexts.
Collateral litigation – there is a general policy aversion to collateral litigation, and referendums are often designed to bring closure to a long-standing controversy. There is a need to avoid endless re-runs of referendums, though this would not occur if the official campaign groups avoided significant false statements.
Delimiting the offence – perhaps the greatest practical challenges would come from trying to separate false statements from the usual hyperbole, ambitious promises, and extreme best-case (or worse-case) scenarios used in political campaigning. The nature of mass communication means that often complex policy positions need to be simplified in slogans that have traction with the public. Politicians are often not well versed in the niceties of the policy areas they are called to comment on and they do make basic factual errors. Added to this many ‘political facts’ are highly contestable and highly contested.
Benefits of a false statements electoral offence
Democracy – The law recognises a strong public interest in protecting people from false statements, including in elections and votes. Democracy is undermined if a campaign can benefit from making false statements, particularly in underscoring voter disillusionment and ultimately rejection of democratic routes to change. It can promote a general cynicism about politics and politicians not limited to those purveying false statements, and a drift to a post-rational public discourse.
Weakness of political sanctions – which are particularly ill-suited to prevent false statements in referendums because a) the ‘prize’ is so big, b) it is harder to make the people making false statements politically responsible than in general and local elections.
Weakness of the media role – on the one hand impartiality rules for the broadcast media can result in a mealy-mouthed neutrality giving the same prominence to a false as to a true statement. Conversely, a print media which is allowed to be partial may act to promote rather than call out the false statement. Social media often acts as an echo chamber rather than an open field for finding truth through debate.
The importance of the outcome – ultimately the stakes in referendums are so high, that it is perverse that those selling washing powder are held to a higher standard of truthfulness than those selling choices on the most fundamental aspects of the state we live in. This is confirmed by the exemption from the Advertising Code for ‘claims in marketing communications … whose principal function is to influence voters in a … referendum’ (Rule 7.1).
What would an offence look like?
Section 106 RPA 1983 could be a starting point and any referendum offence would need to be narrow. It should be limited to a) official communications from official campaign groups, b) factually false statements (excluding statements of opinion and policy preferences), and c) significant statements, i.e. those directed to having a clear impact on how voters will exercise their preferences. There should be a defence of reasonable cause to believe that the statement was true, so that only those who knowingly act falsely or who are highly reckless as to the truth of their statements are caught by the offence. Even though this would be a civil offence the criminal standard of proof could apply (as it does under s.106 which is linked to criminal liability). Any petition to set aside a referendum result would need to be heard by a senior court with further appeal routes, whilst as per the approach in Watkins v Woolas the court could look at whether it was necessary and proportionate to declare the vote void in the context of the breaches.
It beyond the scope of this brief post to fully assess whether an offence of the sort discussed here would have been breached in the conduct of the referendum campaigns, or whether the existence of such an offence would have affected the statements made in the campaigns.
Deep public anger about some statements should be acknowledged though, in particular the NHS funding statement from the Vote Leave campaign. This was a central statement of the campaign and appeared on the first official campaign poster as ‘Let’s give our NHS the £350m the EU takes every week’, and on the side of the Vote Leave campaign bus as ‘We send the EU £50 million a day let’s fund our NHS instead’. Amongst a range of difficulties with the veracity of this statement, the figure does not take into account the substantial rebate that is never sent to the EU.
Adam Wagner considers that this is not ‘a complete lie’ but rather a ‘huge exaggeration’. Conversely, the Conservative MP, Dr Sarah Woolaston stepped down from the Leave campaign after having her concerns about the truth of the statement dismissed by senior Vote Leave figures; she said the figure was ‘fundamentally untrue and that I believe they knew it to be untrue’. In an official response to a query from Norman Lamb MP, Sir Andrew Dillnott, Chair of the UK Statistics Authority said ‘I consider these statements to be potentially misleading’. The approach to election statements in Watkins v Woolas was ‘what would the words mean to an ordinary and reasonable reader’.
s.106 RPA 1983 is directed at protecting the right of the electorate to express its choice on the basis of facts not false assertions. It is limited to statements as to the personal character or conduct of the candidates, so an extension of a false statements offence to cover wider statements of fact on policy issues would be highly controversial. Nevertheless there ought to be debate on whether the absence of prohibitions on false statements in campaigns to attract votes on effectively irreversible major constitutional changes is conducive to the promotion of democracy.
Michael Doherty, Principal Lecturer, Lancashire Law School, UCLan
(Suggested citation: M. Doherty, ‘Should Making False Statements in a Referendum Campaign Be an Electoral Offence?’, U.K. Const. L. Blog (4th Jul 2016) (available at https://ukconstitutionallaw.org/))