A high-profile barrister backed plans to make it a criminal offence for Senedd members and candidates to deliberately deceive the public.
Sam Fowles, of Cornerstone Barristers, gave evidence on former Plaid Cymru leader Adam Price’s proposals to disqualify politicians from the Senedd for deliberate lying.
The lawyer was involved in the Miller case against the then-Prime Minister over the propagation of the UK parliament and appeals that exposed the Horizon Post Office scandal.
Mick Antoniw, the Welsh Government’s counsel general or chief legal adviser, last week raised concerns the deception proposals are “unworkable”.
But Dr Fowles told members of the Senedd’s standards committee: “I would be very, very confident if I was asked to defend this in a judicial review.”
‘Damaging’
He described the proposals, which are set out in clause 64 of the elections and elected bodies bill, as clearly drafted and drawing on long-established legal principles.
Vikki Howells, who chairs the committee, raised concerns about the practical ramifications of criminalisation, suggesting it may be best left to the “robust” standards process.
Dr Fowles said deliberate deception fundamentally undermines confidence in democracy, pointing out that ministers and candidates sit outside of the Senedd’s regime.
Stressing the importance of independence, the barrister warned: “As is recognised in law, the appearance of a lack of objectivity is as damaging as a lack of objectivity itself.”
He said the matter is best decided by the courts, rather than by politicians appearing to sit in judgement on themselves, because it is more likely to give the public confidence.
‘Invidious’
Jennifer Nadel, co-director of Compassion in Politics, a cross-party think tank, warned faith in democracy and the political class is at an all-time low.
“This has overwhelming public support,” she said, highlighting an Opinium poll which found 72% in favour of similar measures on deception with only 7% opposed.
The journalist contrasted the example of a car salesperson knowingly selling a deathtrap, saying they have to face the consequences unlike politicians who mislead.
She described deliberate deception as fraud on the electorate that pollutes the public space and threatens to undermine the very nature of democracy.
Ms Nadel pointed out that Labour’s commitment to a Hillsborough law would introduce a duty of candour on civil servants that could be enforced through criminal courts.
She said it would be invidious for officials to face a higher duty than their political masters.
‘Safety valve’
Asked by Peredur Owen Griffiths about the interplay with other legislation, Dr Fowles said a review found the proposals would not clash with defamation or human rights law.
He said an offence of deception would not create friction with Article 10 of the European Convention on Human Rights on freedom of expression.
He told the Plaid Cymru politician: “This seems to me a quintessential example of something that is a proportionate means of achieving a legitimate aim.”
Dr Fowles said defences listed in clause 64, such as for statements that can be reasonably inferred to be a matter of opinion or analysis, insert a safety valve for accused politicians.
The witnesses raised Singapore, Austria and Western Australia as examples of international best practice, firing a warning shot to extreme leaders who make false statements.
‘Malicious’
The Conservatives’ Natasha Asghar raised the risk of an avalanche of malicious complaints against politicians and would-be members of the Senedd.
Dr Fowles accepted malicious complaints are inevitable in any criminal or civil law but he expected vexatious and frivolous grievances to be “booted out very quickly”.
He said it is easy to infer motivation for malicious complaints and people will be reluctant due to the risks of prosecution for wasting police time or perverting the course of justice.
Ms Nadel agreed, saying the police and CPS will ensure the law cannot be abused by filtering out frivolous complaints and bringing cases in the public interest.
She said while a new hate crime law in Scotland led to 7,000 reports in its first week, which stuck in the public consciousness, but the number of reports has plummeted since.
‘Combat’
Labour’s Mark Drakeford questioned the effectiveness of clause 64 in dealing with hard-to-distinguish cases “where fact and opinion collide”.
The former first minister suggested deliberate deception should be dealt with under a recall process which would allow the public to remove Senedd members between elections.
Dr Fowles described the courts as the ultimate fact-finding forum, saying: “I think it’s proper to take these questions outside the realms of political combat.”
He told the committee political deception is akin to political bribery as he warned that public trust in politicians has fallen further since the introduction of Westminster’s recall system.
Highlighting an Ipsos poll, headlined “British public wrong about nearly everything”, the legal expert said: “A big part of that is because they have been misinformed.”
‘Dangerous’
Ms Nadel opposed dealing with deception by recall, saying it could become a popularity contest with voters unwilling to sanction a demagogue despite dishonest statements.
She said: “It’s part of declaring the rules of the game rather than something that people can really decide ‘well, it wasn’t such a bad case of fraud’.”
Ms Neadel, also a former barrister, said polls show one in five people do not believe a single word politicians say – with only 3% believing more than 80% of what they hear.
She warned: “Facts are facts and we are at a very dangerous moment in history.”
Dr Fowles said clause 64 would help ensure politicians tell the truth, concluding: “It’s only by giving the public that guarantee that we can start to restore trust in politics.”
A crunch vote will be held during a three-hour debate about the proposals on July 2.