Britain is a country where tweeting, preaching, or posting the wrong thing can get someone in trouble with the police. Under the circumstances, it shouldn’t be too much of a surprise that Boris Johnson, one of the most prominent of those who campaigned for the U.K. to leave the EU — and now a possible leader of the Conservative party — is facing prosecution for the official Leave campaign’s claim that the U.K. sent “the EU £350 million a week.” This was money, Vote Leave asserted, that could be used to help fund the perpetually needy National Health Service, a claim that was plastered along the side of its big red campaign bus.
It was also a claim that — like many others made by both sides in the course of the referendum campaign — was not quite as accurate as, shall we say, it might have been. Although it is true that Britain’s notional EU bill was then about £350 million a week (in fact a little more), that figure was quoted before taking account of the annual deduction that Mrs. Thatcher had first secured for the U.K. back in the 1980s and, for that matter, other payments channeled to Britain via Brussels. After adjusting for all that, Britain’s real weekly contribution was probably a little more than half the infamous £350 million.
The £350 million was a major point of contention during the campaign and has been a useful alibi for many Remainers ever since. Rather than face the uncomfortable truth that the Brexiteers’ victory was based on profound, serious, and overlapping discontents, Remainers have reassured themselves with the self-congratulatory conviction that Brexit was won by a mix of the disgusting (xenophobia, racism) and the deceitful (most notably that £350 million). That is an argument that carries with it the clear suggestion that the referendum result was somehow illegitimate, a suggestion that has done a great deal to power the subsequent effort to keep Britain in the EU.
But even that was not enough for Marcus Ball, a twentysomething history graduate who set up an appeal, #BrexitJustice, aimed at crowdfunding the private prosecution of various Leave politicians who were, in his view, guilty of this or guilty of that. With the nation bitterly divided in the aftermath of the referendum, quite a bit of money poured in. Enough has been raised to pay for the initiation of the private prosecution of the Brexiteer regarded, I suspect, by Mr. Ball as not only the most egregious offender but, courtesy of the hours that the eager plaintiff had spent watching videos of the referendum campaign, the most vulnerable — Mr. Johnson.
The route Mr. Ball took was to allege that by “lying” about the £350 million while serving as an MP (and, for some of the time, mayor of London), Mr. Johnson was guilty of “misconduct in public office.” This somewhat musty and ill-defined common-law offense — one that came with a maximum sentence of life imprisonment — had, wrote the Law Commission of England and Wales, fallen “largely into disuse” for most of the last two and a half centuries with “occasional high profile” exceptions.
In calling for Mr. Ball’s case to be dismissed, Mr. Johnson’s lawyers argued that this was not some “disinterested attempt to improve the standards of political debate” but a “desire on the part of individuals such as Mr. Ball to undermine the referendum result . . . and/or to prevent its consequences.” It was, they, contended, a “political stunt.”
It is hard to disagree with that or, indeed, with their assertion that permitting such a prosecution would take the law where it was not intended to go:
The misconduct offence depends upon proof of the serious abuse of the powers of the office (or a grave failure to exercise them at all). The nature of the alleged misconduct and the context of it are far from the scope of this offence. The essence of the offence is of abuse of the public office, not poor conduct by a public official. It follows that, even if there were evidence of conduct which reflects on the fitness of the office holder or even shows him to be unfit to hold the office, that is nothing to the point unless it amounts in itself to an abuse of the powers or duties of the office itself.
Over on BarristerBlogger, Matthew Scott, a barrister (attorney) specializing in criminal law, sets out an excellent introduction to Mr. Ball’s case and takes a similarly unappreciative view of its legal foundations:
It is of course not enough merely to show that a person lied while holding a public office. He must also have lied while “acting as” an office holder. If, for example, Mr. Johnson were to have lied to his wife about his whereabouts that would be a lie as an individual, not as an MP.
This requirement takes Mr. Ball into more difficult territory. Mr. Johnson was an MP while campaigning, but it was not his position as an MP or Mayor that enabled him to campaign. People who were not MPs were also campaigning during the referendum. Nor was he under any legal duty to campaign.
There is more where that comes from.
There is also the little matter that injecting criminal law into political debate ought to be contrary to the organizing principles of any self-respecting liberal democracy.
If the law was as Mr. Ball believes it to be, it would mean every MP’s speech, and every slogan in a political campaign, would potentially be a matter for the police to investigate; indeed, they might be accused of “misconduct in public office” if they failed to do so. It would have a chilling effect on debate: get a fact wrong and your opponent will demand your arrest, and even if the police refuse, you will run the risk that a single issue activist will bring a private prosecution. Fanatics for one cause or another would be delighted to use the criminal law, or the threat of it, to silence their political opponents. In the battle for crowd-funding, the justice of a particular case will matter less than its popularity, or perhaps more to the point the ability of the prosecutor to mobilize his or her supporters on social media.
When this private prosecution first came before a court, it should have been thrown out without further ado. It was not. Unfortunately, Margot Coleman, the district judge who considered the two sides’ first pleadings, decided that there was enough of a case for it to go forward. Perhaps it is unkind to mention that a district judge is, with the exception, well, of a deputy district judge, almost as low as it is possible to go in the English judicial system. Coleman has not ruled on the prosecution’s merits and has emphasized that the allegations remain “unproven.” Nevertheless, Mr. Johnson will have to turn up for a preliminary hearing, “and the case will then be sent to the Crown Court for trial.”
The expense of it all will be bad enough, the prospect of embarrassment — few campaign claims would look good under cross-examination — is real, and the timing, at least at first glance, is not the best: The proceedings may well hang over Mr. Johnson’s bid for the Tory leadership. Then again, if he can successfully portray himself as the victim of a vindictive Remainer trying to subvert the will of the majority who voted for Brexit, a temporary martyrdom (he is unlikely to lose the case) might help his cause.
However this case turns out, that it has gone as far as it has is a disgrace. Its progress ought to alarm any Brits worried about the future of free speech in a country that already has too little of it, and, if proposed regulations requiring social-media companies to remove material that is “harmful,” but not necessarily illegal, come into effect, will soon have even less.
This broader assault on free expression in Britain, as elsewhere in purportedly liberal democracies, is increasingly made in the name of protecting a supposedly vulnerable citizenry from the threat of “fake news,” an argument that often disregards the fact that what is “fake” can, not infrequently, be the subject of reasonable debate.
Moreover, in looking at the allegations against Mr. Johnson, his attorneys pointed out that
the misconduct alleged concerns Mr. Johnson’s adoption and repetition of the Vote Leave campaign message concerning the £350m per week. No allegation is made, nor could any be made, that Mr. Johnson adopted or commended that figure for any purpose other than in the course of a contested political campaign. The claim was based upon information that was, at all times, freely available to all. As with very many claims made in political campaigns, it was challenged, contradicted and criticized, and many examples of this process are furnished in the material supplied by [Mr. Ball].
Put another way, voters had access to enough information to come to their own conclusions as to whether the £350 million was or was not a fair number. After all:
[The Vote Leave campaign] made no claim to special knowledge of the sums expended by the UK, they exercised no official powers in promoting that message and the provision of figures about UK spending formed no part of Mr. Johnson’s official duties.
The subtext of Mr. Ball’s case is that voters are too stupid to weigh such matters for themselves, and that the state must step in to protect them from their ignorance and inadequacy. It is an argument that, no less than when it is deployed in the current war against “fake news,” is both insulting and sinister: It assumes that voters should be prepared to extend a childlike trust in the state’s ability to act as an independent judge in matters such as these, a trust that most governments have done little to earn. Fake news can be a menace, but the defenses now being put up against it can be more dangerous still. Some 2,000 years ago, Juvenal asked, “Quis custodiet ipsos custodes?” The question is as pertinent now as it was then.
It should be remembered that the right of free speech is disintegrating in a Britain where the Conservatives have been in government since 2010, either in their own right or in partnerships where they have played the lead role. The Tories’ botching of Brexit is likely (despite its setback in recent elections to the EU Parliament) to leave a hard-left Labour party dominating the U.K.’s next government. When it comes to clamping down on speech, the Conservatives, with that thoughtlessness that they have made their own, are strengthening the machinery that a triumphant Labour will be able to use — and will certainly abuse. Mr. Ball has merely shown the censors-in-waiting that there is yet another tool to reinforce the silencing to come.