Could we force politicians to tell the truth?

Politics is pre-truth not post-truth. Does the regulation of advertising provide some answers?

David Mountain
13 January 2019

People’s Vote March in London, June 23 2018. Credit: Wikimedia/Ilovetheeu. CC BY-SA 4.0.

It’s a truism that politicians lie.  Even politicians themselves half-acknowledge this fact: they are, in their own words, ‘terminologically inexact’ or ‘economical with the truth.’ When asked whether lying is widespread in politics, former deputy leader of the Liberal Democrats Malcolm Bruce answered: ‘No. Well, yes,’ which pretty much sums it up.

As a result, there’s a deep-seated and growing sense of apathy when it comes to politics. When 2016 was declared the dawn of post-truth, no one batted an eyelid. So pervasive is this sense of resignation that a 2014 petition to make lying in the House of Commons an offence was widely regarded as a joke, even by the petition’s founder.

This fatalism is understandable but dangerously self-defeating. It convinces us that our elected representatives will always spout falsehoods whether we like it or not. It encourages us not to act, which is a curious attitude given that all of us would like our politicians to be more truthful. So what to do? I’d suggest we look at how advertisers have been forced to tell the truth through a series of laws, rules and regulations, and then apply those lessons to politics.

Anyone wishing to sell their wares in the 21st century is constricted by a wide range of laws and regulations. In many countries advertisers are legally required to carry out their work honestly and truthfully, and to provide accurate descriptions of their products and services. In the UK it’s a crime to mislead the public, whether by providing them with false or incomplete information or by making inaccurate comparisons with competitors.

But it wasn’t always like this. At the turn of the 20th century advertising was an unregulated Wild West, where the only limit to an advertiser’s fantastical claims was their imagination. For example, the makers of the drug Thorazine claimed it could ‘control the agitated, belligerent senile.’ In the USA, quack medic Lydia Pinkham’s suspiciously vague ‘Herb Medicine’ promised to alleviate ‘all womanly ailments.’ Fellow phony Dr William Koch declared that his miracle drug glyoxylide could cure ‘all human ills’ (it turned out to be nothing more than distilled water). At least Koch’s homeopathic panacea was harmless; many miracle cures – even those marketed for children – were laced with alcohol, opiates, narcotics and hallucinogens and could be highly dangerous and addictive.

It was the health risks of these snake oil cures that finally spurred governments to outlaw false advertising. Until the early 20th century advertisers could only be punished under broad, non-specific laws, such as those against indecency and sedition. But with the arrival of statutes such as the USA’s 1946 Lanham Act (which allowed members of the public to file lawsuits against misleading advertisers), and governing bodies such as the UK’s Advertising Standards Authority (ASA), advertisers found it much harder to make unsubstantiated claims - though it’s not for lack of trying. In 2017 the ASA forced nearly 4,500 adverts to be changed or removed. Listerine used to claim that its mouthwash could cure the common cold until it was banned from making that claim in the 1970s; in 2008 Maltesers and Jaffa Cakes were forced to stop implying that their snacks were low in calories or fat; and  as recently as 2011, Nivea was still trying to convince us that their skin cream made us thinner until they were ordered to stop.

Advertising regulation ought to be credited as one of the 20th century’s unsung success stories. Thanks to the application of a number of common-sense laws, advertisers are now forced to tell the truth, with the result that the general public is safer and much more informed. This stands in stark contrast to politics, where it’s still perfectly legal for a politician to lie to the public. True, there are some scattered pieces of legislation which touch on this topic. The Parliamentary Witnesses Oaths Act of 1871 makes it possible for politicians to be found guilty of perjury if they lie under Parliamentary oath. The 1983 Representation of the People Act allows politicians to be punished for making false statements about a political candidate. It’s also true that election campaigns are subject to fairly tight scrutiny thanks to the Electoral Commission and associated election courts.

Nevertheless, outside of elections and parliamentary oaths, politicians are pretty much free to bend the truth as they please. The MP’s Code of Conduct contains just a single sentence under the heading of ‘honesty,’ and that refers to the declaration of conflicts of interest. The House of Lords Code of Conduct has only seven words: ‘Holders of public office should be truthful.’ What’s more, on the rare occasions an MP is found to be in breach of these codes, the consequences are so half-hearted that they can hardly be classed as punishments. Misbehaving politicians can be asked ‘to apologise to the House’ (not the public) or suspended from parliament for a short time, although they may still be paid their full salary while suspended.

Clearly, current checks on politicians’ behaviour leave a lot to be desired. It’s not surprising that Westminster is swimming in falsehoods when the rules governing honest conduct are so weak and patchy. So why not apply the tried and tested methods of advertising regulation to the world of politics?

After all, there are a number of important similarities between advertisers and politicians. Both are trying to sell something, whether it’s a product, a policy or a political party. And both are willing to play fast and loose with the truth in order to do so. But whereas advertisers have been forced to reign in these dangerous antics, politicians have been left virtually untouched. British politics isn’t post-truth, it’s pre-truth: we’re yet to establish any firm rules for honest political conduct, and politicians are free to peddle quack cures and phony panaceas for our political ailments regardless of the damage they may cause. They can slap a lie on the side of a bus and then recant it without any consequences, or pack their election campaigns full of promises and fail to deliver without breaking any rules.

The existing rules governing political behaviour in the UK are designed with the self-serving aim of protecting parliament from a bad press – or, as the MP’s Code of Conduct puts it, ‘any action which would cause significant damage to the reputation and integrity of the House of Commons.’ None are geared towards protecting the public from political deception. Imagine, then, if politicians found themselves as restricted as advertisers in their pronouncements. A raft of honesty laws could make it illegal for them to willingly mislead or deceive the public, to omit important information from their speeches, or to make false comparisons with rivals. There could be an independent Political Standards Authority, with which any member of the public could lodge a complaint. Punishments for those found guilty of lying could range from fines to firing.

There could even be the equivalent of corrective advertising, where companies are forced to spend their own money correcting their previous misinformation. Alternatively, a political version of the USA’s Lanham Act would allow anyone who voted for a politician or party on the basis of a claim that was later revealed to be false to bring a lawsuit against the dishonest party. Might politicians think twice before making election pledges if they knew that their actions could land them in court?

We already have evidence to indicate that such measures might actually work. A study by political scientists at the University of Exeter found that politicians were ‘less likely to make inaccurate statements’ if they thought that their utterances were likely to be fact-checked. Further research from the USA suggests that politicians were more faithful to their constituents’ wishes when more media attention was focused on them.

One might argue that any attempt to make lying illegal is impractical As Malcolm Bruce put it, “If you are suggesting every MP who has never quite told the truth [should be sacked], we would clear out the House of Commons very fast.” So much the better you might say: the by-elections triggered by a mass clear-out might feature candidates who knew full well the consequences of dishonest conduct. But what about parliamentary privilege? Parliament has previously suggested that any laws governing MPs’ conduct could violate their right ‘to speak frankly of opinions which will not be subject to the civil courts’ and their ‘need to be able to speak freely, uninhibited by possible defamation claims.’ Parliamentary privilege has an importance place in British democracy, but it isn’t a valid argument against honesty laws. The right to speak freely and frankly is not the right to lie.

However, it’s true that politicians have to deal with sensitive information; doesn’t this require them to be a little economical with the truth at times? I don’t think so; discretion, even secrecy, is permissible when it comes to sensitive political information, but the honesty laws I’m proposing would only apply to information that politicians themselves offer to the public voluntarily - in election pledges, speeches, campaign materials and so forth. There’s no way they could be used to force officials to spill national secrets, just as advertising laws can’t force Coca Cola to reveal its secret formula.

Then there’s the issue of free speech: would a law prohibiting MPs from lying be an infringement of their basic rights? Hardly - it’s akin to saying that advertising regulations violate the free speech of advertisers. In their private lives politicians would be entitled to lie as much as they want. The philosopher Karl Popper considered this issue and argued that imposing limitations on the behaviour of politicians actually serves to ‘protect freedom rather than endanger it.’ Popper drew an analogy with a court of law, where restrictions on behaviour make it easier to get at the truth. A free-for-all, in which plaintiffs and defendants are free to do and say whatever they like, would make it impossible to work out who is being dishonest.

I don’t pretend it will be easy to get politicians to start censuring their own behaviour, something which they are notoriously reticent to do. A 1967 Select Committee on Parliamentary Privilege states that ‘the House should exercise its penal jurisdiction…as sparingly as possible.’ Nevertheless, politicians – as they love to remind us – are here to carry out the wishes of the people. So if the dishonesty of politics bothers us as much as we say it does, then we should direct that displeasure at politicians themselves. If the complaints are loud enough, and if enough people join in, any politician who wishes to stay in power will have to listen and act. It’s happened before, with politicians rejecting pay rises and imposing term limits on themselves. It could happen again if politicians are ready to face the truth.

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