Lying politicians in the Senedd may finally be held to account – but why should we stop at Wales?

‘I helped prove in court that the then prime minister, Boris Johnson, misled the Queen.’ Photograph: Kirsty Wigglesworth/AP

In 2019, I helped prove in court that the then prime minister misled the Queen. Boris Johnson claimed he prorogued parliament for purely administrative reasons. The circumstances, the court concluded, demonstrated that “the true reason for the prorogation is to reduce the time available for parliamentary scrutiny of Brexit at a time when such scrutiny would appear to be a matter of considerable importance”.

Johnson ultimately faced the supreme court over his decision – but many other politicians mislead the public, and parliament, with impunity. According to the factchecking campaign Full Fact, Rishi Sunak has, by my understanding, made 41 false or misleading public statements since becoming prime minister. Keir Starmer made seven in the same period. Jeremy Hunt and Suella Braverman made five each.

Lying is an increasingly common political tactic. In a three-day period during the 2019 general election, 88% of the Conservative party’s most-shared online adverts contained misinformation (6.7% of Labour’s). Susan Hall, in her recent campaign for London mayor, shared a photograph that turned out to have been photoshopped. It’s little surprise that public trust in politicians is lower than at any point since records began in 1983. Only 9% of British people believe MPs are honest.

Truth is essential to a functioning democracy. Without it, we can’t hold power to account. If, for example, the government can convince voters that the national debt is falling (as Sunak has falsely claimed), it can’t be held accountable for the fact it’s actually rising.

Yet our political system doesn’t disincentivise lying. The supposed “rule” against misleading parliament is subject to the (unaccountable) discretion of the speaker of the House of Commons. This was laid bare in a parliamentary case I argued last year. The culture, media and sport select committee suggested that Nadine Dorries may have misled parliament over the privatisation of Channel 4. The speaker did not allow MPs to debate the matter. When the SNP MP John Nicolson informed the public, he was referred to the parliamentary privileges committee for potential sanction. I defended John and he was acquitted. Yet he came far closer to suffering punishment than Dorries herself. Even if the speaker allows MPs to debate, the decision is ultimately determined by how much political support the accused can command, rather than whether they have told the truth.

Two years ago, in the Guardian, I proposed a “truth law”. Now the Senedd, the Welsh parliament, is considering a similar plan. Proposed by Adam Price, and supported by Plaid Cymru, the Conservatives and the Liberal Democrats, the proposal will criminalise Senedd members and candidates who make false statements. This may seem draconian, but those holding public office are in a unique position of public trust and power. When a politician lies, it can have long-term and nationwide impacts. It’s right that they are held to a higher standard than other people.

Yet the proposal has been attacked by sections of the press. Critics say that it will be too difficult to decide what counts as a “lie”; that it interferes with “parliamentary sovereignty”; and that it will put politicians at the mercy of judges “who include their pronouns in their bios”.

The courts’ core business is distinguishing facts from lies. As we showed in the prorogation case, they are perfectly capable of spotting when a politician is lying. Similarly, courts are well practised in distinguishing statements of “fact” from statements of “opinion” (such as in defamation cases). Politicians who don’t like the idea of being held to account when they break the law have long complained about the “politicisation” of the courts. Two successive government inquiries, however, failed to find evidence to support these claims.

As for “parliamentary sovereignty”: the Senedd doesn’t have it. Its members have some “parliamentary privileges”, but this doesn’t include immunity from prosecution. Should the measure be rolled out for Westminster, it would conflict with article nine of the Bill of Rights 1688 (which prohibits the courts from considering “proceedings in parliament”). That statute was, however, intended to protect MPs from courts controlled by the Stuart kings and used to persecute their political opponents. After 336 years, it’s safe to say the danger has abated. It’s time the law addressed the threats of the 21st century, rather than those of the 17th.

The proposal will bring politicians more into line with other professions (including barristers), who can be punished for lying in a professional capacity. While barristers don’t face criminal sanction, we can be struck off, losing our entire careers. This is arguably more serious than the fine and limited ban proposed for lying politicians.

The Senedd plan strikes a balance between free speech and the imperative of truth-telling. It targets statements that “wilfully” mislead, so only the most egregious lying will be criminalised. “Debatable” statements, such as Hunt’s claim to have cut taxes (technically correct, but the overall tax burden has increased), will be allowed to stand. Outright lies, like Sunak’s claim that Just Stop Oil “bankrolls” the Labour party, may face sanction. Politicians who subsequently correct the record won’t be convicted. In other words, only those who are caught lying but “double down”, rather than doing the decent thing, are at risk.

Facing what Caroline Lucas has described as a “dishonesty epidemic”, the public will not trust politicians again until we know there is a genuine disincentive for lying. Price’s proposal shouldn’t just be passed by the Senedd. It should be rolled out across the UK.

Sam Fowles is a barrister, author and broadcaster