Let me make a confession: I deplore Boris Johnson. He has built his career on dishonesty, egotism and irresponsibility. He has treated British politics like a night out with the Bullingdon Club, trashing the norms of political responsibility in the confidence that someone else will pay for the damage. Having run educational events during the 2016 EU referendum, I saw at close quarters the torrent of fantasy and misinformation that poured into the public arena. So it was hard not to raise a smile at the news that he faced prosecution for his statements during the referendum campaign.
But it is possible to believe two different things at once: that Boris Johnson is a stain on British politics, and that this is not a matter for the judicial system.
The appeal of these prosecutions is obvious. In most professions, people who lie or knowingly cause harm would be “struck off” by the “regulator”. A surgeon who wilfully misdiagnosed a patient, or an accountant who encouraged her clients to make bad investments, could be disbarred for “professional misconduct”. Why should MPs be treated differently?
The answer is that politics, unlike other “professions”, is ultimately regulated by the electorate. The “authority to practice” comes from the voters; and there are risks in erecting a higher authority to adjudicate on political speech.
Does this mean politicians are above the law? No. Rules about political campaigning should be rigorously enforced: candidates who fake ballot papers, bribe voters, take illegal donations or bug their opponents’ headquarters should expect to spend time behind bars. But the prosecution of Johnson attempts to stretch the law into new territory: to the policing, not of actions, but of political argument. And in a democracy, the power to adjudicate between arguments must rest with the electorate.
It is true that a referendum, like that of 2016, poses special problems for political accountability. In normal circumstances, a politician who lies to the electorate can be held to account by parliament and by the voters at the next general election. A one-off referendum, whose verdict must apparently never be questioned or challenged, disrupts that crucial safeguard. That’s another argument against the kind of referendum we held in 2016: where irresponsible actors, who did not have to deliver on their promises, could win a mandate for an abstraction that other people would have to turn into reality. But the courts are not the solution.
The hard question that we should be asking is why the lies struck home. In an age where fact-checking is so easy, and where so many good news sources are readily available, how did fantastical claims about £350m for the NHS or the false assertion that “Turkey is joining the EU” gain such traction? That raises questions for the media, for the Remain campaign and for everyone who believes in democracy.
Democracy can be intensely frustrating. It does not ask voters which newspapers they read, or check their qualifications before giving them a ballot. It gives them an equal say, even if they think the “EU army” is camped on Salisbury Plain or get their news from Breitbart, Skwawkbox or Alex Jones. But if we believe in democracy, then we have to believe in its capacity to distinguish truth from error: not in a perfect world, in which the media is fair and impartial, or in which everyone is highly educated, but in the one that actually exists.
There is a widespread feeling, which I share, that our democracy is malfunctioning: that old and new media are corrupting debate, and that the chain of political accountability has been stretched dangerously thin. But the solution to that is to renew our democracy, not to expect the courts to compensate for our failings. If we go down that path, the effect will be to drag the courts into political controversy and turbo-charge campaigns by the populist right to nobble them.
Johnson is hardly the first to prosper at an election on the back of dubious political claims. Should we prosecute Nick Clegg for his promises on tuition fees? Or Penny Mordaunt for denying that the UK could veto Turkish accession to the EU? Or any party that has talked of “24 hours to save the NHS”, or plucked a number out of the air and called it their opponents’ “tax bombshell”?
Lying matters: indeed, in a democracy, it is almost the ultimate sin. But the court in which Johnson should be found guilty is the court of public opinion. The sentence should be that he is voted out of his seat, becoming so politically toxic that no party ever entrusts him with office again. Those of us who reject his brand of politics need to make that case to the jury – not in a magistrate’s court, but in constituencies across the country.
The tendency to look to the courts to fix problems with our democracy risks politicising the judicial system, erecting a higher authority than the electorate, and discouraging us from thinking seriously about our failures at the ballot box. Parts of Twitter yesterday resembled a Trump rally, with crowds chanting “Lock him up! Lock him up!” at a hated political opponent. That, if nothing else, should give us pause.
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