On 24 June 2016, the day after the United Kingdom's referendum on membership of the European Union, the following 14 things all happened.
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1 UK sovereignty in Gibraltar was directly threatened by Spain;
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2 The pound went to its lowest level since 1985, dropping twice as far as it did on Black Wednesday;
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3 In a single day's trading the UK stock exchange lost more value than the UK had paid in EU contributions in the entire 43-year history of its membership;
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4 UK sovereignty in Northern Ireland was destabilised by a call for a referendum;
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5 UK sovereignty in Scotland was destabilised by a call for a referendum;
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6 UK sovereignty in London itself (astoundingly enough) was destabilised by a call for UDI for London;
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7 We heard about the first bank intending to pull workers out of the City of London;
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8 We were given warning of a sharp rise in the cost of petrol at the pump and of a ‘review’ of their British operations by Airbus;
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9 We were given warning that the UK was about to lose its AAA credit rating with Standard and Poor;
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10 The UK PM resigned (in advance);
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11 A motion of no confidence in the leader of the UK opposition was floated;
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12 Iran, Trump, and Putin started audibly gloating about Brexit;
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13 David Cameron's much-trumpeted ‘renegotiation’ deal of March was declared null and void by the EU;
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14 And lots and lots of Leave voters – maybe the same Leave voters who didn't want to vote in pencil in case MI5 came round and rubbed out their votes, and who were protesting loudly in polling stations because there were signs that said WAY IN – told us they didn't really mean it.
This single calamitous day came at the end of a four-month referendum campaign during which the leaders of the Leave campaign, in particular Nigel Farage, Boris Johnson, and Michael Gove, had insisted (a) that Leave was a great idea for the sovereignty of the UK, (b) that Leave meant ‘taking back control’, and (c) that the Remain campaign had been shamelessly scaremongering.
To the contrary, as my list of 14 suggests (other lists of 14 or more are available), it was already evident on this very first post-Brexit day (a) that Leave was at the very least a source of very serious economic, constitutional, and social problems to the UK, (b) that Leave was at the very least a serious threat to any kind of political or economic control, and (c) that the Remain campaign had if anything rather understated the problems immediately consequent on Brexit.
Also on that first day or very shortly after, Leading Leave campaigners stepped back sharply from a number of actual or implied claims that had been absolutely central to their campaigning for their electoral victory, which they won by a little less than 4%, on a turnout of around 70%. In particular, they admitted at once that two of their central claims were false: first that EU membership cost Britain £350 m a week which could otherwise be spent on the NHS, and secondly that Brexit would reduce migration. Yet these two false claims in particular had very evidently been central to the Leavers’ campaigning, and to its persuasive impact on undecided voters, who regularly reported that two of their main reasons for deciding to vote Leave were immigration and cuts ‘caused by the EU’. (As the Leave campaign repeatedly insinuated; in fact nearly all the cuts or underfundings that they cited in this respect were more attributable to other factors, and in particular to government policies that the Leave campaigners themselves, in company of course with a number of leading Conservative Remain campaigners including the PM, had either introduced in Cabinet or supported in Parliament or both.)
A further claim made repeatedly and influentially in Leave campaigning, (a) that Turkey's accession to the EU was imminent and (b) that the UK could do nothing to prevent it, is one that I have not yet seen them repudiate; but that claim too is demonstrably false in both its parts.
The same holds for a fourth falsehood that the Leave campaign often asserted, (a) that the EU was actively moving towards the organisation of a European army and (b) that the UK's armed forces would be obliged to become part of this army.
To mention this much is to mention only the Leave campaign's deceptions by commission. There is another story to be told about how they, and a whole generation of political commentators and pundits behind them, had deceived by omission. By this I mean not just their relentless negativity about the EU, but also their failure to mention, and indeed at times their active suppression of any public mention, of almost anything from the extremely long list of positive aspects of the UK's membership of the European Union.
It is not clear that it was even in Leave's own narrow political interest to suppress these positives entirely. To much of the electorate in, for example, Ebbw Vale and Cornwall, it clearly came as a massive shock when they discovered, on June 24, that they had just voted themselves out of receipt of millions of Euros per annum of EU grants. They didn't know this for a number of reasons – and they themselves were of course at least partly responsible for their own ignorance of what the EU was actually doing to help them – but one major reason was clearly the unwillingness of a Europhobic press and a ‘Euro-shy’ officialdom to tell them about the positive side of the EU. On June 24 and following this ignorance or ignoring of the positive data about the EU led directly to a great deal of ‘buyers’ remorse’ among Leave voters (even ones as well informed as Kelvin Mackenzie, ex-editor of the remorselessly Europhobic Sun newspaper). This ‘buyers’ remorse’ quickly became a serious obstacle to the Brexit campaigners at the point where they were trying to get the public to accept the referendum decision.
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One philosophical question arising from this sorry tale is this: is deliberation binding when its results are arrived at by deception? As a question in the individual case, we have no difficulty at all in seeing that the answer to this question is ‘Of course not’. Ever since Plato, perhaps longer, it has been commonplace to make an analogy between individual agency and the agency of the political community. Plato, of course, did not see the political community, as a whole, as a deliberator in our modern democratic sense; and right now it is certainly tempting, for any British political philosopher, to have more sympathy than usual with Plato's sort of benevolent paternalism. Still, the point is obvious enough. If individual deliberation is regarded, as it clearly should be, as invalid when it has been warped by deception, there is no reason why political deliberation should not equally be invalidated by deception.
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The question is how to implement this principle: not in a Platonic dictatorship, but in a modern democracy. Notoriously democracies are – as Plato himself saw – prone by their very nature to ‘marketise’ all sorts of commodities, even information. We have embedded in our society's principles a deep commitment to the legal right of free speech, and that commitment includes, unavoidably, the legal right to deceptive, misleading, knowingly false, and wildly irrelevant assertion. I do not suggest that we ought to abridge this right on any grounds whatever – least of all on Platonic grounds, given that Plato was prepared to mandate benevolent lying.
What I do suggest is that we move to do something legal about the standing of electoral decisions that depend on deliberation that is tainted by deception. I would move cautiously here, and avoid moving to make false speakers in politics criminally liable for any and every falsehood that they assert. One reason for not doing that is the inevitable overreach of any such law. In a democracy we are all speakers, at least potentially, and it is only too easy to be, whether intentionally or not, a false speaker. Even if it were not a drastic abridgement of freedom of speech, still the courts would simply have too much to do to prosecute every false speaker in every political debate. The false speech we need to focus on is the false speech that makes most difference: in particular, false assertions made in electoral campaigning.
What I would like to see on the statute book is a law that where an electoral success has been obtained by a campaign any of whose central campaigning claims was demonstrably factually false, that electoral success is struck down.
This proposed law avoids trouble about counterfactuals. It doesn't require that a false campaigning claim be such that, had it not been made, the election would not have been won. What it requires is – as above – centrality. Which campaign claims are central? Is an election result appellable because a campaigner says, wrongly, that Ludlow is in Staffordshire, or that the normal price of a pint of milk is £2, or some other such trivial blunder? Centrality is a matter of judgement for the courts; but that strikes me as a healthy feature of my proposal, not a problem for it.
The proposed law doesn't exclude false promises. But no good law about political deception can, for two obvious reasons. First, it will usually take too long for it to become clear that a false promise has been made for it to be legally remediable by the striking-down of the election result. (If Mr A does not fulfil his electoral promise to do X before his fifteenth year in office, he is not necessarily a false promiser until then; nor if he is cast out of office in year fourteen.) Secondly, sincere politicians sometimes have to break campaign promises for perfectly good reasons; we have to allow them that room for manoeuvre, and the price of allowing it is that we allow insincere and lying promises to go unpunished in the way I am proposing. False promises will, then, still have to be punished in the traditional way: at the ballot box in the next election.
So what might this proposed law mean, in the case of the Leave the EU campaign? The Leave campaigners could not be liable under it for promising, falsely as they now admit, to spend £350 m a week on the NHS. But they might be for falsely claiming that this money was available. Similarly the Leave campaigners could not be liable for promising to cut immigration. But they might well be for claiming that Turkey's accession to the EU was imminent. In both cases, what the courts would have to test was whether these campaign claims could reasonably be held central to the Leave campaign. And as I say, that would be a matter for the courts to decide; though in one case at least it does not seem a hard decision, given that the false claim in question was written on the side of the bus.
