As Britain gradually wakes up to the consequences of living under a blanket of well-meaning but loosely worded legislation, the feel-good policies continue to wind their way through Parliament. The Public Office (Accountability) Bill, which had its first reading in the Commons last week, comes with a number of red flags. Firstly, it has a nickname that references a notorious tragedy (the “Hillsborough Law”). Secondly, it is yet another hangover from the Tory years and has the backing of Theresa May. Thirdly, it has been repeatedly delayed due to what the BBC describes as “substantial opposition … from various sources” and has been sprung on Parliament in its current form now because the Labour Party wants to avoid a hostile reception in Liverpool when it holds its annual conference next week.
The Bill has a laudable aim (don’t they always?). It is intended to prevent officials and public bodies from engaging in cover-ups. Its guiding principle is that public servants should act with “candour, transparency and frankness” and “in the public interest”. No reasonable person could object to that, but then no reasonable person objected to people having their family life respected until that legal right was used to prevent the deportation of convicted paedophiles. The question that should be asked of any new legislation is not “how much good will this do if it works as intended?” but “what is the worst way this could be abused by judicial activists, politically motivated lawyers and other bad actors?”
The bear trap in the Public Office (Accountability) Bill is the unprecedented creation of a new criminal offence, punishable with up to two years in prison, of “misleading the public”. Section 11 of the Bill reads as follows:
A public authority or public official commits an offence if, in their capacity
as such an authority or official—
(a) they act with the intention of misleading the public or are reckless as
to whether their act will do so, and
(b) they know, or ought to know, that their act is seriously improper.
The reason journalists prefer to use cumbersome words such as “falsehood” and “untruth” rather than the more direct “lie” is that it is inherently difficult to prove that a person has deliberately fabricated something rather than made a simple mistake. The Bill attempts to swerve this problem by making it a crime to be “reckless” about misinformation, but this is so vague as to give lawyers a ludicrous degree of latitude. If the person knows – or “ought to know”! – that their untruth is “seriously improper”, they could face jail, but what is “seriously improper”? According to the Bill, it is anything that “a reasonable person would consider … to be seriously improper”. So that clears that up. It is also anything that “caused, or contributed to causing, harm to one or more other persons”. But what is “harm”? The Bill defines it as “physical harm, psychological harm (including distress) and economic loss”. This, again, seems rather broad.
On the face of it, this appears to mean that if any of the state’s six million employees says something untrue which someone else finds upsetting, they have committed a crime. Whether they are convicted will depend on a jury believing, firstly, that the individual knew that what they were saying was untrue — or were “reckless” in not checking whether it was true — and, secondly, that they knew that it would cause “psychological harm”.
This example might seem a bit reductio ad absurdum, but assuming the worst is not a bad way to test legislation in the current year. Section 11 takes up barely a page of the 66 page Bill and leaves so much open to subjective judgement that it is impossible to predict how it will be used, but it is not difficult to see how it could be weaponised for political reasons. The most obvious targets will be politicians themselves. In the future, when you see an MP on Question Time claiming that Liz Truss crashed the economy or that the Tories spent £37 billion on an app, instead of complaining about it on Twitter, you can call the police, citing emotional distress.
It is a feature of politics that each side believes the other side to be a bunch of liars. Andrew Neil has accused the Starmer government of taking “the lying, the gaslighting and the deceit to a new level”. Many people said the same of Boris Johnson. Those who accuse politicians of being liars often look back with nostalgia to supposedly better days. In his book The Rise of Political Lying, Peter Oborne portrayed the Blair government as uniquely dishonest. That was twenty years ago. It is more than fifty years since Harold Wilson went on television to tell the British public that devaluing the pound would not affect the value of the pound in their pocket. It is nearly 40 years since Ronald Reagan told the American public that he had never traded arms for hostages. Remember Neil Hamilton? Jonathan Aitken? Jeffrey Archer? Bill Clinton? I could go on.
Was it a lie when Vote Leave said that the UK sent £350 million a week to the EU? Is it a lie for the current government to claim responsibility for bringing inflation down from 11 per cent? Between the truth and outright lies, there is a wide world of hyperbole, exaggeration, error and gilding the lily. People misspeak. Statistics are mangled, facts are misremembered and memories are distorted. It is best to be charitable and not attribute to malice what can be explained by innocent error or simple incompetence, but political obsessives are never charitable towards their opponents and the Public Office (Accountability) Bill risks giving them a powerful new weapon. Ultimately, it will be for a jury to decide whether words spoken by a politician were said with ill intent and caused harm, but juries are made up of people and people hate politicians.
At the very least, there is a danger of the police being overwhelmed by vexatious complaints from fanatics, not just against MPs but against anyone in the public sector. But since anyone who complains about the obvious flaws in this legislation will be accused of being in favour of lying and insensitive to the families of the Hillsborough victims, the Bill is only likely to get worse before it becomes an Act.
