Political deliberation under conditions of deception: the case of

Brexit

Sophie Grace Chappell (Professor of Philosophy, The Open University UK)

On 24 June 2016, the day after the United Kingdoms referendum on

membership of the European Union, the following 14 things all
happened:

1 UK sovereignty in Gibraltar was directly threatened by Spain

2 The pound went to its lowest level since 1985, dropping twice as far as
it did on Black Wednesday
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
4 UK sovereignty in Northern Ireland was destabilised by a call for a
referendum
5 UK sovereignty in Scotland was destabilised by a call for a referendum
6 UK sovereignty in London itself (astoundingly enough) was destabilised
by a call for UDI for London
7 We heard about the first bank intending to pull workers out of the City
of London
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
9 We were given warning that the UK was about to lose its AAA credit
rating with Standard and Poor
10 The UK PM resigned (in advance)
11 A motion of no confidence in the leader of the UK opposition was
floated
12 Iran, Trump, and Putin started audibly gloating about Brexit
13 David Cameron's much-trumpeted "renegotiation" deal of March was
declared null and void by the EU
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 for the United Kingdom came the morning
after the referendum, which the Leave side won by a little less than 4%,
on a turnout of around 70%. The referendum itself came the end of a
four-month 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 scaremongeringengaged in Project Fear and
talking down the country, as they liked to call it.
But 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, problems of which fear was an
entirely reasonable anticipation, and to which no amount of chest-puffing
bullishness about Britain was likely to provide any realistic antidote.

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. In
particular, they admitted at once that two of their central claims were
false: first that EU membership cost Britain 350m 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 Turkeys 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 UKs armed forces would be obliged to
become part of this army.

Fifthly, the Leave campaign asserted repeatedly and emphatically that

taking back control of our borders would mean border-checks on all UK
borders. Since winning the referendum, they have repudiated the idea of
border controls on the UKs only land border, that with the Irish
Republic. Either, therefore, they were knowingly making a false promise
during the campaign, or they have made the promise in good faith but
without noticing a really very obvious reason why keeping it would be
extremely problematic. This then is not a clear-cut case of intentional
deception, though it is a clear case of either-intentional-deception-or-
total-confusion.
To mention this much is to mention only the Leave campaigns deceptions
by commission. There is another story to be told about how they, and a
whole generation of political commentators and pundits behind them,
have 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 UKs membership
of the European Union.

It is not clear that it was even in Leaves 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 surprise
when they discovered, on June 24, that they had just voted themselves
out of receipt of millions of Euros per annum of EU grants. (In Ebbw
Vales case, they lost at least 12.2m from 2016 alone; in Cornwalls, they
have been pledged at least 2.5bn of EU funding over the years 2000-
2020.) The voters didnt know about this Brussels largesse for a number
of reasons; they themselves were of course partly responsible for their
own ignorance of and uninterest in what the EU was actually doing to
help them. But one other 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 aspresumablywell-
informed as Kelvin Mackenzie, ex-editor of the remorselessly Europhobic
Sun newspaper). At one point on June 24 the commonest search on the
internet in the whole UK was What is the EU?. Many voters seem to
have scrambled to understand the nature and consequences of a vote to
leave the EU only once they had already voted; their unwillingness to find
out any earlier is arguably learned behaviour, a programmed-in aversion
to thinking about the EU at all. In any case, 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.

One obvious 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
Platos 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, and if the analogy between
individual agency and political agency is good, then there is no reason
why political deliberation should not equally be invalidated by deception.

Suppose we accept this conclusion, as in fact I do. Then we come to the

momentous questions of what to do next, and of what if anything can
salvaged from the heart-breaking, mind-numbing wreckage that is
already resulting from the present decision. On the question of what to
do next, my own view is that a general election is needed to give a
democratic testing to my thesis that the referendums result is
invalidated by deception.

As to what can be salvagedwell, one good thing we might try to pick

out of the carnage is that we might seek to give legal implementation to
the principle that political deliberation under conditions of deception can
be invalid.

We need to do this in a way appropriate not to a Platonic dictatorship,

but to a modern democracy. Notoriously democracies areas Plato
himself sawprone by their very nature to marketise all sorts of
commodities, even information. We have embedded in our societys
principles a deep commitment to the legal right of free speech. That
commitment includes, unavoidably, the legal right (as opposed to the
moral right) to deceptive, misleading, knowingly false, and wildly
irrelevant assertion. I do not suggest that we ought to abridge this legal
right to lie on any grounds whateverleast of all on Platonic grounds,
given that Plato was prepared to mandate benevolent lying.

We should do something legal about the standing of electoral decisions

that depend on deliberation that is tainted by deception. But I would
move cautiously here, and avoid, for example, a move to make false
speakers in politics criminally liable for any and every falsehood that they
assert (a suggestion that Ive heard from Alan Carter). One reason for not
doing that is the inevitable overreach of any such law. In a democracy we
are all speakers in political campaigns and debates, 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 as central parts of electoral campaigning.

What I would like to see on the statute book is a law that where an
electoral result has been obtained by a campaign any of whose central
campaigning claims was demonstrably factually false, that electoral
result is struck down.
This proposed law avoids trouble about head-counting. It is not essential
to an appeal of the kind I envisage to count the numbers of people who
have actually been deceived by a misleading campaign, still less to prove
of any individuals that they in particular were deceived; the question that
matters for my proposal is just whether a successful campaign had
demonstrably false factual claims at its centre.
The proposed law avoids trouble about counterfactuals. It doesnt require
that a false campaigning claim be such that, had it not been made, the
election would not have been won. What it requires isas above
centrality. Which campaign claims are central? Is an election result
appellable because a campaigner asserts, falsely, that Ludlow is in
Staffordshire, or that the normal price of a pint of milk is 2, or some
other such trivial fib? 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 address 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.
(Second thoughts about this: where a false promise is insincerely made
during the campaign and repudiated immediately after victory, why
shouldnt that victory be subject to legal challenge on the grounds that
the promise in question was false? On reflection I think there is a strong
case for allowing electoral promises of this sort to be challenged too. But
challenges of this kind would need to be immediate; it would need to be
true that there had been no significant change in political circumstances
that now justified the repudiation of the promise and the courts would
need to bear in mind the need for a particularly swift decision on these
challenges.)
Can the law address deception by omission, i.e. deceptions that consist in
simply not mentioning a centrally pertinent point? Not as easily as it can
address deception by commission. But in principle this might be possible,
in the right circumstances.
So what might this proposed law mean, in the case of the Leave the EU
campaign? Unless we accept the second thoughts that I have just aired,
the Leave campaigners could not be liable under it for promising, falsely
as they now admit, to spend 350m 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 in very large letters on the side of
the bus.
*
I close by considering five objections to the proposal.
1 Caveat emptor. Its up to the public to inform themselves and to detect
lies.
Up to a point, yes it is. But the power of a plea of caveat emptor is strictly
limited in its home area, the law of contract. And there is no more than
an analogy-relationship between a legally proper contract and the kind of
implicit agreement that there may be in a relationship between
politicians and voters. So the power of a plea of caveat emptor is limited
here too. There are practical limits to what people can be expected to
find out, and there is a real asymmetry of power between the national
press and any individuals epistemic abilities.
2 But this law would lead to frivolous and vexatious litigation after any
and every election result by any and every party.
A standard solution to this kind of problem already exists; it is to require
litigants to pay a sum into court that they lose unless they win. What
level this sum might be set at in order to act as a sufficient deterrent
seems to me an empirical question; it depends on how many frivolous or
vexatious actions are in fact brought, and hence how much of a deterrent
we in fact turn out to require.
Two further provisions are obviously possible; one or the other of them
might also be advisableI do not settle this question here. One is to
make it clear to judges that they have wide discretion to dismiss
immediately cases brought under this law if they think they are frivolous
or vexatious. A second is to impose a cut-off in voting levels, so that no
remedy under this law can be sought if the winning side in an election
has more than X per cent of the vote on a turnout of Y percent. Unless X
and Y are both set high, this provision would face telling criticism on the
ground that truth is not settled by majority; and of course this includes
not being settled even by a 99.9% majority. This criticism should perhaps
be balanced against considerations of the negative public effects of
denying manifestations of the popular will, even in circumstances where
it can be argued that deception has occurred.
3 But this law will drag the courts into politics, and oblige judges to rule
on highly controverted questions.
The courts will be perfectly at liberty to dismiss a case brought under
this law on the grounds that assessment of the claim it says is false is too
political or too controverted for their liking. But in any case judges
cannot, and should not seek to, avoid all involvement in political matters,
still less in highly controverted questions. It is a judges job to judge.
Moreover the proposed legislation is careful to distinguish between (1)
campaign promises and (2) campaign claims. Unless we accept my
second thoughts above, the proposed law does not apply to anything
that is not a provable matter of already-existing fact, as promises are not.
Nor does it apply (3) to matters of opinion: if the claim said by the
plaintiff to be false is the claim that such-and-such political matter is a
good thing or a bad thing, that is, legally speaking, a question of opinion
not of fact, and again the proposed law does not apply to it.
4 But in any election both sides always tell lies.
The first thing to say about this objection is that it is unduly cynical. It is
easy to say glibly that politicians lie all the time; it is harder to produce
actual examples of lies that are central to political campaigns. This, I
suggest, is one reason why the case of Brexit is so unusual: it is not at all
the norm in British politics for so many plain untruths to be so recklessly
offered, at the heart of a political campaign, as (according to me above)
were offered by Leave campaigners.
Secondly, consider the game-theory of the situation. Under the proposed
law the election campaigner will reason that s/he has more to lose by
lying, in proportion as s/he thinks it likely that s/he will win. For the law
has no scope against the losers of elections; it provides only that the
election result be struck down if it was won by lies, and this penalises
only the winner of the election. It is then no matter for this law if election
losers lieapart from a proviso about stalking horses that I come to in a
moment.
It follows that this law might be thought unable to cover two kinds of
possible situation. One is the situation of defection, where two or more
candidates (say A, B, C) are against each other in a tight campaign. A or
As agents produce(s) a false campaign claim; B then reasons that, since
it is in any case unclear who the winner will be, B might as well take the
same risk as A, and produces a false campaign claim of Bs own; C then
reasons that, since A and B are now getting electoral advantage from
untruths in a contest without a clearly predictable winner, Cs campaign
too should throw aside restraint and produce false campaigns claims too.
Hence, it might be said, the law itself produces a kind of cartel of
dishonesty. But the answer to this point is simply to be steadfast in the
application of the law. Suppose the candidates finish the election in the
vote-tally order A, B, C, and B brings a successful suit under this law
against A. Then As victory is struck down and B becomes the victor
until, as may happen, C brings a parallel suit against B. If some fourth
party then brings a suit against C, all three candidates are disqualified by
dishonesty, and the whole election must be rerun. But none of this is a
good reason for thinking the law proposed unworkable.
The other possible situation is that of the stalking horse, where A and B
are candidates with a serious chance of victory, and A induces C to stand
alsowith no serious chance of victoryand to make false campaign
claims against B. So then A wins by way of false campaign claimsbut
not As own false campaign claims, so thatit could be saidA cannot be
accused of making any. But in fact A can be so accused, by anyone who
can show that A was using C as a stalking horse. For to show this is to
show that Cs false claims against B were part of As campaign claims.
Insofar as C acted on As behalf and at As inducement, C acted as As
agent, and so was as much a part of As campaign as any other agent of
A.
And what are the limits on someones counting as someone elses agent
in a political campaign? Clearly the point needs careful handling. It
should not be held that anyone whatever who says anything at all that is
to the detriment of As political campaign is ipso facto acting as the agent
of As election rivals. But it does, for example, seem likely that many
British newspapers will often reasonably be thought to be agents in this
sense: given the longstanding and well-known political alignments that in
many cases they stand for, it may well often be reasonable to hold them
accountable under the proposed law if they intentionally propagate
provably false factual claims to As advantage or Bs disadvantage. But
this question too, I suggest, is a matter for the courts to adjudicate.
There will be some boundary-cases here; but to admit that is not to admit
that every case will be a boundary-case.
5. But this amounts to a constraint on the freedom of the press! You are
saying that the press will lose their right to tell political lies!
To this I am tempted to retort Yes, and a good thing too. But actually I
am not proposing that the press lose that legal right. (Legal right: there
is of course no general moral right to tell lies.) I am proposing that the
legal right to tell political lies should remain, but be priced by the
attached risk that such lies backfire by leading to the voiding of the
results that they were intended to produce. That seems to me a moderate
and mild response to what is, in fact, one of the deepest and most
pervasive problems facing British deliberative democracy: the poisonous
and irresponsible nature of so much of our journalism.1

1 Thanks for discussion to Alan Carter, Helen de Cruz, Michael Morris, Sheila
Lockhart, Kevin ORegan, Simon Pulleyn, Simon Rippon, David Robjant, Ben
Saunders, Sylvia Terbeck, and Bill Wringe.