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Did Legal Loophole Win It for Leave?

05/07/2016 10:40 | Updated 05 July 2016

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The Brexit pledge of more money for the NHS was a key argument in the EU referendum. Indeed, it could well have been the deciding factor in a narrow win following a bruising campaign.

The £350m per week in question was blasted on the side of the Leave battlebus, and cited by Brexiters-in-chief remorselessly. Highly controversial but seemingly widely believed, it has now been thoroughly disowned and all traces purged from the campaign website.

Spin - arguably bending truth up to but not beyond breaking point - has always been part of the process. And "over-spinning" can often be justified on the basis that it is just someone's opinion, rather than a clear statement of fact (a crucial distinction, as every newspaper journalist knows well). But how could something so unsupported have been allowed to surface in the first place?

You see, large parts of the Representation of the People Act (RPA) were incorporated into the regulations governing the Euro-referendum, as a clear set of rules to ensure everyone behaved themselves.

Large parts but not, apparently, the bit that says you can't bend the truth beyond breaking point: Section 106 in particular makes it an offence to publish a statement about a rival candidate that you know to be false.

It was this clause - or rather the failure to abide by it - that ended the parliamentary career of the MP for Oldham, and former minister for immigration, Phil Woolas. In the 2010 General election, he narrowly defeated his Lib-Dem rival Elwyn Watkins, but in doing so had made some specific statements about him that were subsequently shown to be in breach of the Act. The election was declared invalid, Woolas was barred from being a candidate for three years, and Debbie Abrahams won the rerun contest for Labour with a comfortable majority.

So despite the cross-referencing of these two pieces of legislation, why did unedifying untruths still unfold?

To my lay-person's eye, there seems to me to be one obvious reason - Section 106 refers to candidates, not campaigns. And I can hear the argument that a campaign, especially such a broad one as Leave, cannot realistically be expected to adhere to the same standards as one individual candidate.
But such arguments surely misunderstand the issue. The whole point is that elections must be fair and seen to be fair. That fairness is vital because if the result of a poll is not credible, the consequences of that in terms of social unrest, economic uncertainly, and political instability can be very great indeed. As we are seeing in this extra-ordinary post-referendum period.

Therefore, from the perspective of practicality as well as ethics, the same standards must apply to referenda as to all other elections covered by the RPA.

"But hang on," my hypothetical critics retort - "who speaks for a campaign?" Why should leading figures be trapped by what some low-level barrack-room loudmouth may sound off about? Campaigns are just too big to be held to the same standards.

This seems a thin argument: Parliamentary candidates also have significant teams of support staff working on their campaigns. This is recognised by the Act. And in any event Leave and Remain were officially endorsed groups. There is a clear chain of command. So I see no reason why a Section 106 (or equivalent) proviso should not apply in these circumstances, albeit with an additional built-in opportunity for repudiation. A suitable acknowledgement that there has been a problem, a disavowal of the offending statements and an undertaking to fix whatever has gone wrong would seem to be an appropriate and effective sanction in the context of a referendum.

It is time to take a further step to remove lies from our political process. The mess they create smears those who voted Leave with honourable intentions - and does damage to us all.

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