Practical Law

On 1 September 2016, the Thomson Reuters Legal Debate Series will contest the motion that the judiciary, not just parliament, must address breached election promises. This is an interesting motion with a number of sub-questions, primarily the extent to which promises and commitments made during the course of an election campaign can be enforced, and how far those who make the commitments can be held accountable.

It is far from unusual for political commitments not to be met, perhaps most famously by the former President of the USA, George H W Bush, whose “read my lips, no new taxes” phrase before the 1988 election could not be delivered, and was cited as a broken promise in the 1992 Presidential campaign. George H W Bush remains the only President of the USA not to win a second term of office since 1980. President Bush could at least argue his intention was genuine at the time, and taxes rose as a result of economic and political changes (including a recession and the First Gulf War in 1991).

While there are numerous examples of manifesto commitments not being met by UK politicians, and an equal number of heavily spun explanations, perhaps the most stark example emerged in the EU referendum in June 2016, when Nigel Farage, the leader of UKIP, confirmed less than 12 hours after the polls closed that a commitment to spend an additional £350m per week on the National Health Service could not be guaranteed, and that the claim “wasn’t one of my adverts”.

The failure to deliver manifesto promises has long been held accountable in both Parliament and the media. However, the available sanctions are largely limited to embarrassment, and potentially losing a subsequent election. There is no current law that makes a manifesto commitment legally enforceable, either by criminal or civil law.

There are some pragmatic reasons for this. Firstly, criminal accountability could make manifestos and commitments so vague as to be pointless – “we will reduce the deficit by 60% within five years” would be made non-binding by the insertion of the words “aim to”.

There are additional practical problems. In the 2010 election, no party won overall control and the UK was governed by a coalition government for five years. The coalition required cooperation between two parties and the dropping of some competing commitments, making it impossible to form a government and commit to every manifesto promise. (The coalition government also demonstrated the power of parliamentary and media accountability: The Liberal Democrats’ broken pledge not to raise tuition fees was hugely damaging to their 2015 campaign, which resulted in a loss of 48 of their 56 Parliamentary seats.)

The issue of who is to blame for pledges not being met makes criminal liability almost impossible. Is the party leader, or the cabinet, or even all Members of Parliament culpable? What happens if the defeat is a result of a backbench rebellion? Or having a small majority? Should a new Prime Minister not be permitted any discretion to make changes, regardless of how unpopular?

While using the criminal courts to enforce broken manifesto promises is impractical, there could be a case for use to punish individuals for commitments or promises made that they know to be untrue. Both companies and individual directors can be criminally liable for misrepresentations and dishonesty made in the course of their duties, under the Companies Act 2006, under section 2 of the Fraud Act 2006 or, in a clear parallel to a political manifesto, by misleading advertising.

It seems difficult to believe anyone responsible for the leave campaign’s commitment to spend the “£350m per week” on the NHS genuinely believed it was remotely possible, although some voters were convinced and expect delivery. But the immediate problem of proving responsibility arises. Nigel Farage disowned the policy rapidly, not all of the cross party group heading the leave campaign are in government, and there is no obvious audit trail to the origins of the policy.

Misconduct in public office is a curious offence, confined to those who are public office holders and committed by an act or failure to act in a way that constitutes a breach of the duties of that office. The elements of the offence are set down in Attorney General’s reference No 3 of 2003 [2004] EWCA Crim 868. Such acts can be very minor, yet the offence carries a maximum sentence of life imprisonment. CPS policy states that where there is clear evidence of one or more statutory offences, they should usually form the basis of the case, with the ‘public office’ element being put forward as an aggravating factor for sentencing purposes.

The offence is consequently used in circumstances where no other charge can be used to prosecute the offending behaviour. Hence in R v Dunn (2003) 2 Cr App R the court held a police officer committing a violent act on duty should have been charged with assault, which provided the court with adequate sentencing powers, taking into account the breach of trust as an aggravating factor. In contract, misconduct in public office has been the charge used to prosecute some police officers offering to sell or provide information to newspapers as part of Operation Elveden, in the absence of an alternative charge. The Dunn approach was applied to Members of Parliament, when three Labour MPs, David Chaytor, Jim Devine and Elliot Morley were charged with false accounting under section 17 of the Theft Act 1967, and not misconduct in public office, after fraudulent expense claims came to light.

There are also examples of former public officials being heavily criticised by Parliament, resulting in calls by opposition MPs for a criminal investigation. In 2013 the Public Accounts Committee made the following comments about the former Director of the Serious Fraud Office, Richard Alderman:

” The former director’s decisions showed a disregard for the proper use of taxpayers’ money and a woefully inadequate grasp of the importance of ‘Managing Public Money’, HM Treasury’s guidance document on the role of an Accounting Officer. By deciding the size of severance packages, and not seeking alternative placements for staff, he failed to follow due process”.

As a result of the report, national press reported that the then Shadow Attorney General, Emily Thornberry, asked the Metropolitan Police to examine whether the behaviour of Richard Alderman constituted misconduct in public office.

On 20 January 2016 the Law Commission opened a consultation on reform of the law of misconduct in public office. The reform objectives are to decide whether the existing offence of misconduct in public office should be abolished, retained, restated or amended and to pursue whatever scheme of reform is decided upon.

The Law Commission has identified a number of problems with the offence:

• “Public office” lacks clear definition yet is a critical element of the offence. This ambiguity generates significant difficulties in interpreting and applying the offence.
• The types of duty that may qualify someone to be a public office holder are ill-defined. Whether it is essential to prove a breach of those particular duties is also unclear from the case law.
• An “abuse of the public’s trust” is crucial in acting as a threshold element of the offence, but is so vague that it is difficult for investigators, prosecutors and juries to apply.
• The fault element that must be proved for the offence differs depending on the circumstances.
• Although “without reasonable excuse or justification” appears as an element of the offence, it is unclear whether it operates as a free standing defence or as a definitional element of the offence.

Furthermore there is often some confusion between what the law is and what it should be. The question of the appropriate boundaries of criminal liability for public officials is clearly a matter of broad public interest. The consultation is now closed, but it seems likely the issue of manifesto commitments will have been raised. The Law Commission response will be interesting.

The current position seems to be that although holding individuals accountable is a vital part of an effective democracy, involving the criminal law is both impractical and a step too far. The debate on 1 September 2016 will no doubt offer some alternative views as to how the judiciary can address breached election promises from the Rt Hon David Lammy MP and Robert Palmer, and a robust response from Polly Toynbee and Dan Needle.