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Legal View: Will UK Courts Rule Boris Johnson Has 'Right to Tell Outright Lies'?

© AFP 2021Boris Johnson at the podium during a Vote Leave event during the 2016 Brexit referendum
Boris Johnson at the podium during a Vote Leave event during the 2016 Brexit referendum - Sputnik International
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It’s been confirmed Conservative leadership election frontrunner Boris Johnson could be prosecuted for deliberately misleading voters by claiming leaving the European Union would mean an extra £350 million weekly for use on public services such as the NHS.

District Judge Margot Coleman dismissed arguments made by Johnson's lawyers that the case was a "vexatious" attempt to undermine the result of the 2016 referendum — a preliminary hearing will now take place at Westminster Magistrates' Court, before being sent to Crown Court for trial.

The landmark decision marks the conclusion of the first phase of a private prosecution launched by campaigner Marcus Ball, who's crowdfunded almost £300,000 to support the case to date — he accuses Johnson of three counts of Misconduct in Public Office, during the periods of 21st February — 23rd June 2016 and 18th April — 3rd May 2017, the former relating the Brexit referendum campaign, the latter the general election of that year.

Lewis Power QC, who represents Ball, says Johnson's conduct was "irresponsible and dishonest".

"Democracy demands responsible and honest leadership from those in public office. The allegation with which this prosecution is concerned, put simply, is Mr Johnson repeatedly misrepresented the amount that the UK sends to Europe each week. It is concerned with one infamous statement: 'We send the EU £350 million a week'. The UK has never sent, given or provided £350 million a week to Europe — that statement is simply not ambiguous," he adds.

© Photo : Boris Johnson/twitterBoris Johnson
Boris Johnson - Sputnik International
Boris Johnson
Misconduct in Public Office is a somewhat arcane offence dating back to the 13th century, and prosecutions are extremely rare. Online resources give little clue as to whether there's any likelihood of Johnson being convicted, and what penalties he could face if so — but could even this preliminary ruling set a precedent which may have seismic ramifications for his leadership campaign, the Conservative party, Brexit, and politicians of every party in any form of campaign in future?

In search of clarity, Sputnik spoke to Dr. Donnacha O'Beachain, associate professor at the School of Law and Government, Dublin City University, and Gavin Barrett, a professor of European Constitutional and Economic Law at University College Dublin.

Bullet Proof?

It's clear the former Foreign Secretary may be in extremely hot water indeed. In theory, Dr. O'Beachain notes, he could end up in prison, with sentences for the offence ranging from six months to life — although Barrett believes such an outcome "most unlikely", especially given the intermediate steps between the summons being issued and Johnson facing prison are numerous, and likely to be drawn-out.

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"The first stage is Johnson will appear at an administrative hearing. This would be followed by a preliminary crown court hearing at which Johnson would most likely urge for the case to be thrown out. It'd take several months before the case proceeded to the level of a full jury trial, by which stage the Tory party leadership contest would be over and Johnson might already by Prime Minister," he says.

Johnson seizing the leadership is entirely plausible — every bookmaker in Britain ranks him favourite, and YouGov polls indicate he's the most popular Conservative politician. Will the prosecution, whether successful or not, hinder his leadership chances?

It seems doubtful. Barrett suggests while it's unlikely to assist his bid, he's the "teflon-coated breed" of political animal, capable of engaging in behaviour that would "destroy other politicians" without alienating his supporters, and Dr. O'Beachain concurs.

"His support base are aware of his flaws — many of which they perceive as virtues — and will probably see this as a conspiracy to deny him greatness and/or a stunt to derail Brexit. The electorate for the party leadership, and therefore the premiership, is confined to members of the Conservative Party, and they're in the main more likely to be hardline Brexiteers than the parliamentary party or certainly the public at large. Thus, what are Johnson's key failings for many will make him all the more attractive a candidate to them. Ironically, the prosecution could even strengthen Johnson's support among Conservative party members," he says.

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Nonetheless, Barrett believes the prosecution could have negative implications for the Conservative party more likely, especially given the party's extremely poor performance in the recent European elections.

"It remains to be seen if their terrible performance will be repeated in a first-order vote, like a general election. Within the party most Eurosceptics are closing ranks to defend Johnson and his right to free speech, which for many of them appears to include a right to tell outright lies," he despairs.

Moreover, neither academic ranks the chances of Johnson actually being able to deliver a Brexit acceptable to ‘leavers' — whether in the party or public — particularly high. After all, Barrett says, "the difficulty is that nobody knows what Brexit the public voted for — they voted for Brexit, full stop, without being enabled to provide any detail". He believes Johnson will find it no easier than May to win further concessions at EU level, if not even harder in fact, "given his by-now well-earned reputation for dishonesty and untruthfulness".

© AP Photo / Alastair GrantA protester wears a British union flag as people gather near parliament during Brexit demonstrations in London, Friday March 29, 2019.
A protester wears a British union flag as people gather near parliament during Brexit demonstrations in London, Friday March 29, 2019. - Sputnik International
A protester wears a British union flag as people gather near parliament during Brexit demonstrations in London, Friday March 29, 2019.
"Johnson promised a fantasy and never bothered to provide supporting detail, data, or evidence that could sustain his utopian vision of Britain after leaving the EU. Brexit is, of course, possible but not the "all gain, no pain" version Johnson offered British voters. Failure to maturely evaluate real choices and understand the consequences and trade-offs involved in leaving the single market and customs union have led to a crisis of legitimacy and the Conservative party is being assailed both from disillusioned Brexiteers and ardent Remainers," Dr. O'Beachain says.

Stunt Artist

Whether Johnson becomes Prime Minister and can deliver any kind of Brexit or not though, it's evident he intends to intimately connect the prosecution to leaving the UK, with he and his lawyers issuing various public and private statements to that effect.

One member of his legal team dubbed the move a "stunt" for instance, while ‘sources close' to Johnson are reported to have said the legal action was "nothing less than a politically motivated attempt to reverse Brexit and crush the will of the people" — the implication being were Johnson convicted, it could nullify the referendum result.

Barrett's tempted to say "they would say that, wouldn't they?" — while acknowledging the action was brought by a 'remain' campaigner and "was no doubt influenced by the individual's political views", he thinks it "unlikely" the court's ruling was similarly motivated. In any event, he states, legal challenges can't overturn referenda.

"They might possibly help bring about a change in national mood however, if they succeed in focusing enough attention on the dishonesty of the leave campaign's assertions in 2016, although it has to be said this has not worked so far. It's difficult to say where British political system and tradition are bound, although it's clear it's at a key moment in its development. There are some who believer it may veer in the kind of polarised condition the US electorate has found itself in since the last presidential election," he concludes.

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Dr. O'Beachain disagrees on the first point, countering that it is "legally possible" to challenge the validity of a referendum result, "especially if electoral laws were broken, and there have already been several unsuccessful attempts".

However, while conceding Brexit to has been driven "more by politics than law", the referendum being consultative and non-binding with "no legal obligation" for the UK Government to leave the EU on the basis of its result, the referendum being overturned is a prospect he seems to welcome.

"Were the result overturned due to proven irregularities in how the campaign was conducted it would be a victory for rule of law over political chicanery. The fact is contrary to many other European states such as Ireland and Switzerland, the British electorate, political elite and media, have very little experience or expertise when it comes to conducting referenda and that was manifestly clear during the vote on Brexit. Fanciful claims were presented by senior political figures as facts and there were inadequate checks to ensure quality control. That said, there's little evidence since 2016 a substantial chunk of the British electorate have changed their minds on Brexit, which is still a very divisive issue that's paralysed the body politic. For Brexiteers, a successful legal challenge that nullified the referendum result would be perceived as an undemocratic attempt to deny them the Brexit they voted for," he concludes.

The views and opinion sexpressed in this article are solely those of the speakers and do not neccesarily reflect those of Sputnik

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