That is fair. What I am doing is examining what section 106 of the 1983 act is intended to achieve and applying it in a broader way in relation to referendums—I believe that it should also be applied in a broader way to elections.
Amendment 85 does not apply only to statements that are made by candidates; it creates an offence that can be committed by anyone, including national political campaigns that make statements about candidates. It broadens the position to cover objectively false statements, not merely expressions of contestable opinion, in relation to the issues and the process and conduct of a referendum. I think that that approach should be taken in relation to elections as well, albeit that this bill is about referendums.
I draw members’ attention to the fact that just in recent days, for example, an entirely concocted tweet emerged purporting to be in the name of Jeremy Corbyn in response to the London bridge attack. It claimed that, as his first reaction to those events, he stated:
“A man was murdered by British Police in Broad daylight”.
That was entirely untrue. If Jeremy Corbyn were to identify the originator of it, he could say that it was defamatory—defamatory or libellous, I suppose—but it does not engage any aspect of electoral law.
If something similar were to happen during a referendum, again, there is a lack of any legislation to deal with it. It has happened during referendums. There were many legitimate, contestable claims made in the 2016 EU referendum, but to state that
“Turkey is joining the EU”
was an objectively false statement. To say that
“The EU blocks our ability to speak out and protect polar bears”
was an objectively false statement. I am sure that members are familiar with others, so I do not need to go into huge detail.
With this group of amendments, I have sought to create the possibility that a criminal offence would be committed when objectively false statements are made about the conduct of the poll. For example, in a future referendum in Scotland using the new electoral franchise—assuming that the Scottish Elections (Franchise and Representation) Bill also passes—if someone was to go around saying, “English people aren’t allowed to vote in this election,” and using that claim as a voter suppression technique, they would fall foul of this offence. If they were to say, “Young people—16 and 17-year-olds—aren’t allowed to vote in this referendum,” they would be making an objectively false claim as a voter suppression technique, and they would fall foul of the offence.
The offence would also address matters connected to the question on which the referendum is being held. Again, the offence would not apply to legitimate expressions of opinion or contestable claims, such as, “I think this would be good—or bad—for our economy.” It would be for the court to determine whether objectively false claims had been made. That is set out in amendment 85, and amendments 86 and 87 deal with the consequences.
I think that it is legitimate to say, as amendment 87 does, that if such claims are made by
“a permitted participant”
or
“a designated organisation”,
as opposed to an individual, the criminal consequences should be higher. I would group amendments 85, 86 and 87 together as one aspect of the offence.
Amendments 88 and 89 then deal with the political consequences: they are an optional extra, if you like, following the creation of the offence, and concern challenges to the validity of the results. Again, I remind members that a constituency election can be overturned if such substantial claims are found to have been made.
Amendment 88 allows for a period in which a petition can be brought to the Court of Session
“to declare the result of the referendum not to be valid”.
It would be for the court to determine whether
“a sufficient number of persons have been convicted of, or charged with, the corrupt practice of making a false campaign statement”
and whether
“the nature of the offences”
are adequate to justify a ruling. That ruling could involve prohibiting ministers from taking action to implement the result of the referendum, or imposing conditions. I have made it clear that such a prohibition would not prohibit ministers from taking preparatory action—for example, negotiating with another party as to how the result would be implemented, or, indeed, drafting and introducing legislation. It would be the irrevocable action, the ultimate implementation, that would have to wait until that process had been dealt with.
Amendments 88 and 89 would give members of the public and campaigners the ability, to some extent, to go to court and say that a referendum has been so brutally interfered with by fake news or false claims as to render its results invalid.
It is perfectly clear, as I think we all know, that if the 2016 referendum had been regulated at the same level as an election, the result would already have been overturned. It would not have withstood the same scrutiny as an election result and would not have been regarded as having the same legitimacy, given the practices that we all know took place in relation not only to existing criminal offences but to the deliberate falsehoods that were expressed during the referendum campaign. If we are going to have more referendums in Scotland in the future—and it is an “if”—we should hold them to a high standard, which should include a provision that is equivalent to the offence of making false statements in relation to an election.
I move amendment 85.