The bear trap in the Public Office (Accountability) Bill is the unprecedented creation of a new criminal offence, punishable with up to two years in prison, of “misleading the public”. Section 11 of the Bill reads as follows:
A public authority or public official commits an offence if, in their capacity
as such an authority or official—
(a) they act with the intention of misleading the public or are reckless as
to whether their act will do so, and
(b) they know, or ought to know, that their act is seriously improper.
The reason journalists prefer to use cumbersome words such as “falsehood” and “untruth” rather than the more direct “lie” is that it is inherently difficult to prove that a person has deliberately fabricated something rather than made a simple mistake. The Bill attempts to swerve this problem by making it a crime to be “reckless” about misinformation, but this is so vague as to give lawyers a ludicrous degree of latitude. If the person knows – or “ought to know”! – that their untruth is “seriously improper”, they could face jail, but what is “seriously improper”? According to the Bill, it is anything that “a reasonable person would consider … to be seriously improper”. So that clears that up. It is also anything that “caused, or contributed to causing, harm to one or more other persons”. But what is “harm”? The Bill defines it as “physical harm, psychological harm (including distress) and economic loss”. This, again, seems rather broad.
On the face of it, this appears to mean that if any of the state’s six million employees says something untrue which someone else finds upsetting, they have committed a crime. Whether they are convicted will depend on a jury believing, firstly, that the individual knew that what they were saying was untrue — or were “reckless” in not checking whether it was true — and, secondly, that they knew that it would cause “psychological harm”.
This example might seem a bit reductio ad absurdum, but assuming the worst is not a bad way to test legislation in the current year. Section 11 takes up barely a page of the 66 page Bill and leaves so much open to subjective judgement that it is impossible to predict how it will be used, but it is not difficult to see how it could be weaponised for political reasons. The most obvious targets will be politicians themselves. In the future, when you see an MP on Question Time claiming that Liz Truss crashed the economy or that the Tories spent £37 billion on an app, instead of complaining about it on Twitter, you can call the police, citing emotional distress.
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