The prosecutor’s fallacy
Boris Johnson is surely guilty of lying - but dishonesty in politics cannot be dealt with by the courts, argues Paul Demarty
While Boris Johnson’s progress towards the Tory leadership sometimes seems unassailable, a potential wrinkle comes courtesy of Westminster Magistrates Court.
It was there, on May 29, that district judge Margot Coleman ruled that a private prosecution against Johnson could continue - and in particular that he could be summoned to court to face allegations of misconduct in public office. The back-story is one of the many strands of remainer legal action in the wake of the Brexit vote: a certain Marcus Ball was so angered by the casual disregard for the truth he observed on the other side (not, naturally, his own) that he successfully crowdfunded his way to the requisite barristers’ fees - not to say a modest salary for himself, to go full-time. From an initial ambition to take on several prominent Brexiteers for misleading statements, he seems to have narrowed his focus to Johnson, and specifically to the claim that Britain was sending £350 million a week to Europe that could be spent on “our NHS” - made infamous by the so-called ‘Brexit bus’ that toured the country in the spring of 2016.
These are the first fruits of Ball’s endeavours. It is rather difficult to say whether they come at a good or bad time for Johnson - an ambiguity to which we shall return. Ball claims that his aim is to legally rule out the sort of cavalier dishonesty he identifies in the Brexit camp: “Our objective is to change the common law. I want to set a precedent that says politicians cannot do this any more.”1
In this, he reminds us somewhat of the subculture in the anti-war movement that dedicated itself to various attempts to prosecute Tony Blair, George Bush and so forth for war crimes under international law - a sort of well-meaning naivety and simple-hearted belief that justice can prevail, so long as Good People are prepared to, as it were, prosecute the good fight.
It seems likely, on balance, that Ball is in for a rude awakening. Though Coleman found prima facie evidence that the office of London mayor had been used to deceive, as has been reported rather breathlessly, the evidentiary standard required to get the summons issued is far, far short of the standard required for criminal proof. What has in fact been achieved so far (though there is a judicial review of even this) is that Johnson and his brief must appear and formally declare whether they seek to contest the charges (clearly they will). At that point things will shift to a crown court, where Boris’s people will demand that the case is dismissed as vexatious or politically motivated. His barrister, Adrian Darbishire, made this clear:
[The prosecution’s] true purpose is not that it should succeed, but that it should be made at all. And made with as much public fanfare as the prosecution can engender. The application represents an attempt, for the first time in English legal history, to employ the criminal law to regulate the content and quality of political debate. That is self-evidently not the function of the criminal law.
Even if the case is not dismissed, Johnson is not likely to face trial for another six months, by which time he may have sailed Britain over the cliff anyway; meanwhile, the higher the stakes get legally, so they get politically, and the hidden purpose of the judiciary (to act in defence of the stability of the establishment) becomes more pressing. The trouble with openly mendacious politicians is that they make judges look honest; but most got their ceremonial outfits by defending the powerful and rich, and it is less the love of justice than cynical Staatsräson that preponderates when they are faced with this sort of issue.
If the legal strategy is obvious for Team Boris, the political strategy could go either way. He could, to be sure, instruct his lawyers to box clever, minimise his time in court, and otherwise relegate the case - as best as possible - to a minor sideshow of interest primarily to hard-core remainers in search of revenge, not to say legal nerds curious to see how the whole thing will play out.
Equally, however, he could do exactly the opposite. It need hardly be said that the Brexit constituency is - precisely - constituted by cynicism about the political elite. Johnson is, underneath his decreasingly convincing foolish-posho persona, a ruthless opportunist; and his last-minute decision for Brexit surely betrayed an instinctive lurch towards where he thought politics was going. He has played a very smart game since - with the exception of being hung out to dry by Michael Gove in the leadership battle that gave the country Theresa May - and is ideally poised to ride the anti-establishment wave to Number 10 in the near future. His transatlantic endorsement by Donald Trump is merely the latest sign.
For Ball, focusing on Johnson is a no-brainer. He is, first of all, the leading Brexiteer figure in the Tory Party and has clearly been angling to replace May for many months. On the other hand, prosecuting all such figures - which he seems to have wanted to do - would be a prohibitively expensive exercise, silk fees being what they are. But that paradoxically does Johnson a great favour. Why is he being singled out? Why, because - after Nigel Farage - he is Mr Brexit, and unlike Farage, might soon be in a position to deliver.
A Johnson aide was quoted anonymously as saying: “This prosecution is nothing less than a politically motivated attempt to reverse Brexit and crush the will of the people.” Depending on the traction the line gets, perhaps we should expect much the same sort of frothing from BoJo himself soon, and the crown court turned into a soapbox. Yes, he could tell his adoring constituency: they are coming for me, but in reality they are coming for you. - your concerns are not considered legitimate by the establishment. I will fight for the ordinary people of England - er, sorry, Britain - and bring us back to glory!
That it could come to this is, in one sense, down to Marcus Ball’s naivety. Like those who hoped to put Blair under citizen’s arrest, they labour under a Hollywood view of the truth, in which the world can be divided into the liars and the truth-tellers - and it is up to the truth-tellers to bring the liars to justice. In this world view, it is the moment of revelation that is key and, as we realise that we have been had, things are turned the right way up and order is restored.
There are many problems with this theory. Its fundamental assumption is that virtue and vice are universal constants, doing combat forever under much the same conditions. The historical conditions of possibility of a lie - or, for that matter, the acceptance of a truth - are occluded. Put another way, the lie is proposed as an explanation (of the people voting the wrong way), not as a thing to be explained (why should it have been persuasive?). Thus the slightly bizarre spectacle - as much as it did the job at hand - of people called to the stand to declare under oath that Johnson’s assurances as to the £350 million swung them into the Brexit column.
In reality, the figure was rubbished by remainers at the time. The dodgy maths of it is not something that has since come to light as a result of intrepid investigative journalism and forensic accountancy. It was transparently balderdash from the beginning, and all the City’s and Westminster’s economists were dispatched against it from the get-go. The problem is that nobody believed them. And the reason for that is that they were all liars - the same people who insisted that the rising tide lifted all boats, that despite the fact that you were worse off you were better off really, that in spite of the horrors of 2007-08 no more than cosmetic tinkering was needed to financial regulation … It is not satisfactory, from a formal logical point of view, to dismiss a proposition on the basis that its utterer is untrustworthy - this is the ad hominem fallacy. But it is very practical to do so if you have other things to do with your time than stress-test philosophical arguments; and so people do.
Capitalism is a social formation given to systematic mendacity. In its inner logic, of course, it involves the fetishism of the commodity, whereby social relations are misrecognised as brute material facts; but, if anything, it is the apparently extrinsic factors that are worse in this regard. Capitalism is born by the action of ‘the people’ against the aristocracy and clerisy - but ‘the people’ was held together as an idea long after its component classes divided into antagonistic camps, first in Britain and then in France and elsewhere: by the middle 19th century, the capitalist class itself was clearly more comfortable cutting power-sharing deals with the old elites than leading ‘the people’ to liberty, but even then the self-image persisted.
The achievement of more or less universal suffrage in the United States and then in other countries, moreover, gave rise to a professional caste of politicians, in the pay of factions of the ruling class, who were charged with selling said factions as the true representatives of ‘the people’. This is not to say there was never anything more at stake - the second American revolution was triggered by a political crisis among the paid persuaders, who certainly found a moral (and, in the southern case, immoral) fervour beyond the role prescribed for them. But it was the dishonest pattern that was set for others to follow, as the franchise could be denied to fewer and fewer peoples; the combination of a paid political class and a corrupt media - die käufliche Presse, as German social democrats liked to put it - ensured that nothing would ever be quite what it seemed.
And so it is today. The statement quoted above from Johnson’s lawyer contains a quite extraordinary lie: that Ball’s case “represents an attempt, for the first time in English legal history, to employ the criminal law to regulate the content and quality of political debate”. There is a very short response to this: the crime of seditious libel, which was only abolished as an offence in 2009 and, while largely considered an antique by that time, had been used as recently as the 1930s to prosecute communists. The truth is that political debate in this country - even during the 350-odd-year period wherein it has fancied itself as the home of liberty - has always been circumscribed, and misrepresented itself as freer than it is.
Only in a society so corrupted by dishonesty could a Tacitus-quoting toff (whose toffiness is itself rather an act - Johnson is not a horny-handed son of toil, but nor is he a blue-blood) pose as the people’s champion, and cast a 29-year-old middle class naive as a ruthless establishment hit man. Yet surely appealing to a corrupt judiciary to call corrupt politicians to account in full view of a corrupt media is a non-starter, so far as cleaning up the situation is concerned.
A real alternative requires organised oppositional politics, not courtroom stunts - and to be equal to the task, such politics must strike at the heart of the lie machine itself: capitalism.