Breach of trust, not contract: Why politicians are allowed to lie
UK Prime Minister Boris Johnson shakes hands with Justin Trudeau. Photo from the official photostream of the Prime Minister of the United Kingdom (Flickr).
“How can you tell when a politician is lying? His lips are moving.” It’s an old joke, but exactly why do politicians lie so often? The truth is that politicians lie because it is perfectly legal to do so.
While common sense may suggest that broken campaign promises represent breach of oral contract, the courts have consistently held that holding politicians legally liable for breaking campaign promises would have a “chilling effect” on government, and therefore does not constitute breach of contract.
In a 2005 Ontario Superior Court decision, illustrative of historical outcomes, Justice Paul Rouleau ruled that holding Premier Dalton McGuinty to his campaign promise not to increase taxes would have “a chilling effect and would interfere with the concept of parliamentary sovereignty.” He went on to say that if politicians were held legally responsible for upholding their campaign promises, our system of government would be rendered dysfunctional.
This is one of many cases over the years, involving both provincial and federal governments, where the courts have upheld a politician’s right to lie.
But exactly why have courts consistently ruled in favour of dishonest politicians over the public? The answer lies in a set of legal concepts which we know collectively as “the rule of law”, formulated by British Whig jurist A.V. Dicey in his seminal 1885 work Introduction to the Study of the Law of the Constitution. In the text, Dicey formulated that “The principle of parliamentary sovereignty means… that Parliament… has, under the English Constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”
This establishes the legal precept that government has the right to make laws, and that no one has the power to overrule state legislation. Election promises cannot therefore be legally enforced because doing so would mean that the courts would be overseeing government. This would contravene Dicey’s law, which requires legislation be made by parliament and interpreted by the courts; thereby maintaining the separation of executive, legislative, and judicial powers.
Canada inherited the rule of law in the British North America Act of 1867, and it remains an underlying constitutional principle. This concept of parliamentary supremacy, consistently upheld by the courts, gives vote-hungry politicians on the campaign trail carte blanche to lure naive voters with promises they have no intention of keeping. Messages can be tailored to fit a particular audience, with absolutely no legal requirement to deliver on promises once elected.
As such, candidates for the highest office in the land are held to a lesser standard of truth-telling than everyone else, who can generally be sued for breach of contract. Voter beware.
Advertisers, for instance, are held to a higher standard. In a 2012 Supreme Court of Canada decision Richard vs. Time, the court ruled that
The general impression test… must be applied from a perspective similar to that of ‘ordinary hurried purchasers’, that is, consumers who take no more than ordinary care to observe that which is staring them in the face upon their first contact with an advertisement. The courts must not conduct their analysis from the perspective of a careful and diligent consumer. In sum, it is clear that… the ‘general impression’ test… is the impression of a commercial representation on a credulous and inexperienced consumer. Courts view the average consumer as someone who is not particularly experienced at detecting the falsehoods or subtleties found in commercial representations.
In effect, the standard is seller beware. It may seem counter intuitive to the average voter, but legally we hold retailers more accountable for honesty than we do our politicians. Truth is more important when selling a magazine subscription or deodorant, for example, than when running for prime minister.
No wonder then that Elections Canada lists false promises and dishonesty as causal factors in the declining participation of voters (79.4% in 1958 to 68.3% in 2015), particularly among young voters.
If candidates for political office are not going to at least attempt to turn campaign promises into legislation, what is the point of voting at all?
Many Canadians feel that a little “chilling effect” on government would be a good thing. A July Nanos poll found Canadians were almost twice as likely to say they are angry or pessimistic towards the federal government, as opposed to feeling satisfied or optimistic.
There do exist possible mechanisms for regulating political advertising, including oversight by the Commissioner of Canada Elections and applying the Canadian Code of Advertising Standards, however there is little political will to do so.
Professor John Mearsheimer of the University of Chicago, and author of Why Leaders Lie, sums up the problem: “Lying fosters a culture of dishonesty. There is a real downside to lying. It is difficult for a country to function well if no one trusts their leaders.”
Lantern held high, the ghost of Diogenes wanders Parliament Hill in vain.
Ken Grafton is a writer based in Wakefield, Quebec, just north of Ottawa. His background includes global executive level experience in engineering and telecommunications.