Paul Embery Is Wrong on Freedom of Expression
Paul Embery Is Wrong on Freedom of Expression
And the Law Has Long Settled the Question
The criticism arises in response to amendments currently before Parliament to the Public Office (Accountability) Bill, commonly known as the Hillsborough Law. As drafted, the Bill would, for the first time, create a statutory criminal offence of Misleading the Public, applying to Government Ministers and other public officials, but not to Members of Parliament or members of the House of Lords. Parallel legislative work is also underway in Wales, where the Senedd is considering its own proposals to legislate against deliberate deception in politics, raising the prospect that either Westminster or the Senedd could become the first legislature in the world to introduce a specific criminal offence addressing serious, intentional lying in public life.
In Westminster, at Report stage, Amendments 13–18, tabled by Luke Myer MP, propose extending the Misleading the Public offence to MPs and peers when they make statements to the public outside Parliament. Statements made in Parliament would remain fully protected by parliamentary privilege. The substance of the offence would not change: prosecutions would require the consent of the Director of Public Prosecutions; the prosecution would have to prove that the defendant knowingly or recklessly made a false statement; honest mistake, political opinion, and disagreement would remain outside scope; and, in serious cases, guilt would be determined by a jury under full judicial oversight.
It is these proposed amendments, and the prospect of MPs being subject to the same statutory duty of honesty as Ministers, that Embery characterises as authoritarian, impractical, and undemocratic.
In his article, Embery raises a series of concerns: that criminalising deliberate lying by politicians would be impractical to enforce; that it is unclear who would decide what constitutes a lie; that such laws would chill political debate; that they are undemocratic because voters should decide at elections; and that they could be weaponised against non-conformist or populist candidates. He ultimately characterises the approach as unworkable and undemocratic.
Those concerns are understandable. They are also wrong, and they have already been addressed repeatedly by centuries of criminal and constitutional law.
Freedom of expression has never protected deliberate deception
The right to free expression does not confer a licence to lie where serious harm results. In financial fraud cases, defendants are not permitted to argue that knowingly false statements to investors are protected speech. The same principle applies in perjury cases: a witness who lies under oath cannot claim protection under freedom of expression. Where an allegation is disproved by evidence, such as video footage, the law intervenes because freedom of expression does not extend to deliberate falsehoods that undermine justice.
The courts have already applied this reasoning directly to politics through the offence of making false statements of fact about a candidate’s personal character or conduct under section 106 of the Representation of the People Act 1983. In R v Woolas (2010), a politician was removed from office for knowingly making false statements during an election campaign. The court held explicitly that freedom of expression does not extend to lying. The distinction is settled: expressing an opinion is not the same as knowingly deceiving the public.
Who decides whether a politician has lied?
One of Embery’s central objections is uncertainty over who would determine whether a politician has lied. In practice, this question is already answered by ordinary criminal process.
Allegations of deliberate deception would be assessed in the same manner as other criminal allegations involving dishonesty. Prosecutors would first be required to meet a high evidential threshold in that they would need to prove that the accused knew their claim was false, or, that they were recklessly dishonest. In more serious cases, any potential custodial sentence of two years maximum could arise only following a jury trial in the Crown Court, with an independent judge ruling on matters of law and admissibility and a jury determining guilt or innocence on the facts. Less serious allegations could be dealt with in the magistrates’ court, although in most scenarios an accused would be entitled to elect trial by jury. This is the established mechanism by which courts already determine allegations of fraud, perjury, and misconduct. Nothing here is novel.
The Boris Johnson prosecution
The same legal principles were tested in the attempted private prosecution of Boris Johnson. In 2019, private prosecutor Marcus J Ball brought proceedings in relation to statements made by Johnson about UK public spending figures during the EU Referendum. The case was intended to establish that deliberate deception by a public office holder could fall within the common law offence of misconduct in public office.
The case was permitted to proceed through two hearings and was formally ordered to a jury trial before ultimately being halted on procedural grounds after a third hearing. That decision is the subject of an upcoming documentary film due to be released this summer. Throughout those proceedings, the question of freedom of expression was notably absent.
Commenting on the case, Ball said:
“At no stage in any of the three court hearings, nor in any written submissions, was freedom of expression relied upon as a defence. This is because freedom of expression does not protect statements where the speaker is shown to have known that what they were saying was false.”
Legal safeguards and scope
Criminal barrister Colin Witcher, of Church Court Chambers, said:
“Criticisms of the Bill based on freedom of expression or similar concerns are understandable. However, the Bill is intended to be carefully framed so that prosecutions would only proceed where there is evidence that the accused knew, or was reckless as to whether, the statements in question were false.”
Lewis Power KC, of Furnival Chambers, added:
“This is a tightly constrained offence. A prosecution could proceed only with the consent of the Director of Public Prosecutions, parliamentary privilege is preserved in full with statements made in Parliament excluded, and the evidential threshold is set deliberately high. The prosecution must prove intentional or reckless deception, not mistake or political error, and statutory defences, including reasonable excuse, are expressly provided for. In any serious case, guilt would be determined by a jury, under full judicial oversight. The result is an offence of narrow scope, designed to apply only where deliberate deception is clearly and strongly evidenced.”
Campaigners stress that the amendments do not criminalise political disagreement, exaggeration, or controversial opinion. They are directed solely at the most serious cases of deliberate deception on matters of significant concern to the public: conduct already prohibited across many other professions.
Jennifer Nadel, Chief Executive of Compassion in Politics, said:
“This Bill simply restricts the freedom to lie. The law already prevents other professions from misleading the public and the same principle should be applied to politicians. Finally, politicians will be catching up with legal accountability similar to that which most of the rest of us already face.”
Ball concluded:
“Paul Embery is widely respected for his public service as a Firefighter and for his trade union work. His dedication to protecting people from harm is clear and he is a man to be admired. But on this issue, the danger he identifies is misunderstood. The law has already grappled with, and resolved, each of the concerns he raises. Suggesting otherwise risks leaving the public more fearful and less informed about how freedom of expression operates. He is right that caution is required, and it is inevitable that attempts will be made to misuse any new offence. However, the Bill has been drafted with sufficient precision and safeguards to make such abuse extremely difficult."
Freedom of expression remains a cornerstone of democracy. So too does the principle that those who hold public power should not be permitted to knowingly deceive the public with impunity. The law has long recognised that these principles are not in conflict.
Parliamentary support and likelihood of a vote
The proposed amendments have now attracted significant parliamentary backing. A total of 30 MPs from five different Parties have formally sponsored Luke Myer MP’s Amendments 13–18, making them the second most-supported set of amendments at Report stage across the entire Bill, by number of sponsoring MPs. Only a separate proposal led by Ian Byrne MP, relating to the security services, has attracted more sponsors.
In parliamentary practice, this level of cross-party sponsorship is regarded as a strong indicator of seriousness and salience, particularly at Report stage, where time is limited and the Speaker must decide which amendments are selected for debate and division. Amendments attracting substantial support are generally more likely to be chosen. Attention is therefore focused on whether the Speaker will select Amendments 13–18, a decision that would require MPs to confront a clear constitutional question: whether the statutory duty of honesty created by the Bill should apply consistently across public office, including to Parliament itself.
Next parliamentary stage
The Bill is due to return to the House of Commons on Monday 19 January for Report stage. If selected, Amendments 13–18 would require MPs to vote on whether Members of the Commons and the House of Lords should fall within the scope of the Misleading the Public offence, ensuring that the same statutory duty of honesty applies to all who serve the public.
END
Key links
Paul Embery's GB News Opinion Piece
https://www.gbnews.com/opinion/welsh-senedd-lying-ban-bill
Public Office (Accountability) Bill
https://bills.parliament.uk/bills/4019 (Misleading the Public offence (Clause 11): see Chapter 3, Part 2 of the Bill)
Luke Myer MP — Amendment Proposals
https://publications.parliament.uk/pa/bills/cbill/59-01/0341/amend/public_office_rm_rep_0113.pdf
MP sponsors of Luke Myer MP’s amendments
https://bills.parliament.uk/bills/4019/stages/20349/amendments/10031640
About Bates Wells
The amendments have been developed with pro bono legal support from Bates Wells, which advised on parliamentary drafting and statutory safeguards.
A spokesperson for Bates Wells said:
“The Hillsborough Bill is an important and ambitious piece of legislation. Bates Wells is proud to contribute to the public debate and development of the Bill by providing pro bono support to Compassion in Politics on these amendments. At a time when trust in democratic systems is declining, it is right to question whether the offence of misleading the public should expressly apply to parliamentarians and candidates in parliamentary elections.”Bates Wells is the only law firm with a Roll A Parliamentary Agent authorised to promote private bills in Parliament, alongside a top-ranked electoral law, campaigning, and public law practice. This expertise has enabled the firm to support Compassion in Politics on these amendments on a pro bono basis.
About Compassion in Politics
Compassion in Politics is a cross-party think tank working to restore trust, integrity, and humanity in public life. It campaigns for evidence-based democratic reform, including laws to deter deliberate political deception. It provides the Secretariat for the All-Party Parliamentary Group on Compassionate Politics, chaired by Kim Leadbeater MP, with nearly 60 parliamentary members.
About ExecProsec
ExecProsec is a UK not-for-profit organisation focused on closing gaps in legal and parliamentary accountability at the highest levels of public office. Its work includes Ball v Johnson (2019), a crowdfunded private prosecution attempt against Boris Johnson (PERHAPS REMOVE?) that tested the application of misconduct in public office to political deception and exposed significant procedural issues within the High Court. ExecProsec has since developed detailed parliamentary proposals, including amendments to the Public Office (Accountability) Bill 2025, arguing that deliberate deception of the public should be a criminal offence applying equally to Ministers, MPs, and Peers, supported by clear statutory safeguards and independent prosecution.
https://www.execprosec.com
Thank you and kind regards,
Marcus J Ball
Private Prosecutor & Legal Reform Campaigner
Campaigning to establish lying in politics as a criminal offence since 2016
Privately Prosecuted Boris Johnson (Ball v Johnson 2019)
