David Mundy: The many ways in which electoral law needs urgent reform
The existing law is not equipped to deal with online ads, such as those being pushed out by the Conservatives on Facebook.
Theresa May’s decision to hold an early general election came as a huge surprise to most. Not only had she previously ruled it out but it seemed to go against the intention of the Fixed-Term Parliaments Act 2011. But regardless who wins the election, a serious case can be made for the need for urgent reform of electoral laws.
There are questions concerning the efficiency and even relevance of election law in the internet age. Much of the existing legislation is simply failing to keep pace with societal demands and methods of electronic communications. Anomalies have been thrown up by the heavily criticised Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014 (the Lobbying Act) and changes wrought to the Political Parties, Elections and Referendums Act 2000 (PPERA).
If you stir in legislation such as the European Referendum Act 2015 which set the question to appear on the ballot paper but failed to address the legal consequences of a vote to leave, and the anomalies thrown up by the Fixed Term Parliaments Act 2011, not least the ability to avoid a fixed-term, then the unsatisfactory basis upon which the country has gone to the polls three times in the last three years is underscored.
The Lobbying Act has been widely criticised for the chilling effect it is having on the lawful raising of issues by third party campaigners which legitimately require airing at election time. The Lobbying Act amended legislation to restrict spending by ‘non-party campaigners’ during election periods (there are different thresholds for registered (£20,000) and non-registered (£320,000) campaigners; the threshold for registered campaigners is higher but also attracts onerous reporting requirements on spending and donations. Expenditure is ‘controlled’ if it is spending on election activities which “can reasonably be regarded as intended to influence voters to vote for or against political parties or categories of candidates including those parties and categories of candidates who support or do not support particular policies or issues”. Two tests known as the purpose and public tests must also be satisfied.
But the ‘regulated period’ has been thrown into confusion by the calling of a ‘snap’ election. Envisaged as the twelve month period running up to a known future election date, the snap election called under the Fixed Term Parliaments Act 2011, means that the regulated period has necessarily been backdated to the twelve months commencing 9 June 2016 and ending on polling day. So spending by campaigners before the calling of the election all counts towards the ‘controlled’ limit.
Because of its retrospective effect many campaigners, including charities, are already in breach of these obligations and above or close to spending limits. Moreover some have already spent funds on the local government elections in May or the Northern Ireland Assembly elections, without knowledge that a future snap election would bring that spend under regulation and within a future cap. Charities and other third party campaigners have been advised to register. Guidance published by the Electoral Commission for non-party campaigners in relation to the UK general election states: ‘We are unlikely to consider enforcement action against non-party campaigners that have taken prompt steps to register, even if their regulated spending is already in excess of the registration threshold”. However, it can be argued that any legislation retrospectively creating civil or criminal liability is in breach of natural justice and unconstitutional. It certainly needs reform.
Then we come to ‘fake news’. Initially some of the platforms on which the ‘news’ was being spread failed to recognise the problem. Now they are taking action but the authorities here seem even slower off the mark. In announcing an inquiry into ‘fake news’, the Culture, Media and Sport select committee did not even include regulation in its initial list of questions. Whether they would have recommended change in this area we do not know because the election ended their inquiry.
The existing law is good at stopping Banksy from offering free prints to those voting against the Conservatives in the election but anything more subtle remains a challenge. A ‘troll army’ of bots trying to influence elections remains untouched. Questions about the use of online ads, which are delivered centrally but targeted in specific constituencies too need to be part of the reform in electoral laws that are needed.
Reform needs to extend to contemporary means of regulating social media that is compatible with the constraints placed on the press and conventional media. Whilst the traditional media operate within well-defined and understood boundaries, other communications channels appear to have a freer hand. Social media platforms have enormous power to influence opinion based accurate or corrupted news and this needs to be recognised.
David Mundy is a partner and parliamentary agent at Bircham Dyson Bell.