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Fit for Purpose

Electoral law needs to change to keep up with technology, says Roy Kennedy.

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Opinion

Electoral law in the UK is in a very unsatisfactory state. The current position of the government is that they need to wait for various court cases, inquiries and reviews to complete before deciding what to do. But this leaves us with a system that is – at best – ineffective.

Advances in technology and their application in elections, referendums and campaigns has put a huge strain on the law, which is manifestly failing to ensure our elections are free from undue or malign interference. This is making it excessively difficult to deliver, as far as practically possible, a level playing field.

The principle legislation covering elections and their local campaigns is the Representation of the Peoples Act 1983. It is 35 years old and was put on the statute book when the war between VHS and Betamax video recording systems was still in full swing. The first Apple MacIntosh computer was still in development and would not be launched until 1984 and the first home laser jet printer was yet to go on sale.

That is the problem: our world has changed beyond all recognition over the last 35 years but the law covering our elections has not.

As a young activist and election agent in the 1980s I can still recall my delight in being able to purchase the address labels for all voters in the constituency and explain to members that we no longer needed hand written envelopes as sticking on the labels was more efficient and saved us lots of time.

Whereas today’s election agents, after signing off the election address proofs will often not see the finished product until it arrives through letterboxes having gone direct from the printer to the Royal Mail.

The Political Parties, Elections and Referendums Act 2000 regulated donations and campaign finance, introduced national spending limits for parliamentary and assembly elections and established the Electoral Commission as an independent regulator. This was a welcome move but again the speed of change has outpaced this legislation in many respects.

Initially the Electoral Commission was set up on the basis that no one could serve as a commissioner or be employed by the Electoral Commission if they were or had been a member of a political party. The effect of this was to deny the Electoral Commission valuable insight into political parties and political campaigns, and when that decision was relaxed I served for four years as the first Electoral Commissioner nominated by the Labour party. The Commission has to be central to addressing these issues. That will need to include considerable reflection on their part on how to address problems as a regulator with a much more nimble approach.

Today, by using social media platforms and data, we have the ability to send targeted advertisements to individuals directly. This has brought a whole new level of campaigning to the fore and engaged with people in a way that putting a leaflet through their letter box had long since failed to do.

These advertisements often include graphics and video messages from candidates or endorsers, address very specific and very local issues and seek to get a response from the recipient.

Modern campaigning is evolving as new innovations in marketing and the use of data are applied to elections and political campaigns. The important thing is to have easily enforceable legislation that requires the data to have been collected legally, that ensures it is clear who is sending the material to the recipient and that imposes a proper audit trail to confirm who is responsible for the material and what they have paid for it.

Social media platforms such as Twitter or Facebook have not been as responsive as they should have been in ensuring the content they host conforms with current requirements. We will need clear legislation to set out their responsibilities in making sure our elections are free and fair. Their role in playing an active part in protecting our democracy cannot be understated.

We have to ensure not only that advertisements and  messages posted during the short campaign are compliant but also in the longer regulated period where considerable sums of money are spent by political parties and campaigns.

Each organisation involved in the process must take responsibility and not pass the buck. The suggestion that as a technology platform there is no responsibility for content cannot be accepted. The Royal Mail examines every election address it delivers and will only deliver those that it has approved against a set criteria. This has proved to be no problem for political parties in the United Kingdom and ensures a basic standard all have to adhere to. This could and should be replicated with social media. Dealing with political parties and regulated campaigners and campaigns is a challenge but one that can be delivered.

An even bigger challenge is how to address the fake news operations which deliberately send out falsehoods, mistruths and lies. They do so with the specific intention of getting them accepted as ‘the truth’, to malignly impact on public opinion and ultimately people’s voting intention, with the active support and amplification of Twitter trolls and bots.

The real problem is that by the time these are rebutted with the less interesting truth, there is no possibility of it being accepted as such. Labour in the mid 1990s became very effective at countering material that was not true. But the challenge today is that everyone who wants elections and campaigns fought on the facts and on the truth rather than lies is failing at ensuring this. Where it is proven that these operations are in business to distort our democracy with fake news and lies then the power to prevent them from operating in the United Kingdom should be granted to the Electoral Commission.

The use of ‘dark ads’ funded by organisations, individuals and foreign money who want to keep their identity secret is a particular problem in spreading fake news. To address this we need to have complete transparency on who is funding what on social media platforms with respect to elections and political campaigns, all year round. We have to legislate to set out who can post election advertisements and every one of them should say who is responsible for it, how they can be contacted and confirmation that the source of the funding comes from a legally permissible source within the United Kingdom.

Where an individual or organisation is not prepared to provide that information the advertisements could not be posted as they would be illegal. Where they are posted, the Electoral Commission should have the power to require the social media platform to remove them within the hour and provide it with the identify of who’s behind them. The commission also needs the ability to issue an immediate desist notice to prevent further postings and to prosecute those responsible for such advertisements through the criminal courts.

The challenge we face in protecting our democracy is greater today than at any time in our history. We all need to play our part to protect it. Government, opposition, political parties, civil society, campaigns and campaigners can come together to agree the rules that will deliver the free and fair elections we all cherish.

Roy Kennedy

Roy Kennedy is a Labour peer and a member of the Fabian Society executive committee.

@LordRoyKennedy

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