What are the rules on influencing elections?

17.05.17 | |

 

What are the rules on influencing elections?

 

 

Rules of law control the financial activities of political parties and other campaigners at major elections and referendums. What are those rules? What happens when those rules are not followed? What regulation exists to ensure compliance with those rules? Rules and guidance apply to discrete categories (sometimes those categories can overlap) of persons who associate with one another for the purpose of seeking to influence the outcome of referendums and elections. Those categories cover political parties, candidates (and their agents), and non-party campaigners. Functions of the UK Electoral Commission, an independent body with statutory functions, include keeping and monitoring the registers of political parties in Great Britain and Northern Ireland. The Electoral Commission has statutory responsibility to oversee elections and to regulate political finance in the UK. How does it do that?

 


What has the press recently reported about supposed influencing of elections?

 

On 3rd May 2017, Mrs Theresa May was reported in The Financial Times as having accused leading lights among European Union institutions of threatening the United Kingdom – and seeking to influence the election called for June 2017. The FT reported that Mrs May had, in terms, made the accusation that Eurocrats sought to interfere with, by influencing, the outcome of the UK election in June. ‘Theresa May has accused “European politicians and officials” of threatening Britain and trying to sabotage her attempt to win the general election in an apparently deliberate move to stoke Brexit tensions with Brussels.’

 

Mrs May said this, speaking on the steps of Number Ten:

 

In the past few days we have seen just how tough these talks are likely to be. Britain’s negotiating position in Europe has been misrepresented in the continental press. The European commission’s negotiating stance has hardened. Threats against Britain have been issued by European politicians and officials. All of these acts have been deliberately timed to affect the result of the general election that will take place on 8 June.
 

The point is that the issue of unfair – and unlawful – influencing of elections may take several forms, all of which do not warrant investigation for possible legal action. Allegations of improper influencing of elections will vary – from the specific, credible and evidence-based to those more generally (perhaps improbably) stated. The UK Electoral Commission is concerned with undue influence prior to and at elections. The Electoral Commission is unlikely to inquire into whether there is substance to Mrs May’s claims. Whilst the Electoral Commission might well be interested in allegations about non-specific persons or groups seeking to exercise EU-based influence, presumably operating overseas, the Commission’s interest would depend if donations or loans (say, from foreign donors or foreign companies channelling donations through subsidiary UK companies) were what founded the allegation. Mrs May has not said or suggested this. The Committee on Standards in Public Life has previously recommended that, to prevent donations and loans from foreign companies (a policy intention underlying electoral laws), it should be necessary for a subsidiary to show that it was carrying on a genuine business within the UK and was generating income here sufficient to fund any donation. That recommendation has yet to be given teeth and bite in law. Lack of specificity to Mrs May’s stated fears do not prompt or require action to be taken by the Electoral Commission. In any event, the Commission’s statutory remit is to regulate political finance in the UK as that bears on the plurality and health of political debate.

 

Lobby groups: what are the rules?

 

Essentially, the Electoral Commission’s regulation of lobby groups is directed at permissible and impressible donors and lenders. The Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014 came into force on 19th September 2014. Its short-hand title is ‘the Lobbying Act 2014’. The 2014 Act significantly widened the types of organisation that are eligible to register as a non-party campaigner at an election. Campaigners spending more than a certain amount on general campaigning must register with the Electoral Commission. There are rules on campaigning. The mischief targeted by those rules is to do with spending and donations that (in the view of the Electoral Commission, on a prima facie case analysis) do or may unduly influence an election. The Electoral Commission exercises control over, and monitors, the fairness and balance of influence asserted by groups before and during an election. Who can make and accept donations, for the purpose of campaigning? Who can make and accept loans, for the purpose of campaigning? These rules govern two types of non-party campaigns: local campaigns and general campaigns. Non-party campaigners are individuals or organisations that campaign prior to and during elections, whilst not standing as political parties or candidates. Such individuals or organisations are known, for the purposes of electoral law, as ‘third parties’. Local campaigns are non-party campaigns acting for or against a candidate or candidates: their activities are focused in a particular constituency, ward or other electoral area. General campaigns are non-party campaigns for or against a political party or particular categories of candidates. These campaigns may (but need not) include campaigns on policies or issues closely associated with a particular party or category of candidates.

 

Campaigners required to register with the Electoral Commission must record their campaign spending. It is essential that such campaigners record all donations they have received as contribution toward spending on campaigning. Campaigners so required to register must ensure to send this information to the Electoral Commission in a so-called ‘spending return’, after the election has concluded by way of declared outcome. The Electoral Commission publishes recognised third party spending returns online, on an open access source webpage. This ensures there is transparency about campaign spending at elections. The webpage is frequently viewed by journalists and others who monitor and report on the financing of electoral campaigns. 

 

 

Media groups: what are the rules?

 

Media groups often want to track and to publish general trends in the electorate.
 

Many want to find and influence potential voters.
 

Persons or groups seeking to influence the process and outcome of an election now have technical means to analyse extremely large and varied datasets. These can include traditional datasets – such as the electoral register maintained by the Electoral Commission. Other information which people have made publicly accessible includes information posted on Facebook, Twitter and other social media. Research and profiling carried out, or commissioned, by political parties typically makes use of analytical tools that combine population profiling using these traditional and other datasets. Whatever the interest, such use of information is subject to the Data Protection Act 1998 (as amended) if it involves data from which living individuals can be identified. Unless data is sanitised or anonymised, use of data carries the risk of tending to identify individuals.

The Information Commissioner’s Office (‘the ICO’) has published guidance on political campaigning. The guidance, which covers both organised, commercial (and mainstream or other) press and broadcasters and some (depending on the type of association) so-called ‘citizen journalists.’ The guidance to media groups covers the law on privacy, data protection and the Data Protection Act, and the regulation of private and electronic communications. At paragraph 6 of the guidance, the ICO advise, in answer to the question ‘Why comply?’:
 

The actions of a political campaign come under close scrutiny from the public and the media. It is not just in an organisation’s interests to act lawfully, but it should also show respect for the privacy of the individuals it seeks to represent, by treating them fairly. Treating individuals fairly includes using their information only in a way they would expect, while respecting any preferences they have expressed about not receiving direct marketing (subject to the right of a political party, referendum campaigner or candidate to send a Freepost mailing at a particular election or referendum).
 

Marketing by electronic email is a particular nettle that the ICO keenly grasps.
 

The ICO guidance reiterates the legal obligations now familiar to most organisations: the activities and conduct of organisations must comply, communicating with individuals by electronic mail, with the Data Protection Act 1998 (as amended) and the Privacy and Electronic Communication (EC Directive) Regulations 2003 (‘PECR’). A broad, purposive and inclusionary approach is taken to the definition of ‘electronic mail’. It includes email, text message, social media, video message and voicemail. Organisations must have an individual’s specific consent to communicate with them by electronic mail. In all such communications, an organisation must identify itself. It must provide an effective correspondence address that can be contacted by individuals, so that objections to such mail can be registered. Individuals must be able to so state that further communications are unwelcome and should not be made. Where an organisation has collected email addresses or mobile phone numbers whilst involved in previous campaigns, local or national, prior consent is required to hold and also to use those contact details. Organisations state, upon request, the basis on which those contact details were collected originally. These are prior conditions to lawful use of such information by an organisation that seeks to use those contact details to promote subsequent campaigns by electronic mail including text messages and emails.

 

 

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