Photo: Yui Mok/PA Archive/PA Images

Rules of the political game: why election law is not fit for purpose

Technology has changed the nature of campaigns yet regulation has not kept up
October 6, 2019

Law seeks to regulate political activity in many ways. Sometimes the interplay of law and politics is dramatic. For example, in the US, the ancient legal weapon of impeachment looks as if it may be deployed against the sitting president. Back at home, in September, the Supreme Court of the UK declared that a parliament had not been prorogued and that a prime minister had been unlawful in advising the sovereign.

But there are many more mundane overlaps between law and politics that are just as significant. Take the increasingly urgent question of the legal controls on election campaigning and finance. Especially with a general election looming, it is worth pausing on them. Trans-border flows of information and data, in particular, have overtaken electoral laws designed for a different era.

In the UK this has been most evident in the ongoing fallout from the 2016 EU referendum campaigns. Over three years later there are still concerns unresolved and abuses unaddressed. Had that referendum been legally binding, as opposed to merely advisory, there is little doubt the result would by now have been set aside. As the result was regarded as binding only in a political sense, the problems in the campaigns have had no formal effect on the government’s resolution to give effect to the supposed “people’s will.”

In the US the irregularities in respect of Trump’s campaign and its connections with Russia similarly did not have any direct legal consequences. Robert Mueller’s report came and went this spring, and provided more than enough material for impeachment (and, if Trump was not in office, an indictment) in respect of obstruction of justice. But for political reasons no impeachment seemed viable then (and Trump managed to switch the conversation on to horrors that weren’t in the report instead of those that were). The result of the 2016 presidential election was not affected and the candidate who won the electoral college (if not the popular vote) simply continued in office.

The consequences of both these 2016 votes were momentous. Two of the wealthiest and most powerful nations on Earth are having political breakdowns brought about by the results of dubious ballots, and in both situations there has been little or nothing that the law could do about their consequences. Political problems should, where possible, have political solutions. But modern elections have always taken place in a legal framework, and without such a framework there would be a free-for-all. It would be like an athletics championship where not only the drugs restrictions were abandoned but also any prohibition on motorised assistance. There have to be some rules to this game—and some consequences for breaking them.

"The law is failing to regulate new forms of political activity"
But saying that the law should have a role in regulating elections and referendums does not mean the law can effectively be brought to bear. Not all problems have easy legal solutions. Take advertising: laws which provide for how much can be spent locally on leaflets and billboards are pointless in the days of targeted (and hard to monitor) adverts on social media coming from places far away. Even laws governing funding on a national basis seem to be impotent. 

And even where the law has some bite, and there are fines and sanctions, there is a sense of futility. When serious influence is at stake, five-figure fines and critical press releases are a modest and unavoidable cost of doing political business. And imposing penalties for technical breaches of the rules can trigger offsetting challenges on technical grounds. The recent successful appeal of the Vote Leave campaigner Darren Grimes was based as much on a technicality as the decision to fine him in the first place.

Invoking the criminal law makes things worse. Criminal proceedings and convictions cannot be taken lightly, and so the criminal law rightly requires due process and a high standard of proof. But this makes the criminal law clumsy for regulating many things, including campaigning. This was seen in the giddy excitement at “Tory election fraud” allegations (about mis-declared and undeclared campaign spending) after 2015, when some expected a rash of prosecutions, convictions, disqualifications from parliament and lost seats. But in the end there was only one prosecution of an MP, and he was acquitted.

And so there was no real surprise that in September the National Crime Agency and the Crown Prosecution Service decided not to continue with their investigation into the spending of the Leave.EU campaign.  Although there was clear non-compliance with electoral legal requirements there was insufficient evidence that any criminal offences had been committed.

What makes the legal failures more striking is that many unhappy with Trump or with Brexit looked to the legal process as somehow being a means to right the perceived political wrongs. The Mueller investigation or the investigations into the Leave campaigns were seen as cavalry that would ride in and save the day. But when the legalistic processes came to their ends, the perceived political wrongs were still there. The investigations simply created unrealistic expectations that the processes could not meet. And attention that could have been devoted to political opposition to Trump or Brexit seemed wasted with the distractions.

If the law is not working here that could be because the nature of political campaigning is changing rapidly. National borders seem not to matter, let alone constituency boundaries. If the law is to regulate new forms of digital activity it needs to change.

There needs to be an entirely fresh start. Rather than piecemeal amendments of the existing laws, there needs to be a fundamental rethink. What is being done by those seeking political power and their supporters? How can their behaviour actually be influenced and genuine abuses curbed? What role, if any, is there for criminal law? What sanctions are worth the effort of imposing? Our ancestors thought these through when faced with novelties in their day, from the spread of a free press to the emergence of mass democracy. If politics is to remain practically subject to the rule of law, we need to be just as radical.