Elections Bill

Lord Clement-Jones Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 28th March 2022 Lords Chamber

Moved by

[Lord Clement-Jones]

180A: Clause 39, page 48, line 28, leave out “reasonably practicable” and insert “possible”
Member’s explanatory statement
This amendment replaces “if it is not reasonably practicable to comply” with “if it is not possible to comply” to ensure that the majority of electronic material is within scope of the bill’s intentions.

[Lord Clement-Jones (LD)]

My Lords, I shall also speak to Amendments 194A, 194B, 196A and 212C. I am a relative interloper on this Bill as I was not able to speak at Second Reading. Part 6 has taken a long time to come in Committee, but the digital aspects of election campaigns are nevertheless of great importance. For the convenience of the House, I thought it best to group all these digital amendments together, although they cover rather different aspects of digital campaigning.

Before I start, I will say that I was looking forward to a joust with the Minister, the noble Lord, Lord True, but I send my best wishes to him for a speedy Covid recovery. On the other hand, it is a pleasure to see the versatile noble Earl, Lord Howe, taking part in these proceedings.

Digital campaigning is of growing importance. It accounted for 42.8% of reported spend on advertising in the UK at the 2017 general election. That figure rose in 2019; academic research has estimated that political parties’ spending on platforms is likely to have increased by over 50% in 2019 compared to 2017. As the Committee on Standards in Public Life said in its report in July last year, Regulating Election Finance:

“Research conducted by the Electoral Commission following the 2019 General Election revealed that concerns about transparency are having an impact on public trust and confidence in campaigns.”


In that light, the introduction of digital imprints for political electronic material is an overdue but welcome part of the Elections Bill.

The proposed regime as it stands covers all types of digital material and all types of appropriate promoter. However, a significant weakness of the Bill may exist in the detail of where an imprint must appear. In its current form, the Bill allows promoters of electronic material to avoid placing an imprint on the material itself if it is not reasonably practicable to do so. Instead, campaigners could include the imprint somewhere else that is directly accessible from the electronic material, such as a linked webpage or social media profile or bio. The evidence from Scotland’s recent parliamentary elections is that this will lead in practice to almost all imprints appearing on a promoter’s website or homepage or on their social media profile, rather than on the actual material itself. Perhaps that was encouraged by the rather permissive Electoral Commission guidance for those elections.

Can this really be classed as an imprint? For most observers of the material, there will be no discernible change from the situation that we have now—that is, they will not see the promoter’s details. The Electoral Commission also says that this approach could reduce transparency for voters if it is harder to find the imprint for some digital campaign material. It seems that

“if it is not reasonably practicable to comply”

will award promoters with too much leeway to hide an imprint. Replacing that with

“if it is not possible to comply”

would ensure that the majority of electronic material is within the scope of the Bill’s intentions. What happened to the original statement in the Cabinet Office summary of the final policy in its response to the consultation document Transparency in Digital Campaigning in June last year? That says:

“Under the new regime, all paid-for electronic material will require an imprint, regardless of who it is promoted by.”


There is no mention of exemptions.

The commission says it is important that the meanings of the terms in the Bill are clear and unambiguous, and that it needs to know what the Government’s intent is in this area. In what circumstances do the Government really believe it reasonable not to have an imprint but to have it on a website or on a social media profile? We need a clear statement from them.

As my noble friend Lord Wallace said, Amendments 194A and 196A really should be included in the “missed opportunity” box, given the massive threat of misinformation and disinformation during election campaigns, particularly by foreign actors, highlighted in a series of reports by the Electoral Commission, the Intelligence and Security Committee and the Committee on Standards in Public Life, as well as by the Joint Committee on the Draft Online Safety Bill, on which I sat. It is vital that we have much greater regulation over this and full transparency over what has been paid for and what content has been paid for. As the CSPL report last July said,

“digital communication allows for a more granular level of targeting and at a greater volume – meaning more messages are targeted, more precisely and more often.”

The report says:

“The evidence we have heard, combined with the conclusions reached by a range of expert reports on digital campaigning in recent years, has led us to conclude that urgent action is needed to require more information to be made available about how money is spent on digital campaigning.”


It continues in paragraph 6.26:

“We consider that social media companies that permit campaign adverts in the UK should be obliged to create advert libraries. As a minimum they should include adverts that fit the legal definition of election material in UK law.”


The report recommends that:

“The government should change the law to require parties and campaigners to provide the Electoral Commission with more detailed invoices from their digital suppliers … subdivide their spending returns to record what medium was used for each activity”


and

“legislate to require social media platforms that permit election adverts in the UK to create advert libraries that include specified information.”

All those recommendations are also contained in the Electoral Commission report, Digital Campaigning: Increasing Transparency for Voters from as long ago as June 2018, and reflect what the Centre for Data Ethics and Innovation set out in its February 2020 report on online targeting in specifying what it considered should be included in any such advert library. The implementation of these recommendations, which are included in Amendment 196A, would serve to greatly increase the financial transparency of digital campaigning operations.

In their response to the CSPL report, the Government said:

“The Government is committed to increasing transparency in digital campaigning to empower voters to make decisions. As part of this, we take these recommendations on digital campaigning seriously. As with all of the recommendations made by the CSPL, the Government will look in detail at the recommendations and consider the implications and practicalities.”


The Public Administration and Constitutional Affairs Committee report last December followed that up, saying at paragraph 216:

“The Government’s response to the CSPL report on electoral finance regulation provides no indication of which of its recommendations (not already included in the Bill) the Government is likely to adopt … prioritise for consultation or when or how the Government proposes to give legislative effect to recommendations that will not be included in the Bill. The Government should give clarity on its next steps in this regard.”


So the time has come for the Government to say what their intentions are. They have had over six months to do this, and I hope they have come to the conclusion that fully safeguards our democracy. I hope the Government will now see the merits and importance of those amendments.

On Amendment 194B, the CSPL also recommended changes to electoral law regarding foreign actors. We had some discussion about this issue during the debate on Amendment 35. The CSPL says at paragraph 6.29 of its report:

“As we discuss in chapter 4, the rules on permissible donations were based on the principle that there should be no foreign interference in UK elections. However, the rules do not explicitly ban spending on campaign advertising by foreign individuals or organisations.”


It specifically refers to the Electoral Commission’s Digital Campaigning report, which said:

“A specific ban on any campaign spending from abroad would … strengthen the UK’s election and referendum rules.”


It quoted the DCMS committee’s February 2019 report, Disinformation and “Fake News”, which said that

“the UK is clearly vulnerable to covert digital influence campaigns”,

and the Intelligence and Security Committee report, which stated that if the commission

“is to tackle foreign interference, then it must be given the necessary legislative powers.”

These are powerful testimonies and recommendations from some very well respected committees. As a result, the CSPL recommended:

“In line with the principle of no foreign interference in UK elections, the government should legislate to ban foreign organisations or individuals from buying campaign advertising in the UK.”


This is very similar to a recommendation in the Electoral Commission’s Digital Campaigning: Increasing Transparency for Voters report of 2018, which I referred to earlier. In response, the Government said: “We are extending this”—the prohibition of foreign money—

“even further as part of the Elections Bill, to cover all third-party spending above £700 during a regulated period.”

However, the current proposals in the Bill have loopholes that foreign organisations can readily use, for instance through setting up multiple channels. A foreign actor could set up dozens of entities and spend £699 on each one—something very easy for online expenditure.

Amendment 194B would ensure that foreign entities were completely banned from participating at all and would make absolutely certain that the Government’s intentions were fulfilled. Again, I hope that the Minister will readily accept this amendment as strengthening the Bill against foreign interference.

Turning to Amendment 212C, tackling societal harms caused by misinformation and disinformation is not straightforward, as our Joint Committee on the Online Safety Bill found. However, consistent with the report of the Lords Select Committee on Democracy and Digital Technologies, Digital Technology and the Resurrection of Trust, chaired by the much-missed Lord Puttnam, we said:

“Disinformation and Misinformation surrounding elections are a risk to democracy. Disinformation which aims to disrupt elections must be addressed by legislation. If the Government decides that the Online Safety Bill is not the appropriate place to do so, then it should use the Elections Bill which is currently making its way through Parliament.”


There is, of course, always a tension with freedom of expression, and as we emphasised in our Joint Committee, so we must prioritise tackling specific harmful activity over restricting content. Apart from the digital imprint provisions, however, the Bill fails to take any account of mounting evidence and concerns about the impact on our democracy of misinformation and disinformation. The long delayed report of the Intelligence and Security Committee on Russian interference of July 2020 was highly relevant in this context, stating:

“The UK is clearly a target for Russia’s disinformation campaigns and political influence operations and must therefore equip itself to counter such efforts.”


Protecting our democratic discourse and processes from hostile foreign interference is a central responsibility of the Government. The committee went on, very topically, to say:

“The links of the Russian elite to the UK—especially where this involves business and investment—provide access to UK companies and political figures, and thereby a means for broad Russian influence in the UK.”


It continued:

“We note—and, again, agree with the DCMS Select Committee—that ‘the UK is clearly vulnerable to covert digital influence campaigns.’”


The online harms White Paper published in April 2019 recognised the dangers that digital technology could pose to democracy and proposed measures to tackle them. Given the extensive regulatory framework being put in place for individual online harms in the Online Safety Bill, newly published last week, why are the Government reluctant to reaffirm the White Paper approach to elections and include it in this Bill? The Government responded to our Joint Committee report on this issue last week by saying that they agreed that misinformation and disinformation surrounding elections are a risk to democracy. However, they went on to say:

“The Government has robust systems in place that bring together governmental, civil society and private sector organisations to monitor and respond to interference in whatever form it takes to ensure that our democracy stays open, vibrant and transparent”


—fine words. They cite the Defending Democracy programme, saying:

“Ahead of major democratic events, the Defending Democracy programme stands up the Election Cell. This is a strategic coordination and risk reporting structure that works with relevant organisations to identify and respond to emerging issues”.


So far, so vague. They continue:

“The Counter Disinformation Unit based in DCMS is an integral part of this structure and undertakes work to understand the extent, scope and the reach of misinformation and disinformation.”

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, I thank all noble Lords who have taken part in this debate, particularly the noble Baroness, Lady Wheatcroft. I am sure that we all wish her well in her lawsuit, which is clearly being taken for all the right reasons. I thank the Minister for her response, particularly her invitation to discuss this further, but the actual response she gave today did not score that many runs as far as I was concerned.

If you look at the intent behind all these amendments —prohibiting foreign interference, greater transparency over digital advertising, expenditure and content, preventing misinformation and disinformation—these are all things we should be striving for to make sure that we have a more vibrant democracy and to prevent damage to it. The Government have pushed back on them, and I am afraid that this is really not acceptable in this day and age. If I could respond to what the noble Lord, Lord Collins, said about digital, there is a difference. We have seen the power of the algorithm to amplify in a really unhelpful, dangerous and sometimes harmful way as far as individual harms are concerned, and it is true of democracy at large as well.

I take the point of the noble Lord, Lord Mann. He is clearly an extremely creative campaigner, and walks around with an electronic sweater that advertises—or used to advertise—his electoral qualities. We have to be alert to new forms of campaigning, but we are where we are; this Bill purports to be a way of dealing with digital campaigning, but it does not do the full job. That is exactly the point that we really need to be aware of.

I heard what the Minister had to say about “reasonably practicable” and so on, but the Electoral Commission guidance itself was not that clear for the Scottish parliamentary campaign. It was quite permissive, so as a result, the imprint appeared mostly either in the social media bio or on the website. It did not appear on the actual material itself, so the intent there was not achieved, and I doubt very much, if the guidance is the same—based on the same wording—that that will not be the case in the implementation of this particular provision. The leeway is too great, so it is not comprehensive.

As far as the other aspects go, I will look very carefully at what the Minister said, but, as far as advert libraries are concerned, she is repeating what the Government have said on a number of occasions: “Oh, fine, social media are already doing this.” The whole purpose of regulation in this area, however, is to specify what needs to be contained in those advert libraries. It is not enough to say, “Oh, yes, Facebook is doing it here and Twitter is doing it there”—although Twitter is no longer doing political adverts, there are other platforms such as Instagram.

As far as foreign actors are concerned, the Minister has simply repeated my own words back to me about the £700 limit, so I do not think we advanced the argument very far. As for false information, misinformation, or disinformation, the example I gave in Amendment 212C was simply, in a sense, designed to elicit a response from the Government about their intentions. Clearly, they do not seem to have any particular intention, despite the fact that their White Paper on online harms actually dealt with the subject fairly comprehensively. The question comes back to the Government about misinformation and disinformation. Their response to a whole range of committees—the CSPL, the ISC, and the Electoral Commission itself—seems to be pretty blithe. The question increasingly is: if they are not prepared to regulate misinformation or disinformation, which are threats to our democracy, what are they going to wait for: until we have a clear electoral travesty? If not now, when? No doubt, we will return to this at some later stage, but in the meantime, I beg leave to withdraw my amendment.

Amendment 180A withdrawn.